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

Individual Case (CAS) - Discussion: 2026, Publication: 114th ILC session (2026)

Written information provided by the Government

The Government has provided the following written information as well as the following documents: 25th Commission for Employment Equity (CEE) annual report 2024–25; Employment Equity Amendment Act, 2022; General Administrative Employment Equity Regulations; Regulations on the five-year sector numerical employment equity (EE) targets; judgment on Case No. JS1030/17; and the comments from the Congress of South African Trade Unions (COSATU).

The Committee of Experts asked the Government to continue to strengthen its efforts in promoting equality of opportunity and treatment in employment and occupation of all the designated groups and to provide information on:

(i) Results achieved in transforming the labour market towards a more equitable representation of the designated groups

The right to human dignity and the achievement of equality are core values enshrined in the Constitution of the Republic of South Africa (1996), the country’s supreme law. To give effect to the right to equality in employment, the Employment Equity Act No. 55 of 1998 (EEA) was enacted. Its purpose is to achieve workplace equity and equality by promoting equal opportunity and fair treatment, eliminating unfair discrimination and implementing affirmative action measures. These measures are designed to redress the historical disadvantages experienced by designated groups, namely black people, women and persons with disabilities, to ensure their equitable representation across all occupational levels.

To demonstrate its commitment to the EEA’s objectives, the Government continues to strengthen its compliance assessment and monitoring mechanisms, tracking progress in transforming workplaces and fostering inclusive, discrimination-free environments. Although some progress has been observed, analysis of EE data from the 2024 reporting cycle (submitted by designated employers – those with 50 or more employees, or fewer than 50 but meeting a designated annual turnover threshold) reveals that the South African labour market still exhibits significant racial, gender and disability disparities.

Workforce representation trends indicate a labour market structure that remains hierarchical, first by race, then gender and finally disability. The two uppermost strategic decision-making levels, top and senior management remain racialized and gendered, with white individuals and men predominating. At the top management level, whites hold 61.1 per cent of positions and men 72.5 per cent, while persons with disabilities hold only 1.9 per cent. At senior management level, whites occupy 47.3 per cent and men 61.7 per cent, with persons with disabilities holding just 1.4 per cent of such positions.

Notably, most designated groups, particularly black women and persons with disabilities continue to be concentrated in the lower to middle management levels. For example, at the professionally qualified/middle management level, black women (African, coloured and Indian) account for 35.6 per cent of positions, while persons with disabilities account for only 1.2 per cent. At the semi-skilled level, black women hold 42.9 per cent of positions but persons with disabilities hold only 1.0 per cent. Although women’s representation in lower to middle management has encouragingly increased, this upward trend has not yet translated into substantial gains at senior and top management levels. For further details, see the 2024–25 EE annual report of the CEE (25th CEE annual report).

(ii) Assessment of affirmative action measures (particularly the five-year sectoral numerical targets for designated employers introduced by EE Amendment Act No. 4 of 2022) to determine whether they remain effective and consistent with the principle of non-discrimination

The commencement date of Employment Equity Amendment Act No. 4 of 2022 (EE Amendment Act, 2022) was proclaimed by the President in Government Gazette No. 51684 dated 28 November 2024. The Act took effect on 1 January 2025. Its key objectives are to empower the Minister to regulate sector-specific EE numerical targets to ensure equitable representation of suitably qualified persons from designated groups; to reduce the regulatory burden on small businesses (those employing 1–49 persons); and to promulgate section 53 of the EEA, which makes an EE Compliance Certificate a prerequisite for accessing state contracts and doing business with any organ of the State.

On 15 April 2025, on the advice of the CEE, the Minister published two sets of EE Regulations: General Administrative Regulations (GG No. 52515) and the Regulations on the five-year sector numerical EE targets (GG No. 52514). These regulations aim to provide employers and employees with critical guidelines on effectively interpreting and implementing the provisions of the EE Amendment Act, 2022, including the five-year sector-specific EE targets at the workplace level.

The regulations offer flexibility in implementing these targets by requiring designated employers (those with 50 or more employees) to, after consulting with registered trade unions or employee representatives, analyse their current workforces, review their own self-regulated annual EE targets and align their EE Plans with the applicable five-year sector targets. The new EE Plans commenced on 1 September 2025.

All designated employers were therefore required to submit baseline EE reports, including their first year annual EE targets toward the five-year sector targets, during the 2025 EE reporting period (1 September 2025 to 15 January 2026). Consequently, the first compliance assessment of these first-year annual targets across all 18 economic sectors will be conducted only in the 2026 EE reporting cycle, after designated employers submit their subsequent EE reports (1 September 2026 to 15 January 2027). Once the 2026 EE data analysis is finalized, the CEE will publish the 2026–27 annual EE report on the status of the South African labour market.

(iii) Impact of implementing section 53 of the EEA as amended (measures to evaluate assessment criteria for issuing employment equity compliance certificates, and the number of certificates denied based on this assessment)

The EE General Administrative Regulations prescribe the assessment criteria for issuing EE Compliance Certificates under section 53 of the EE Amendment Act, 2022. These regulations include Regulation 16(4), EE reporting forms EEA2 and EEA15 and two distinct EE Compliance Certificate templates (EEA16A and EEA16B), which set out different compliance criteria for designated and non-designated employers.

For non-designated employers, the criteria include compliance with the National Minimum Wage Act, 2018 and Chapter II of the EEA (Prohibition of Unfair Discrimination) over the previous 12 months. For designated employers, the assessment criteria additionally require submission of the annual EE report, achievement of annual EE targets (with justifiable reasons for any non-compliance) and continued compliance with both the National Minimum Wage Act and Chapter II of the EEA over the same period.

The compliance assessment and certificate issuance process has been fully automated within the Employment Equity System, accessible through the Department of Employment and Labour’s online services platform (www.labour.gov.za). Automation enhances data integrity, accessibility, efficiency and user-friendly self-service, while minimizing turnaround times and reducing fraud risk. Manual issuance of EE Compliance Certificates is prohibited.

The first certificates were issued from 1 September 2025. As of 15 January 2026, a total of 25,913 EE Compliance Certificates had been issued: 11,694 to non-designated employers and 14,219 to designated employers. To date, no employer has been denied a certificate. Notably, employers are only required to produce the EE Certificate of Compliance as a prerequisite for access to state contracts and for doing business with any organ of the State. Therefore, it remains too early to assess the full impact of section 53 of the EEA as amended.

(iv) Actions taken within the framework of the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance, 2019–24, including obstacles identified and results achieved

The South African Constitution protects the rights to dignity, equality and fair labour practices under the Bill of Rights. South Africa is committed to eliminating, preventing and managing all forms of direct and indirect discrimination in the workplace, with the aim of creating safe environments free from unfair discrimination.

The EEA governs equity in the workplace. Section 6(1) of the EEA prohibits direct or indirect unfair discrimination against an employee in any employment policy or practice on grounds including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or any other arbitrary ground. Section 5 requires all employers to take steps to eliminate unfair discriminatory policies and practices that cause workplace inequalities. Section 54 empowers the Minister of Employment and Labour to issue codes of good practice on the advice of the CEE.

Pursuant to section 54, South Africa issued a Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (the Harassment Code) on 18 March 2022. This Code addresses the prevention, elimination and management of all forms of harassment, including racial discrimination and harassment that pervade the workplace. South Africa regards all forms of harassment as unfair discrimination, constituting a barrier to workplace equity and equality. Accordingly, all forms of harassment, sexual harassment, gender-based violence and harassment, bullying and racial, ethnic or social origin harassment must be eliminated. Harassment may include physical, psychological, emotional and sexual abuse.

The Harassment Code provides protection against racial discrimination and harassment. Section 10 of the EEA empowers the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Courts to provide dispute resolution mechanisms and remedies for workplace racial discrimination. Under section 50(2) of the EEA, both the CCMA and the Labour Court may issue any appropriate, just and equitable order, including:

(a) payment of compensation and/or damages by the employer to the employee;

(b) an order directing the employer to take steps to prevent future unfair discrimination or similar practices affecting other employees; and

(c) an order directing an employer (other than a designated employer) to comply with Chapter 3 as if it were a designated employer, directing the removal of an employer’s name from the register referred to in section 41, or ordering publication of the Court’s decision.

The Labour Court has already issued remedies for racial discrimination and harassment using the Harassment Code, as demonstrated in the case of Solidarity obo Oosthuizen v South African Police Service and others ((JS1030/17) [2023] ZALCJHB 4; [2023] 3 BLLR 258 (LC)). Furthermore, annual EE advocacy campaigns are conducted nationwide to raise awareness and educate labour market stakeholders including employers, employer organizations, employees, trade unions, human resources managers and practitioners, academics and civil society on the EEA and all forms of harassment, including racial discrimination.

Discussion by the Committee

Chairperson – Ladies and gentlemen, we are going to begin the third case of the day which relates to the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), by South Africa. We have 21 speakers on the list of speakers for the discussion of this case, and the Officers have therefore decided to reduce the maximum time for statements from five to three minutes.

I invite the Government representative of South Africa, the Acting Deputy Director-General of Labour Policy and Industrial Relations, to take the floor.

Government representative – Let me begin by expressing an apology from Honourable Nomakosa Zanamet, Minister of Labour from South Africa. She could not make it as she was presenting the budget yesterday and the debate today. We take this opportunity and appreciate the opportunity to appear before this Committee regarding the application of Convention No. 111 concerning discrimination in employment and occupation. At the outset, we reaffirm our unwavering commitment to the principles and objectives of the Convention and to promoting equality of opportunity and treatment in employment and occupation.

The elimination of discrimination and the advancement of substantive equality remain central pillars of our constitutional democracy and labour market framework. The Constitution of the Republic of South Africa places human dignity, equality and freedom at the heart of our democratic order. These constitutional values are given effect through the Employment Equity Act of 1998, which seeks to eliminate unfair discrimination and promote the equitable representation of historically disadvantaged groups through affirmative action measures. South Africa welcomes the Committee of Experts’ observations and appreciates the opportunity to provide an update on developments since the Committee of Experts’ previous examination of this case. Allow me to address the four matters raised by the Committee of Experts.

First, with regard to the results achieved in transforming the labour market towards more equitable representation of designated groups: South Africa continues to strengthen its compliance, monitoring and enforcement mechanism to advance workplace transformation and promote inclusive discrimination-free workplaces. The latest Employment Equity data derived from the 2024 reporting cycle submitted by designated employers – and I want to emphasize designated employers – confirms that progress has been made in certain areas. However, they also demonstrate that the labour market continues to reflect deep historical inequalities and structural patterns of exclusion. The data show that workforce representation remains stratified along racial, gender and disability lines. Race remains the primary determinant of occupational positioning, followed by gender and disability status. Top and senior management positions remain disproportionately occupied by white individuals (comprising 61.1 per cent) and men (comprising 72.5 per cent) while black women and persons with disabilities continue to be concentrated in the lower and middle occupational levels. These patterns demonstrate that significant barriers to equitable representation persist throughout our labour market. While the Government welcomes the increasing participation of women at lower and middle management levels, this progress has not yet translated into equitable representation at senior leadership levels. These findings confirm that the legacy of past discrimination remains deeply embedded in the labour market outcomes and underscores the ongoing need for targeted measures to accelerate workplace transformation.

Frustratingly, these inequalities persist despite significant efforts by the State to strengthen monitoring and enforcement. During the 2025–26 financial year, the Department of Employment and Labour targeted 3,324 employment equity inspections, including Director-General reviews, reassessments and monitoring interventions. A total of 1,948 employers were DG-reviewed. However, only 181 employers were found compliant, representing a compliance rate of 9 per cent. And 1,767 employers were found non-compliant and issued with DG recommendations for corrective action. I want to emphasize that. So, it is not punitive but corrective action. May I also hasten to add that these findings demonstrate both the scale of the transformation challenge that remains before us and the seriousness with which the Government continues to monitor and enforce compliance with employment equity obligations.

The second issue raised by the Committee of Experts concerns assessment of affirmative action measures, particularly the implementation of the five-year sector numerical targets introduced through the Employment Equity Amendment Act of 2022. The Government wishes to emphasize that these measures were developed within the framework of the Employment Equity Act and are aimed at advancing substantive equality and equitable representation, consistent with both our Constitution and the Convention. The Employment Equity Amendment Act No. 4 of 2022 came into operation on 1 January 2025, following its proclamation by the President. The Employment Equity Amendment Act pursues three principal objectives. Firstly, it empowers the Minister of Employment and Labour to establish sector-specific employment equity numerical targets to accelerate equitable representation of suitably qualified persons from designated groups (women of all racial groups and persons with disabilities, irrespective of race and gender). Secondly, it reduces regulatory burdens on smaller enterprises - those that employ fewer than 50 workers - by exempting these employers from complying with the five-year sector-specific employment equity targets. Thirdly, it operationalizes section 53 of our Employment Equity Act by linking access to State procurement opportunities to compliance with employment equity obligations.

On 15 April 2025, following recommendations from the Commission for Employment Equity, the Minister promulgated both the General Administrative Regulations and the Five-Year Sector Numerical Targets Regulations. These Employment Equity Regulations provide practical guidance to employers and workers on implementing the amended legislative framework and establish the five-year sector-specific targets across 18 sectors of our economy. The sectoral employment equity targets do not constitute rigid racial quotas, nor do they require the appointment or promotion of unqualified persons. Employers remain obliged to consider qualifications, skills, experience, operational requirements and the availability of suitably qualified candidates.

Importantly, the sectoral employment equity targets framework remains flexible and consultative. Designated employers are required to consult with representatives of trade unions and employee representatives, undertake workforce analysis, establish workplace specific targets and align their Employment Equity Plans with the broader five-year sectoral targets. The new Employment Equity Plans commenced on 1 September 2025. During the 2025 reporting cycle, all designated employers submitted baseline employment equity reports along with their own self-regulated first year annual targets aligned with the sectoral employment equity target framework. Consequently, the first meaningful assessment of progress against these annual targets can only occur following the 2026 reporting cycle when employers submit their next round of reports between September 2026 and January 2027.

For this reason, it is presently premature to draw definitive conclusions regarding the effectiveness of the sector targets. The Commission for Employment Equity will conduct a comprehensive assessment once sufficient information data becomes available and we will publish its findings in the 2026–27 Employment Equity Annual Report.

The third matter concerns the implementation of section 53 of the Employment Equity Act and the issuing of Employment Equity Compliance Certificates. The Government has adopted detailed Employment Equity Regulations prescribing the criteria and procedures for issuing these Employment Equity Compliance Certificates. The compliance assessment criteria differentiates between designated employers – those that employ 50 or more employees – and non-designated employers – those that employ fewer than 50 employees. For non-designated employers, certification requires compliance with the National Minimum Wage Act of 2018 and the anti-discrimination provisions in Chapter II of the Employment Equity Act during the preceding 12-month period. For designated employers, the assessments include additional requirements, namely the submission of annual employment equity reports, the achievement of annual employment equity targets or the provision of justifiable reasons where targets have not been met, and continued compliance with the National Minimum Wage Act and Chapter II of the Employment Equity Act. The certification process is fully automated through the Department of Employment and Labour’s Electronic Employment Equity System to enhance data integrity and reduce fraud. The first Employment Equity Compliance Certificates were issued for the first time from 1 September 2025. As of 15 January 2026, a total of 25,913 Employment Equity Compliance Certificates had been issued. Of these, 11,694 certificates were issued to non-designated employers and 14,219 certificates were issued to designated employers. Let me point out that, to date, no employer has been denied an Employment Equity Certificate of Compliance.

The implementation of the amended Employment Equity Framework has also generated substantial employer engagement. Since the operationalization of the Employment Equity Amendment Act on 1 January 2025, more than 14,000 designated employers have submitted Employment Equity Reports, while more than 11,000 non-designated employers have also applied for Employment Equity Compliance Certificates. These figures, in our view, demonstrate that employers across our economy are actively engaging with the new framework and provide an important baseline against which future progress can be assessed. The Government nevertheless notes that section 53 remains in the early stages of implementation. Since certificates become relevant primarily when employers seek access to state procurement opportunities, it remains too early to undertake a comprehensive assessment of the full impact of this provision.

The fourth issue concerns the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance. South Africa remains firmly committed to combating all forms of discrimination, racism, xenophobia and intolerance both within and beyond the workplace. The Constitution guarantees the right to dignity, equality and fair labour practices. These rights are reinforced through the Employment Equity Act and apply to every worker, irrespective of origin or status. Consequently, section 6 of the Act prohibits both direct and indirect unfair discrimination on a comprehensive range of grounds including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion and any other arbitrary ground. In addition, section 5 of the Act requires all employers to take proactive steps to eliminate discrimination policies and practices that perpetuate workplace inequalities. In furtherance of these objectives, South Africa ratified the Violence and Harassment Convention, 2019 (No. 190) in November 2021, and subsequently adopted the Code of Good Practice on the Prevention of Elimination and Harassment in the Workplace in March 2022. The Code recognizes harassment as a form of unfair discrimination and provides guidance on prevention, management and remediation in the workplace.

The Harassment Code has already been applied by the Labour Court in Solidarity obo Oosthuizen v South African Police Service and others with remedies including compensation of 300,000 South African rand, compliance orders and publication of judgments in favour of the complainant. Importantly, South Africa has established effective mechanisms through the Commission for Conciliation, Mediation and Arbitration and the Labour Court to address discrimination and provide appropriate remedies.

We wish to place on record a broader concern regarding the contemporary global environment within which efforts to advance equality, equity and inclusion are being pursued. Across a number of jurisdictions, including in our own country, we are witnessing increasing resistance to measures aimed at redressing historical disadvantage and promoting substantive equality. In this context, South Africa respectfully submits that the purpose of the Convention is not to discourage or penalize bona fide measures adopted by Member States to advance equality and eliminate discrimination but rather to encourage and support such efforts.

The Convention recognizes that formal equality alone is often insufficient to overcome entrenched patterns of exclusion and that positive measures may be necessary to achieve genuine equality of opportunity and treatment. South Africa regards the ILO supervisory system as a vital mechanism for both accountability and support in implementing international labour standards. The issues before this Committee arise in a domestic context where employment equity measures continue to be vigorously debated and contested. Certain aspects of South Africa’s employment equity framework are currently the subject of judicial proceedings before our courts. This reflects the strength rather than the weakness of our constitutional order.

Questions relating to the interpretation and implementation of employment equity legislation are being addressed through established judicial processes that enjoy the confidence of all social partners. In 2025, the High Court declined an application by an employers’ organization seeking to suspend the implementation of the new framework. The appropriate remedy was the upholding of that judicial review, rather than interim relief to suspend the implementation of the five-year sector numerical employment equity targets published in April 2025. Subsequent applications for leave to appeal, just a week ago, were dismissed by both the Supreme Court of Appeal and later the Constitutional Court. South Africa remains committed to respecting the outcome of these processes and to ensuring that labour market transformation continues to be pursued within the framework of the rule of law, constitutionalism and social dialogue. South Africa’s courts and social dialogue institutions continue to enjoy the confidence of the Government, employers and workers, and remain central to labour market stability and dispute-resolution alike.

Against this backdrop, South Africa respectfully appeals to the Committee for its understanding and support. We believe it is important that the supervisory system remains objective, balanced and attentive to national circumstances, particularly where domestic institutions are actively engaged in addressing contested legislative and policy issues. We would be concerned if the ILO supervisory mechanisms were inadvertently used in a manner that undermines domestic dispute resolution processes, encourages forum shopping or is weaponized by parties seeking to achieve, through international processes, outcomes that remain under consideration within national legal systems. Such developments risk weakening confidence in labour market institutions and may ultimately undermine the very social dialogue and institutional stability that the ILO has consistently sought to promote.

We, therefore, respectfully request the Committee to continue supporting Member States that are genuinely striving to advance equality and combat discrimination while giving due regard to national processes, social dialogue institutions and judicial mechanisms that are actively engaged in resolving these complex issues.

Worker members – Convention No. 111 requires ratifying States to declare and pursue a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination.

The Committee of Experts has taken note of several developments in South Africa, while identifying areas where progress and additional clarification are necessary. In particular, the Committee of Experts has requested the Government to continue to strengthen its efforts in promoting equality of opportunity and treatment of all the designated groups in the labour market. It has also requested detailed information on the results achieved in the transformation of the labour market towards a more equitable representation and an assessment of the effectiveness of the affirmative action measures, particularly the five-year sectoral numerical targets introduced under Act No. 4 of 2022 amending the Employment Equality Act, and whether these measures remain in line with the principle of non-discrimination.

Additionally, the Committee of Experts has reiterated its request to the Government to specify the actions taken within the framework of the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance, 2019–24, including the obstacles identified and the results achieved.

Moreover, the Committee of Experts has requested clarification of the implementation of section 53 of the Employment Equality Act, as amended. In particular, it has requested information on the assessment criteria for the issuance of employment equity compliance certificates, the mechanisms in place to assess compliance and the number of certificates denied based on that assessment.

The Worker members would like to recall that the Convention requires States to pursue a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation and to eliminate any discrimination. Article 5 of the Convention also provides that special measures of protection or assistance shall not be deemed to be discrimination. Similarly, the Recommendation that accompanies the Convention recognizes the legitimacy of measures designed to meet the requirements of groups that require special protection or assistance.

In the case of South Africa, we must recognize the historic context that has shaped the profound and persistent inequalities in the labour market. Patterns of exclusion along racial and social lines have had lasting effects on access to employment, education, training and promotions. Policies intended to correct these inequalities are therefore both legitimate and essential.

In that respect we recognize the efforts made to combat the persistent inequalities in the labour market and to improve the representation of the targeted groups. Such efforts are particularly important when patterns of exclusion and disadvantage have deep, historic roots.

In our opinion, special measures aiming to overcome historic and structural inequalities are legitimate and necessary to truly promote equality of opportunity and treatment, including to ensure the ability to seize the opportunities created in this way.

The key question is whether such measures contribute effectively to achieving true equality in practice. Their success should therefore be evaluated not only according to numerical results, but also their ability to dismantle the obstacles that continue to affect workers belonging to disadvantaged groups. We note that the United Nations Committee on the Elimination of Racial Discrimination has expressed concern that the Employment Equity Act now applies only to employers with more than 50 employees, exempting smaller employers from key obligations such as affirmative action and equity plans.

At the same time, it is important that these measures are subject to regular evaluation, which should be evidence-based and undertaken in consultation with the social partners, particularly the trade unions representing the workers concerned. That would help ensure that the measures remain effective, proportionate and responsive to the evolving realities of the labour market.

To that end, the Worker members encourage the South African Government to pursue its efforts in promoting equality of opportunity and treatment in respect of employment and occupation for all workers, in full respect of the Convention. We urge the Government to strengthen its data collection and reporting, to ensure that all measures are subject to regular evidence-based evaluation and to engage in genuine consultation with representative organizations of employers and workers. We hope that the additional information requested by the Committee of Experts will provide a clearer picture of the effectiveness of the measures adopted and the progress made in eliminating discrimination in the labour market.

Employer members – The Employer members acknowledge that the Government of South Africa has taken steps regarding the application of Articles 1, 2 and 5 of the Convention and specifically as it relates to affirmative action concerning discrimination based on race, colour and national extraction. The Government of South Africa enacted legislation, the Employment Equity Act, to achieve equity in the workplace following the end of apartheid. The Act seeks to promote equality of opportunity and treatment in employment and occupation for all designated groups through the elimination of unfair discrimination. The Employment Equity Act also contains, among other things, affirmative action measures, a reporting requirement and penalties for non-compliance.

While the Government of South Africa has taken significant action in law, the Committee of Experts has noted that, in practice, there still appears to be a significant gap between the representation of historically disadvantaged groups in managerial positions in comparison to their representation in the economically active population. In response, the Employers note and recognize that the elimination of historically disadvantaged or designated groups as it relates to employment and occupation, especially through affirmative action, takes time. Therefore, the Employer members ask the Government of South Africa to provide additional information to the Committee of Experts on its efforts to promote equality of opportunity and treatment in employment and occupation for designated groups and also on its efforts regarding affirmative action measures. South Africa ratified the Convention in 1997. The Committee of Experts commented on this case five times in 2025, 2022, 2017, 2015 and 2011.

This is the first time that the Committee is dealing with this case. As you all know, the Convention concerning discrimination in employment and occupation is one of the ILO’s fundamental Conventions and, as such, must be the subject of special attention and priority monitoring. The Convention requires governments to eliminate discrimination in employment and occupation based on protected characteristics including race, colour and national extraction. Article 5 of the Convention permits governments to adopt special measures – often called affirmative action – to meet the particular needs of designated groups which were historically subject to discrimination provided these measures are aimed at achieving substantive equality and are disbanded once these objectives have been achieved. The Committee of Experts dealt with a single issue in its observation. It noted that, despite the efforts of the Government of South Africa, the white population group remains overly represented in top management positions, senior management positions, professional qualified and middle management positions, as well as in the skilled technical and junior management positions. The Employers note that the data provided by the Government of South Africa is from 2022. No further or more recent data was provided. The Employers note that the Government of South Africa has taken measures to apply the provisions of the Convention. These include: (i) labour inspections to assess the implementation of affirmative action in the labour market; (ii) a complaints adjudication mechanism through the Commission for Conciliation, Mediation and Arbitration or the labour courts; (iii) penalties for non-compliance; (iv) reporting requirements; (v) requiring employment equity compliance certificates as a prerequisite for accessing State contracts; and more recently (vi) setting five-year sectoral numerical targets for designated employers.

With respect to the last piece regarding sectoral targets, we as the Employer members wish to note the importance of setting numerical targets for designated employers that take into account geographic, industrial and other contextual factors. We also emphasize the importance of setting targets that are achievable to ensure that employers are not unfairly penalized or disadvantaged. In order to do so, we recognize the importance of meaningful consultations with the employers concerned to ensure compliance in an economically sustainable manner. As mentioned in our introductory remarks, the elimination of discrimination in employment and occupation takes time. This is especially the case in countries like South Africa where differentiation based on race, colour and national extraction was institutionalized in the country’s legal social and economic structures up until the early 1990s.

Worker member, South Africa – We note that our country has been listed for discussions in this Committee under the Convention. Our Government submitted statistics from employment equity data from 2022 which shows that white South Africans remain heavily over-represented in senior positions as follows: the white population which constitutes 8 per cent of the economically active population occupies 62.9 per cent of top management roles; the Indian population: 2.7 per cent of the economically active population occupies 11.2 per cent of top management; the African population, the largest group, which constitutes 80 per cent of the economically active population only occupies 16.9 per cent of top management; while the coloured population: 9.3 per cent of economically active persons only occupies 6.1 per cent of the top management.

The data also shows disproportionate representation in other operational levels as follows: whites hold 50.1 per cent of senior management positions, 30 per cent of professionally qualified and middle management roles, and 16.2 per cent of skilled technical and junior management posts. It is important that we start by clarifying the context and background to this matter, particularly those that hinge on the said Convention. The history of South Africa is a history of apartheid and colonialism. This has shaped the country’s labour market economy and society in general. You cannot talk about South Africa today without confronting its persistent structural and racist accumulation and exclusion of the majority of our people, workers and women in particular.

Prior to democracy, labour laws reserved skilled and managerial jobs for white South Africans. Black people, African, coloured and Indian women and persons with disabilities were systematically excluded from positions of authority. The structure of South Africa is defined by class, racial and gender inequalities which formed the basis of the historic and present agency to address them decisively. It is in that context that we wish to draw the attention of the ILO and our global counterparts to the facts about our policies to reverse apartheid injustices in all sectors of our economy, the labour market and society at all levels. Therefore, the interventions are a transition from a systematic apartheid exclusion to aggressive outcome driven demographic transformation.

It is designed to dismantle historical disadvantages in the workplace and ensure equitable representation of black people, women and persons with disabilities across all occupational levels.

Apartheid was a system based on the exclusion of workers, blacks and women in all economic, political and social opportunities. It guaranteed special privileges to male whites in particular, hence the disproportionate inequalities across all sectors of the economy in our country. That is not decent work for all, but a serious social injustice against workers and the majority in our society. It stands against the very essence of the ILO and its core Conventions.

It is the ILO and its’ constituents that stood by the workers and the people of South Africa during our long and protected struggle and years of apartheid against the black majority. The transition of the democratic South Africa in 1994 and the subsequent policies of transformation bear testimony to the work of the ILO and the successes in advancing decent work and global social justice. The vestiges of apartheid privilege and resistance to equity, social change and transformation have become emboldened by the rise of global racism and apartheid not only in South Africa but globally. This is the primary defining context of our case and the determination of the forces against transformation and their desire to keep apartheid labour market privileges. It is against this background that the social partners agreed upon and put in place the employment equity, black economic empowerment and affirmative action policies, which are a package of measures to address and reverse years of apartheid injustices at the workplace and in society as a whole.

It cannot be correct that blacks, workers and women are excluded from economic and social opportunities even after apartheid ended in 1994. It will be a travesty of justice and an indictment on the ILO, tripartism and social justice. The impact of transformation will be measured by the extent to which historically excluded groups are empowered and included in the new and democratic society. This remains our standard measure of impact and progress. In order to enhance and address the issues raised in the Committee of Experts’ report and other issues pertaining to the enforcement, immigration, labour laws and compliance, our President, Mr Cyril Ramaphosa, in February 2026 announced the appointment of over 10,000 additional permanent labour inspectors to South Africa.

The new inspectors will work alongside the police and the Department of Home Affairs to address compliance and key labour legislation, including the basic conditions of the Employment Act, Labour Relations Act, and Employment Equity and Occupational Health and Safety Act. On the issue of xenophobia, I would like to point out that migration is not new. It is as old as humanity. People have always moved to find food, safety and work. South Africa was built on migration.

For more than 100 years, men from Lesotho, Mozambique and Swaziland, Zimbabwe, Malawi and Zambia came to work in our mines. The Immigration Act 13 of 2002 and the Refugees Act 130 of 1998 govern how the countries manage this immigration and asylum, and addressing definitions, rights, responsibilities and penalties, as well as recent rulings by South African courts, have added clarity to how these laws should be applied, especially regarding detention, deportation and asylum processes. Currently South Africa attracts many immigrants and asylum seekers due to its economic prospects and stability. However, balancing national security and human rights obligations remain a significant challenge. The current socio-economic conditions facing the majority of South Africans have brought into question the capacity of the Government to provide basic services to its citizens amidst the significant influx of immigrants, primarily from neighbouring African countries such as Zimbabwe, Mozambique, Lesotho and Malawi, as well as from other regions including India, Pakistan and Europe.

South Africa has introduced a revised white paper on citizenship, immigration and refugee protection, consolidating previous Acts into a single law and this new law would provide clearer parameters on the treatment and protection of migrants and refugees in our country. South Africa is engaging with the African Union and individual African countries to assure them that xenophobic incidents are being addressed and to maintain regional solidarity. The Government has condemned attacks publicly and emphasized that such violence does not reflect the views of the majority of South Africans or Government employees. I would like to state that the racial inequalities, as per the statistics, are being perpetrated by some employers who remain in their apartheid mindset and who continue to refuse to comply with the Employment Equity Policies of the Government, as well as aiding in the violation of migration laws. As a result, some opportunistic groups take advantage of that.

In addition, the country’s four biggest federations of workers have convened a meeting and resolved to convene a media briefing to condemn the current xenophobic attacks and call on workers and communities to work together in our efforts to bring stability. Lastly, I would like to bring to the Committee’s attention the fact that issues of racism have been in our domestic courts. Our Government and Solidarity Trade Union held a voluntary mediation process and both parties agreed that the commission for reconciliation, mediation and arbitration would mediate. Agreement was reached on the issues raised on the agreement and that agreement was made in order of the labour court. Based on these developments, the case was closed at the ILO.

I call upon the Committee to allow the national process to finalize any pending matters. Our country has a very strong social dialogue system and institutions that are open to all parties concerned.

Employer member, South Africa – I speak on behalf of Business Unity South Africa (BUSA), which is the apex business organization in South Africa representing over 90 per cent of the employers in all economic sectors that are affected by the Employment Equity Act and its regulations. At the outset, let me state that BUSA does not quarrel with the Government’s policy to transform the labour market and improve the representation of previously disadvantaged or designated individuals. In fact, it is a policy that we wholeheartedly embrace. Our issue is with the manner in which the Government seeks to implement the policy.

The Government has published regulations that set granular targets for the employment of designated individuals per occupational level at designated enterprises across various sectors of the economy. The Minister of Employment and Labour, according to this law, is empowered by the amended Employment Equity Act to identify sectors or subsectors of the economy and to set numerical targets for them. However, the setting of the targets must be done after consulting with the relevant sectors.

On the face of it, the Government’s information shared here today suggests that it is complying with the requests and observations of the Committee of Experts to improve the representation of previously excluded individuals. However, the numerical targets have been set arbitrarily and with no reference to the realities of the sectors concerned, including any data about the availability of suitably qualified designated individuals in the various sectors. Despite repeated requests to produce the data that informed the regulations and numerical targets, the Government has refused or failed to produce the records. This also prevented any meaningful consultation between the affected businesses or employers and the Government, which could have identified the problems with the targets and explored solutions there too.

To compound the issue, the Government also refused or failed without offering any valid reasons to disaggregate sectors into appropriate subsectors, which would have allowed the setting of clearer and more reasonable targets. Instead, the accumulation of sectors means that the same targets have been set for sectors and subsectors that are very different in their makeup and skills requirements. As an example, banks, life insurers, non-life insurers, asset managers and investment firms all have the same targets because they have been grouped under the financial sector despite the significant differences in their skills requirements. This means some firms will have unreasonably high or unachievable targets at some occupational levels.

Regrettably, the Government’s refusal or failure to consult meaningfully or at all with the affected business sectors has led to BUSA initiating litigation against the Government over its employment equity regulations and sector targets. In our view, this is really unfortunate and will delay any progress the Government seeks to make to improve the representation of designated individuals in the labour market.

To make matters worse, the regulations provide for hefty penalties where a designated employer fails to meet the targets. The Government’s attitude is that employers can escape the penalties if they are able to demonstrate that they had a justifiable reason for not meeting these targets, such as the unavailability of skilled individuals to hire. While this may appear reasonable, the approach places a burden on employers who must justify their failure to meet targets when the Government could easily have prevented that scenario by consulting with the relevant sector employers to set realistic targets.

To reiterate, as I conclude, the employer organization that I represent fully supports the policy to transform the labour market and improve the representation of previously disadvantaged individuals. I submit that the Government’s approach with its sector targets is unlikely to improve the representation of designated individuals in the labour market. Rather, it is going to lead to resentment, opposition and litigation. BUSA and its members remain willing and open to engage in meaningful consultations with the Government to set appropriate and reasonable employment targets for designated individuals or groups.

Government member, Malawi, speaking on behalf of the Southern African Development Community (SADC) – At the outset, SADC Member States wish to reaffirm the great value they attach to the ILO supervisory system and in particular, the high regard they have for the discussions of this Committee as an important mechanism for supporting continuous improvement in the application of international labour standards. We have therefore followed with keen interest the discussion concerning the application of the Republic of South Africa of the Convention. The SADC especially welcomes the openness with which the Government of South Africa has approached this discussion, including its willingness to provide detailed information on inequalities, measures being implemented and areas where further progress remains necessary. The SADC recalls that South Africa’s labour market comes from a background rooted in a system that was designed to institutionalize discrimination and exclusion, including in economic and social life.

The struggle against this system was not a national effort but one supported by countries across the African continent and by the broader international community. Accordingly, SADC Member States played an active role in supporting the liberation of South Africa and the establishment of a democratic society founded on equality and human dignity. While progress has been achieved to democratize South Africa, the persistence of inequality in employment, occupational advancement and representation demonstrates that the effects of such a system cannot be fully reversed within a single generation.

The persistent disparities in employment outcomes and representation of certain groups at senior levels of management, barriers affecting women and persons with disabilities and broader labour market inequalities identified in the discussion before this Committee must therefore be understood within this broader historical and developmental context. SADC notes that the Convention is intended not only to prohibit discrimination but also to promote equality of opportunity and treatment in employment and occupation. The Convention thus recognizes that special measures designed to meet the particular requirements of persons or groups requiring protection or assistance shall not be deemed to be discrimination.

In this regard, measures aimed at addressing persistent inequalities and advancing equality may play an important role in giving practical effect to the proposal and objectives of the Convention. It is within this context that Member States have taken note of the legislative policy and institutional measures being implemented by South Africa to advance equitable representation and address long-standing structural disparities in the labour markets. We understand these efforts as part of a broader commitment to achieving equality and ensuring that economic opportunities are accessible to all segments of society in a manner that is consistent with the Convention and the decent work agenda.

We particularly appreciate the constructive manner in which the Government of South Africa has participated in this process. The willingness to engage openly with the issues raised and to outline measures being undertaken to address gaps reflects a spirit of cooperation that is fully consistent with the values of the ILO and the objectives of its supervisory system. We humbly submit that this demonstration of good faith, transparency and commitment to continuous improvement should be noted by the Committee in its consideration of this case and in the formulation of its conclusion. Indeed, SADC Member States have over the years institutionalized the dialogue and the experience-sharing through regional tripartite structures. Please be assured that through these mechanisms our Member States will continue to support one another in the implementation of international labour standards including outcomes emanating from this august body.

Interpretation from Russian: Government member, Russian Federation – Russia has carefully studied comments from the Government of the Republic of South Africa with reference to the implementation of the Convention. We have also carefully studied the corresponding section in the report from the Committee of Experts on the application of that Convention. We note that South Africa’s well-known historical inheritance continues to make itself felt in a serious imbalance in the structure of the country’s labour market. Overcoming this is a long and complicated process and clearly we should not expect either easy solutions or quick results. Against that backdrop, the steps undertaken by the Government to counter discrimination are worthy of the highest appreciation.

In particular, we note the innovative concept of the five-year sector-specific employment equity targets. This is something that is foreseen within the Employment Equity Amendment Act adopted in 2022. We are sure that this Act will enable the Government to make progress in the context of combating discrimination on the labour market. We also note that the aforementioned Act entered into force only on 1 January 2025 and the first report on its implementation will be issued at the end of the assessment cycle, 2026–27. That being so, giving an evaluation of the level of success of the above-mentioned innovative steps would be premature.

Nonetheless, it is clear that the legislative framework for the reform process has got off the ground. We cannot fail to note other steps also taken by the Government in accordance with the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace. Discrimination in the workplace is equated to harassment. This document has entered into force and is already being applied in judicial practice. In principle, we would like to draw attention to the pragmatic and constructive approach that has been taken by the Government of South Africa.

The Government acknowledges that there are difficulties and takes consequent legislative and practical measures to overcome them, focused on resolving this difficult situation in the labour market in the country. In light of the above, we call upon the ILO to continue constructive interaction with members of South Africa’s tripartite partnership, including providing technical support to all interested parties.

Worker member, Kingdom of the Netherlands – South Africa’s transition from apartheid to democracy in the late 1980s and early 1990s led to significant constitutional and legislative reforms aimed at addressing historical inequalities. A key milestone was the adoption of the 1996 Constitution, which promotes equality and authorizes affirmative action measures. This constitutional mandate led to the enactment of the Employment Equity Act, one of the most important transformation laws introduced by the democratic Government. The Employment Equity Act seeks to redress the exclusion and discrimination experienced by the majority of South Africans under apartheid.

To support implementation, the Government, workers and employers have invested in skills development, training and human resource development initiatives. Thirty years later, however, transformation remains incomplete. According to employment equity data from the 2022 reporting cycle, disproportionate representation continues across occupational levels, particularly in top and senior management positions. The labour market remains heavily influenced by historical patterns of race and gender inequality, with ownership and control of many businesses still concentrated among white males.

The Government continues to take important steps to promote employment equity and combat discrimination. These include maintaining the Commission for Employment Equity, conducting thousands of employment equity inspections and introducing employment equity amendment legislation with sector specific targets, as we heard from the Government representative. These efforts deserve a lot of recognition. However, the pace of transformation remains slow and equitable representation across all occupational levels is still far from achieved. Furthermore, concerns have been raised regarding the lack of detailed information on the implementation, challenges and outcomes of the National Action Plan.

To conclude, to accelerate meaningful transformation, the Government, employers, trade unions and civil society must continue to work together to strengthen accountability and implementation. Clear reporting on progress, measurable outcomes, effective skills development and stronger enforcement of employment equity obligations are essential. South Africa has established a strong legislative framework – the challenge now is to ensure that its goals are translated into tangible and real results.

Government member, United Republic of Tanzania – The United Republic of Tanzania aligns itself with the submission made by the Republic of South Africa in its efforts to implement both in law and in practice the provisions of the Convention, as ratified in 1977 by the Government. Additionally, we support the statement by SADC on this matter. We further appreciate the tireless efforts by the Committee, social partners and the ILO in general in ensuring that the provisions of the Convention are well implemented by all Member States in order to ensure both decent work and the protection of fundamental rights at work. The United Republic of Tanzania is very confident that the Government of South Africa will continue taking dedicated measures to implement the National Action Plan on racism and harassment, articles of its constitution and other relevant laws to recognize the legitimacy of special measures to address historical and the remaining disadvantages and to promote substantive equality as per the requirement of Convention.

Through the Employment Equity Compliance Certificate, as provided under section 53 of the Employment Equity Amendment Act of 2022 in which the Government has automated the certificate system to enhance integrity and reduce the fraud, we encourage the Government in its coming reporting cycle to confidently share with the Committee the updated information on the positive results of measures under the labour market to include women, persons with disabilities, young people and the results of specific actions taken by employers to provide skills training to workers. The United Republic of Tanzania recognizes the historical and structural challenges that continue to affect labour markets in many societies, particularly those emerging from institutionalized discrimination and inequality. In this regard, we appreciate South Africa’s transparent engagement with the supervisory mechanisms of the ILO and its demonstrated commitment to constitutionalism, social dialogue and the progressive realization of equality in employment and occupation. We note the legislative and policy measures undertaken including the Employment Equity Amendment Act and the introduction of sectoral employment equity targets as part of broader national efforts to address persistent disparities in the labour market.

The United Republic of Tanzania further acknowledges that the transformation of labour market inequalities is a gradual process that requires time, inclusive dialogue and a sustained institutional commitment. We therefore encourage a constructive and balanced approach within the Committee’s deliberations.

Worker member, United Kingdom of Great Britain and Northern Ireland – The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the most representative workers’ organization of the United States, supports this statement. In May 1993, South African President Nelson Mandela visited the United Kingdom to see the parents of Stephen Lawrence, a young man who had been murdered in a racially motivated attack two weeks before. The President’s visit sparked much needed reflection in the United Kingdom, resulting in the recommendations of the McPherson report of 1999. The report laid bare the country’s institutional racism and fundamentally changed the British approach to discrimination from simply outlawing discriminatory behaviour to actively promoting racial equality.

One outcome was the 2010 Equalities Act, the cornerstone of the United Kingdom’s compliance with the Convention, which allowed for positive action to reach out to under-represented groups of potential employees and to provide education and training to help overcome barriers to employment. However, where McPherson recommended strict recruitment targets in some sectors, such as the police, subsequent policy has favoured a voluntary approach. The result, 27 years after McPherson, is one of some improvement but persistent inequality. This is illustrated by a 2021 Guardian story which, while ostensibly celebrating a report showing a 100 per cent increase over four years in the number of black and minority ethnic workers in the most senior positions in 28 key areas of national importance including politics, the public sector, banking, the media and so forth, notes that this still meant that only 6 per cent were from ethnic minorities who otherwise made up 14 per cent of the workforce, and pointing out that numerically speaking, that 6 per cent could fit on a London bus.

In a similar vein, our Office of National Statistics reports that, while 10 per cent of all white workers are managers, directors or senior officers, only 5 per cent of all black workers are in such roles. Trades Union Congress research shows that black workers are disproportionately likely to face insecurity: one out of 13 black and minority ethnic workers is in insecure work compared with one in 20 white workers. The recent United Kingdom Government commitment to mandatory ethnicity pay gap reporting, with the goal of revealing structural inequalities in employment and promoting action to address them, is a welcome and vital step forward. But it will only have a lasting impact if met with serious company action plans driven by a real will to change. Mandatory pay gap reporting is a recognition that another layer of compulsion will be necessary if we are to address the United Kingdom’s persistent inequality and discrimination. And if that still moves the dial too slowly, another layer will be needed, and another and another.

How much more so in South Africa, where the Government is trying to undo the legacy of apartheid, namely structural and institutional racism of staggering intensity. The British experience shows that disparities in employment and advancement can be closed by real commitment – sometimes involving hard work and investment from employers – to remove the barriers faced by black workers and other under-represented groups. But it also shows that ever greater encouragement, including mandatory measures, will be required if we are ever to truly dismantle structural racism and inequality.

Government member, Namibia – Namibia thanks the Committee and acknowledges the Government of South Africa for its open and transparent engagement on the matter at hand. We underline that it is important for our discussions at this forum to remain firmly rooted within the mandate of this Committee which is to examine how Member States uphold and implement international labour standards that they have ratified. South Africa’s Employment Equity Act was promulgated to address the deep inequities inflicted by decades of apartheid rule where race, gender and social origin determined access to skilled work and leadership positions. These patterns and realities have not yet been overcome and cannot be expected to disappear overnight even with the best of efforts. As we speak, they are still present, reflected in the low representation of black South Africans, especially women and persons with disabilities, at senior levels in different sectors and industries. The measures introduced under the Act therefore respond directly to real, not imagined, historical imbalances in that society. They are fully consistent with Article 1(2) of the Convention which allows special measures to advance substantive equality.

Namibia, against the background of our own historical experiences, notes as per the information submitted by South Africa, the slow but steady pace of ongoing transformation in that sister country, such as the recent legislative reforms and the establishment of a digital compliance certificate system. We also note the concrete steps taken by South Africa to prevent and address violence and harassment in the world of work, including the Code of Good Practice on the Prevention and Elimination of Harassment. These practical interventions are already being applied by the courts, thereby providing real remedies for workers facing discrimination, bullying and gender-based violence. Namibia encourages the Committee to assess this case within its established mandate and to recognize the South African Government’s sustained efforts made in good faith as evidenced by the implementation of the recent reforms.

We support a constructive and balanced supervisory process focused on nothing other than the application of labour standards.

Worker member, Botswana – My country is a neighbour to South Africa; hence, we are very much alive to what is happening in South Africa, including its historical challenges. In their report, the Committee of Experts has observed the failure by the Government to provide information on the actions taken within the framework of the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance (2019–2024), the obstacles identified and the results achieved.

Failure to provide information for purposes of reporting cannot be condoned. However, fundamental to the issues of racism, racial discrimination, xenophobia and related intolerance in South Africa is a painful history of apartheid, dating back more than 300 years. South Africa attained its independence in 1994, and we are talking about a democracy that is almost 32 years with the scars of apartheid still new and in many instances, still bleeding.

It is evident in the Committee of Experts’ report that the white population group accounts for 62.9 per cent of top management positions despite representing 8 per cent of the economically active population, followed by Indians at 11.2 per cent, although representing 2.7 per cent of the economically active population and, to the contrary, the African group population representing 80 per cent of the economically active population occupies only 16.9 per cent of top management positions. These are not just numbers. They speak to a historical system that for decades has disadvantaged the African population which forms 80 per cent of the economically active population, and which is xenophobic and intolerant. These are the scars of apartheid. They are visible and bleeding.

At no point should an impression be made that the Government of South Africa tolerates or condones any action that is xenophobic, intolerant and racist in nature. The South African Government has indeed enacted laws that criminalize such actions and has gone public on different media platforms to condemn these criminal acts perpetuated by small groups around the country and in certain provinces. This is evident in the statement of the Ministry of International Relations and Cooperation of 8 May 2026 and in the Freedom Day address in April 2026 by His Excellency, the President of South Africa, Cyril Ramaphosa. The ILO Constitution preamble argues lasting peace requires social justice and highlights that poor working conditions, such as long hours and low wages, cause global unrest. It emphasizes that failure to adopt human labour standards threatens international stability and hinders progress in other nations demanding improvements to issues like worker protection and social security. This is the responsibility that all African nations must shoulder to improve the socioeconomic status of their people.

In conclusion, the South African Government acknowledges that there are these challenges in the country. What they need is support more than condemnation. This is a very sensitive matter, which is a direct result of its painful history. Finally, the Government is encouraged to continue engaging with social partners in trying to come up with lasting solutions to these issues.

Government member, Malawi – Malawi aligns itself with the statements made by the SADC, South Africa and all other SADC countries that have spoken before. Malawi commends the Government for the constructive engagement with this Committee. It has taken note of the information provided by South Africa regarding the case being discussed on the application of the Convention.

It further commends the efforts undertaken by the Government to promote equality of opportunity and treatment in employment and occupation including measures aimed at addressing historical disadvantages and improving representation in the labour market. Such efforts are consistent with the principles of the Convention and are aimed at achieving substantive equality and ensuring that all citizens, irrespective of colour or race, have access to decent work opportunities. Malawi also welcomes the open and transparent manner in which South Africa has engaged with this Committee and the demonstrated commitment to addressing challenges through dialogue, consultation and continuous improvements.

Malawi, therefore, encourages the continuation of constructive engagement involving the Government of South Africa and social partners to continuously improve the application of the principles of the Convention and to promote inclusive and equitable labour markets.

Worker member, Spain – South Africa has one of the world’s most progressive constitutional and legal frameworks for combating discrimination and promoting equality in employment. As demonstrated by the Committee of Experts’ report, however, the legacy of apartheid continues to have a profound impact on the labour market.

Despite making up just 8 per cent of the economically active population, white South Africans occupy almost 63 per cent of senior management positions, while Africans, who represent approximately 80 per cent of the economically active population, occupy less than 17 per cent of those positions. These disparities reflect decades of unequal access to education, productive assets, capital, corporate ownership, professional networks and economic opportunities.

The Workers recognize and support the South African Government’s efforts through the Employment Equity Act, the Commission for Employment Equity (CEE), labour inspections and the Employment Equity Amendment Act No. 4 of 2022, which establishes sectoral targets intended to accelerate the transformation in workplaces. That transformation is progressing slowly, however, and the ownership and control of broad sectors of the economy continue to be concentrated in a relatively small number of historically favoured companies.

This continues to limit opportunities for many black South Africans to gain access to quality jobs, leadership positions and significant economic participation.

The consequences of this slow transformation are increasingly visible among young South Africans, with growing frustration seen in a generation born after apartheid who hoped that democracy would gradually widen access to opportunities. When a significant proportion of young people remain excluded from employment, education and training, social cohesion is weakened. That frustration is growing and, on occasion, is directed at migrants and other vulnerable groups. The discussion must therefore go beyond normative compliance and the application of the law. It should also address funding for development and skills training.

South Africa requires sustained national and international support to accelerate its inclusive economic transformation. Development funding must support large-scale skills training programmes that give young people, women, persons with disabilities and other disadvantaged groups the skills required by modern labour markets. We therefore urge the Government, employers’ and workers’ organizations and development partners to work together through social dialogue to accelerate the transformation and ensure that the promise of equality made in the Convention becomes a reality for the entire South African people.

Government member, Mozambique – It is with deep respect that I address this Committee to comment on the case of South Africa. Mozambique thanks the Government of South Africa for its constructive engagement with the Committee and the transparency reflected in its report. We acknowledge South Africa’s continued effort to address long-standing inequalities in employment and occupation including through legislative reforms, employment equity measures and strengthened mechanisms to combat discrimination and harassment in the workplace. We note that the challenges identified must be viewed within South Africa’s specific historical context and recognize that achieving substantive equality requires sustained efforts over time. We further note that the recently introduced sectoral employment equity targets are intended as flexible measures to advance equitable representation and address historical disadvantage.

Mozambique welcomes South Africa’s commitment to dialogue with its social partners and its cooperation with the ILO supervisory system. We encourage the Government to continue these efforts and we reaffirm our support for a balanced and constructive consideration of this case in line with the principles and objectives of the Convention.

Interpretation from Arabic: Government member, Libya – The State of Libya wishes to express its appreciation to the delegation of the Republic of South Africa for the transparent and balanced presentation it has delivered regarding the implementation of the Convention. Libya has listened carefully to the data and reforms presented by South Africa. It notes the genuine commitment it has demonstrated in cooperating with the supervisory mechanisms of the Organization.

Libya considers that the approach adopted by South Africa represents a model for States that engage with their international obligations in good faith, responsibility and clarity. The Government has provided information on the remaining challenges in the labour market and has openly acknowledged the slow pace of transformation. It has presented an advanced legislative and institutional framework that reflects a genuine political will to address the effects of historical discrimination. Libya further affirms that the special measures adopted by South Africa, including flexible sectoral targets and affirmative action measures, clearly fall within what is permitted under Article 1(2) of the Convention, which recognizes the legitimacy of measures aimed at achieving substantive equality and addressing entrenched disparities. These measures do not constitute rigid quotas, nor do they undermine the principle of merit. Rather, they represent legitimate regulatory tools to achieve fair and balanced representation.

The State of Libya also notes the significant progress achieved by South Africa in strengthening compliance mechanisms, including the digital system for compliance certificates, and the legislative and institutional developments to combat harassment and discrimination, thus reflecting a genuine commitment to provide effective and enforceable remedies.

The State of Libya, fully aware of the sensitivity of these discussions, wishes to emphasize that the objective assessment of States’ efforts must be grounded in the text of the Conventions and the standards of the Organization, and that it should remain free from any external considerations unrelated to the mandate of the Committee. In this regard, Libya considers that the presentation delivered by South Africa reflects compliance and a constructive spirit worthy of recognition.

Accordingly, the State of Libya expresses its full support for the efforts of the Republic of South Africa and calls upon the Committee to consider the information and reforms presented by the Government within the framework of fairness, objectivity and the spirit of international cooperation upon which the ILO was founded.

Government member, Niger – I welcome the clear and transparent statement made by South Africa concerning the application of the Convention. Niger notes with appreciation of the information provided, particularly the detailed and disaggregated data, that reflects the exemplary methodical approach adopted by South Africa to combat discrimination and ensure equality in the labour market.

South Africa has provided specific information on the remaining challenges in the labour market and has even acknowledged the slow pace of the transformation to it. That transparency is, in itself, proof of South Africa’s sincere commitment. South Africa has clearly explained that the five-year sectoral targets are not fixed quotas, but flexible markers. Designated employers, that is, those who employ 50 employees or more, set their own annual targets in consultation with the trade unions and harmonize them with the sectoral targets.

Niger believes that the special measures adopted fall clearly within the scope of Article 1(2) of the Convention, which recognizes the legitimacy of measures intended to establish genuine equality and address deep-seated disparities. These measures do not constitute rigid quotas and do not violate the principle of merit; rather, they represent legitimate regulatory tools to bring about just and balanced representation. Furthermore, Niger welcomes the significant progress made by South Africa in strengthening compliance mechanisms, including the digital compliance certificate system, as well as legislative and institutional developments in combating harassment and discrimination, which illustrate genuine commitment to providing effective and enforceable remedies.

To conclude, we invite the members of this august Committee to take due consideration of South Africa’s efforts to implement a legislative and institutional framework in line with the Convention; its positive cooperation with the social partners and with the International Labour Office; its transparency and good faith through mid-term reports and its constructive engagement in these proceedings. South Africa should be encouraged in its efforts and supported through increased technical assistance in the fulfilment of its obligations.

Observer, Building and Woodworkers’ International (BWI) – BWI thanks the Committee for the opportunity to contribute to this discussion and the Government of South Africa for its report. It welcomes the constructive dialogue taking place regarding the implementation of the Convention. We wish to begin by recognizing the Government’s continued commitment to promoting equality, opportunity and treatment in employment and occupation. South Africa faces the unique challenge of addressing the profound and lasting effect of apartheid while continuing to build an inclusive labour market based on dignity, equality and social justice. The Worker members welcome the efforts made through the Employment Equity Act and recent amendment to strengthen its implementation, the work of the Commission for Employment Equity and the inspections conducted to monitor compliance.

These measures demonstrate a clear commitment to address historical inequalities and promote fair representation in the workplace. The Worker members reaffirm that affirmative action measures constitute a legitimate and important component to promote substantive equality. Consistent with Article 5 of the Convention, special measures designed to address the enduring effects of historical discrimination play a vital role in ensuring that equality of opportunity and treatment becomes a reality for all workers. At the same time, our focus today is not on the justification for these measures but their effective implementation. The key question before the Committee is how to ensure that legal and policy frameworks translate into tangible improvements in workers’ lives.

In this regard, we encourage the Government to continue strengthening enforcement mechanisms and to ensure that inspections are accompanied by practical support for employers and workers in implementing employment equity obligations. Effective implementation requires not only monitoring compliance but also identifying barriers, sharing good practices and promoting workplace transformation across sectors. The Worker members commend President Ramaphosa’s announcement in February 2026 that 10,000 additional permanent labour inspectors will be appointed to strengthen compliance with key labour legislation, including the Employment Equity Act. We look forward to seeing the impact of this significant investment in the years ahead. We further encourage the Government to continue implementing measures to combat racism, racial discrimination, xenophobia and related intolerance.

We would welcome additional information on the implementation of the National Action Plan to combat Racism, Racial Discrimination, Xenophobia and Related Intolerance, and the results achieved in promoting inclusive and discrimination-free workplaces. In conclusion, the Worker members acknowledge the significant efforts already undertaken by the Government and encourage continued action to strengthen implementation enforcement, monitoring and social dialogue. We remain confident that through sustained commitment and effective application of the Convention further progress can be made in promoting equality of opportunity and treatment for all workers in South Africa.

Government representative – On behalf of the Government and the people of South Africa, we express our profound gratitude to all the Member States and social partners that offered positive advisory comments in support of our case before the Committee. Your solidarity and principled stance did more than strengthen our legal arguments. They reaffirmed a shared commitment to fairness, justice and the integrity of international labour standards. Your constructive observations highlighted with invaluable clarity the importance of adherence to the rule of law and due process.

For your encouragement and for the trust you have placed in us, we are deeply thankful. We acknowledge that significant challenges remain in overcoming the deeply entrenched inequalities inherited from the past. We are in full agreement with the position of the Employers’ group that the elimination of labour market discrimination takes time. We shall continue, step by step, to seek equity in our labour market. We want to re-emphasize that our sectoral employment equity targets do not constitute rigid racial quotas nor do they require or force the appointment or promotion of unqualified persons. In fact, employers retain the power to consider qualifications, skills, experience, operational requirements and availability of suitably qualified candidates.

We must also emphatically point out that our approach is embedded in consultation with all labour market stakeholders, employers and employers’ organizations, employees and trade unions, academics, civil society and the public at large. This for us is key to all legislative and policymaking processes in South Africa. As such, the five-year sectoral targets are a product of extensive consultation processes with all relevant sectoral stakeholders, which began in 2018 and were published 2025. In fact, in the recent employment equity-related case on 22 May 2026, the Constitutional Court dismissed the consultation process challenge, ruling that there was sufficient consultation to determine sectoral targets.

We acknowledge active litigation on some elements of our employment equity targets. As such, we shall refrain from commenting on this as the matter is sub judice. It is with this in mind that we reiterate our call for the ILO to be vigilant in order to avoid the supervisory mechanism being weaponized by parties seeking to achieve an outcome through international processes for cases that remain under consideration within national legal systems. The ILO is going through difficult financial challenges. It is our opinion that this case was not necessary.

As we conclude, allow me to leave this Committee with three firm and clear messages. First, our commitment to international labour standards is unwavering. South Africa continues to embrace the full body of ILO Conventions, the Decent Work Agenda and the fundamental principles and rights at work. We engage with this Committee and the Committee of Experts in good faith and we honour our obligations not out of compulsion but because we believe deeply in the social justice mission of this Organization.

Second, where challenges exist, we address them through law, not retreat. Any gap between domestic law and international standards is met with transparent constitutionally mandated processes, parliamentary scrutiny, social dialogue, public scrutiny and judicial review. We do not shy away from constructive criticism. We ask only that our efforts be measured against the living reality of our constitutional democracy.

Finally, South Africa will never abandon the supremacy of its Constitution or the expansive institutional infrastructure for ensuring the rule of law and resolving disputes, nor its solidarity with the international labour rights community. We welcome continued dialogue, technical cooperation and the Committee’s guidance as we strive to give full effect to the standards we have voluntarily embraced.

Employer members – The Employer members acknowledge the efforts made by the Government of South Africa in meeting its obligation under the Convention. Notwithstanding these efforts, the information from the Government of South Africa appears to show that there still remain a disproportionate number of white South Africans in managerial positions. Therefore, we call on the Government of South Africa to provide the information requested by the Committee of Experts. In particular:

1. The results achieved in the transformation of the labour markets towards a more equitable representation of the designated groups.

2. The assessment of its affirmative action measures in particular in relation to the five-year sectoral numerical targets for designated Employers.

3. The actions taken within the framework of the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance, 2019–2024, the obstacles identified and the results achieved.

4. The impact of the implementation of section 53 of the Employment Equity Act, as amended, in relation to the employment equity compliance certificates.

With respect to the second point, the Employer members support the legitimate aim of transforming the labour market to promote the inclusion of disadvantaged people. However, certain measures such as the arbitrary setting of numerical sectoral targets are not appropriate. These sectoral targets should be fixed after having genuine and meaningful consultation with the most representative Employers concerned in order to be sure they are economically sustainable.

Worker members – The Worker members thank the South African Government for its efforts and the information provided to us today. We also thank it for the constructive and positive manner in which it has cooperated with our Committee, and we thank all the speakers for their contributions to this discussion.

We believe that today’s exchange has gone beyond a simple technical examination of legislation and the report. It has allowed us to address a more profound and fundamental question: namely, how countries leaving behind deep-rooted systems of discrimination imposed by the State can bring about true equality of opportunity and treatment in practice.

In the case of South Africa, this matter cannot be addressed without recalling the profound and long-lasting legacy of apartheid. For decades, discrimination was not incidental: it was institutionalized, codified and actively enforced by the State. Entire segments of the population were systematically excluded from meaningful participation in the economy and deprived of access to education, high-skilled occupations, senior positions and the ownership of productive resources. The labour market itself was structured along racial lines, ensuring that inequality was perpetuated down the generations.

This historic context is essential. It reminds us that the inequalities that we see today do not exist by chance, but are the direct and desired result of past public policy.

It is precisely in response to that reality that the Employment Equity Act and associated transformation measures were adopted. These measures were not designed to create new forms of discrimination. Their objective is to dismantle the structural barriers and lasting effects of a system that deliberately excluded the majority of workers. They seek to re-establish balance and to create conditions in which equality can become a lived reality.

In terms of the Convention, the relevant question is therefore not whether such measures exist, but whether they are pursuing a legitimate objective, whether they aim to overcome an ingrained disadvantage and whether they contribute to bringing about genuine equality in practice. In that regard, the Worker members recall that the Convention explicitly recognizes that special measures can be necessary to address structural inequalities. What matters is whether those measures are effective.

And that brings us to the central question before our Committee: how do we measure success? Success cannot be reduced to the existence of policies, or to mere numerical targets. The true measure of success lies in the results. That depends on whether historically excluded workers benefit from real and meaningful access to decent work. It depends on their ability to access training, develop skills and progress towards senior and leadership positions. It depends on the ability of women, young people and other disadvantaged groups to participate in the labour market in truly equal conditions. In other words, the question is whether the structural inequalities inherited from apartheid have been effectively dismantled and whether opportunities are being extended in a tangible and lasting way.

The information submitted to our Committee indicates that, despite the progress made, substantial disparities remain. Economic inequalities continue to reflect historic patterns of exclusion. Significant gaps persist in access to quality employment, career progression and representation at the highest levels of seniority.

This reality highlights the persistent relevance of – and even the need for – measures intended to promote equity in employment and real equality. It also emphasizes the importance of regular evidence-based evaluation to ensure that these measures produce concrete results and address the remaining obstacles.

In the light of these considerations, the Worker members congratulate the South African Government on its sustained efforts and encourage it to continue to strengthen its efforts in promoting equality of opportunity and treatment in employment and occupation for all the targeted groups.

Chairperson – We conclude the discussion on this case. I thank the Government representative of South Africa and all the speakers who took part in the discussion for their participation.

Conclusions of the Committee

The Committee took note of the written and oral information provided by the Government and the discussion that followed.

The Committee noted the historical context that has shaped deep and persistent inequalities in the labour market in South Africa and the efforts made by the Government to adopt a comprehensive legislative and institutional framework to promote equality in employment and occupation, despite which persistent disparities remain in practice in the labour market.

Taking into account the discussion, the Committee invited the Government, in consultation with the most representative employers and workers organizations, to take measures to:

• continue strengthening efforts to promote equality of opportunity and treatment in employment and occupation for all designated groups, with particular attention to underrepresented groups, including by providing information on:
• the results achieved in the transformation of the labour market towards a more equitable representation of the designated groups;
• the actions taken within the framework of the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance, 2019–24, the obstacles identified and the results achieved; and
• the impact of the implementation of section 53 of the Employment Equity Act as amended (measures put in place to evaluate the assessment criteria for the issuance of employment equity compliance certificates and the number of certificates denied based on this assessment);
• provide updated and disaggregated statistical information on progress made in achieving equity of opportunity and treatment in employment and occupation; and
• ensure meaningful consultation with relevant sectors when setting the 5-year sectoral numerical employment equity targets in line with the Employment Equity Amendment Act No. 4 of 2022.

The Committee called on the Government, in consultation with the most representative workers’ and employers’ organizations, to submit a detailed report to the Committee of Experts by 1 September 2026.

Government representative– The Government of the Republic of South Africa thanks the Committee for its careful consideration of our submissions and for the constructive discussion that followed. We welcome the Committee’s Conclusions issued today, 10 June 2026, which acknowledge both the historical context of deep and persistent inequalities in our labour market and the comprehensive legislative and institutional framework that South Africa has adopted to promote equality in employment and occupation. We further note the Committee’s recognition that, despite these efforts, disparities persist in practice. These are challenges we confront daily, and they are precisely why we have strengthened our legislative framework through the Employment Equity Amendment Act, 2022, and its sectoral targets.

The Government accepts the invitations and calls made by the Committee and wishes to respond as follows.

The Government confirms its commitment to providing this information in full to the Committee of Experts by the requested deadline of 1 September 2026. In particular, we note the Committee’s interest in the implementation of section 53 of the Employment Equity Act. We will provide detailed data on the measures in place to evaluate the assessment criteria for issuing employment equity compliance certificates, as well as the number of certificates denied on this basis. We will also ensure that our report includes updated and disaggregated statistical information on progress towards equity of opportunity and treatment.

Secondly, our Government takes this invitation seriously and, consequently, we confirm that the process of setting sectoral targets has been, and continues to be, informed by consultation. However, we acknowledge that consultation must be ongoing, iterative and genuinely responsive to sectoral realities. We undertake to strengthen and deepen these consultative processes before the next round of target-setting, ensuring that the most representative employers’ and workers’ organizations at the sectoral level are actively engaged.

Thirdly, as you requested us to submit the report by 1 September 2026, we will ensure that the deadline is met and that we prepare it in full in consultation with our social partners and in line with our established practices.

In conclusion, the conclusions of this Committee rightly focus on the path ahead. We welcome that focus. The Government’s commitment to the objectives of the Convention is unwavering. We will continue to pursue the realization of substantive equality in employment and occupation – not only because it is our international obligation, but also because it is our constitutional and moral imperative as a democratic South Africa.

We thank the Committee once again for its engagement and for the opportunity to respond.

Direct Request (CEACR) - adopted 2025, published 114th ILC session (2026)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on equality, the Committee considers it appropriate to examine the Conventions Nos 100 (equal remuneration) and 111 (discrimination in employment and occupation) together.

The Committee notes the observations of Solidarity Trade Union received on 30 August 2024 and 4 June 2025 alleging non-application of the terms of the settlement agreement signed with the Government following the successful conciliation processes of Article 24 of ILO Constitution. The Committee requests the Government to communicate its comments in this regard.

Convention No. 111 – National policy to promote equality of opportunity and treatment in respect of employment and occupation

Article 2. National policy for equality of opportunity and treatment. Scope of application. The Committee observes that the Government states, in its report, that section 4(3) of the Employment Equity Act (EEA) explicitly provides that this Act is not applicable to the members of the National Defence Force, National Intelligence Agency, and South African Secret Service, or the South African National Academy of Intelligence or to the Directors and staff of COMSEC (Electronic Communications Security (Pty) Ltd). The Government, however, indicates that these categories of persons are protected against unfair discrimination on any one, or any combination, of the prohibited grounds listed under section 9 of the Constitution of the Republic of South Africa in the Bill of Rights. This equality clause protects all persons against direct or indirect unfair discrimination, irrespective of whether they work in the National Defence Force. The Committee notes the publication submitted by the Government with respect to a discrimination case in the South African National Defence Force. Nonetheless,the Committee requests the Government to indicate how workers excluded from the EEA are protected in practice against discrimination concerning all stages of the employment process, including recruitment, based on any of the grounds enumerated in Article 1(1)(a) of the Convention and the additional grounds set forth in the Constitution.

Employment equity plans. The Committee notes that although the Employment Equity (EE) Amendment Act No. 4 of 2022 was assented to in April 2023, it only came into force on 1 January 2025. The Government must still finalize processes for setting sector-specific targets and aligning workplace equity plans accordingly. The United Nations Committee on the Elimination of Racial Discrimination (CERD) expressed concern that the EEA now applies only to employers with more than 50 employees, excluding smaller employers from key obligations such as affirmative action and equity plans. The CERD also highlighted ongoing workplace racial discrimination and high unemployment among black South Africans – especially youth – and the vulnerability of black and migrant workers in the informal economy (CERD/C/ZAF/CO/9-11, 27 December 2023, para. 20). The Committee therefore asks the Government to: (i) provide examples of non-compliance with employment equity obligations and related consequences; and (ii) explain how it monitors compliance with Chapter III of the EEA for employers with fewer than 50 employees.

Equality of opportunity and treatment irrespective of race or colour. The Committee notes that the 23rd Commission for Employment Equity (CEE) Annual Report shows South Africa’s labour market remains racially and gender-segregated, with slow progress in achieving equitable representation. Black employees are still concentrated in lower-level positions, while White employees dominate decision-making roles, and persons with disabilities remain under-represented. The CERD also expressed concern about the lack of data on the impact of affirmative measures, including for indigenous peoples. The Committee therefore requests the Government to continue reporting on affirmative action measures and their effectiveness, and to provide statistics on the participation of Black people, women, persons with disabilities, and indigenous peoples in vocational training and employment across both public and private sectors.

Indigenous peoples. The Committee notes that the Government does not collect separate statistics on indigenous groups such as the Khoi and San, as they were historically classified under the broader “Black” category during apartheid. However, these groups can address unfair discrimination through the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) and the EEA. The CERD expressed concern over the absence of detailed data on indigenous peoples, their lack of recognition as a distinct group for data purposes, and insufficient information on efforts to combat their discrimination and marginalization (CERD/C/ZAF/CO/9-11, 27 December 2023, paras 4 and 30). The Committee therefore asks the Government to: (i) outline specific measures promoting equality of opportunity and treatment for indigenous peoples in employment; and (ii) report any employment discrimination cases involving them, including sanctions and remedies applied.

HIV status. With regard to the Committee’s previous comment on the measures taken in order to prevent and address discrimination in employment and occupation and to support employers in addressing challenges in the workplaces regarding HIV/AIDS, Tuberculosis (TB) and Sexually Transmitted Infections (STIs), the Government specifies that the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court continue to address discrimination cases based on HIV status, with nine such cases recently referred. The Government highlights that the South African National AIDS Council (SANAC) developed the 2023–28 National Strategic Plan (NSP) for HIV, TB, and STIs, approved in March 2023, following consultations and monitoring of prior targets. However, the Committee observes that the Government has not provided details on specific workplace measures to combat HIV-related discrimination. The Committee therefore requests information on concrete actions taken under the NSP or other initiatives to prevent discrimination based on actual or perceived HIV status in employment, and on the impact of these measures in practice.

Persons with disabilities. The Committee notes that under section 15(2)(c) of the EEA, employers must provide reasonable accommodation for persons with disabilities and include such measures in their Employment Equity Plans. Despite this, 10.6 per cent of employers reported that they face barriers to accommodation, yet persons with disabilities make up just 1 per cent of the workforce, showing limited progress in affirmative action. The Government reports that the CEE continuously advocates and encourages employers to adopt and implement the existing policy tools, such as its Technical Assistance Guidelines on the employment of Persons with Disabilities, which include reasonable accommodation, education and prevention programmes, and by developing a Code of Good Practice. The Committee welcomes the ongoing efforts by the CEE to promote existing guidelines and case law examples. The Committee requests the Government to continue reporting on affirmative action measures for persons with disabilities and their practical impact, and statistics on the participation of such persons in vocational training and recruitment in both public and private sectors.

Equality between men and women. The Committee notes that the Women Empowerment and Gender Equality Bill has not progressed in Parliament. While vocational training and skills development for women are covered under the National Skills Development Plan (NSDP) 2030 and the Commission for Gender Equality (CGE) has conducted Transformation Hearings, women still face barriers to senior and top management positions. The 23rd CEE Annual Report shows some improvement at lower and middle levels but limited gains at higher levels. The Committee requests the Government to provide updates on the Bill, measures taken to reduce gender occupational segregation, outcomes of these measures, and women’s participation initiatives under the National Skills Development Plan (2030) and CGE programmes.

Horizontal and vertical occupational segregation. The Committee notes the statistical data provided by the Government pursuant to the 23rd CEE Annual Report, which outlines that women account for 26.5 per cent at the top management level, 37.2 per cent at the senior management level, 48.2 per cent at the professionally qualified level, 49.4 per cent at the skilled technical level, 44.8 per cent at the semi-skilled level and 43.5 per cent at the unskilled level, taking into account that the Economically Active Population (EAP) statistic for women is 45.5 per cent. While noting this information, the Committee, however, observes that the Government does not list the concrete measures taken to address horizontal and vertical occupational gender segregation in employment and occupation. The Committee requests the Government: (i) to provide detailed information on the specific measures taken or envisaged, such as policy and practice adaptations, to combat occupational segregation between men and women and the results obtained; and (ii) to continue providing updated statistics on the distribution of women and men in the public and private sectors, and on the gender pay gap in the different occupational positions.

Article 3. Access to vocational training. The Committee notes the Government’s references to the 23rd CEE Annual Report and the National Skills Fund Annual Report on the National Skills Development Plan (2030) but observes that it has not fully responded to earlier requests. The Committee thus reiterates its request for information on: (i) the impact of measures under the Plan on labour market inclusion for Black people, women, persons with disabilities, and young people; and (ii) specific actions taken by employers to provide skills training to workers.

Article 5. Affirmative action. The Government reports that the CCMA mediated a dispute with the trade union Solidarity, which claimed that race-based policies and legislation went beyond permissible affirmative action under the Convention and unfairly favoured certain racial groups. The Committee notes Solidarity’s concerns that the terms of the settlement agreement with the Government have not been fully applied, and requests the Government to communicate its comment in this regard.

Convention No. 100 – Principle of equal remuneration for men and women for work of equal value

Articles 1 and 2. Gender pay gap. The Government reports that the National Minimum Wage Commission (NMWC) is responsible for analysing employer-submitted income data to address gender pay gaps, but poor-quality data has hindered analysis despite revisions to the data collection form. Therefore, the Commission has not been able to analyse the data submitted by employers and is pursuing various strategies to overcome this challenge, including refining the data collection instrument. The Committee observes that the 23rd CEE Annual Report gives an account of the Stakeholder Engagement on Equal Pay / Remuneration for Work of Equal Value hosted on 23 November 2022 by the CEE and the CCMA, which identified measures to address the challenges on equal pay. The report also discloses information regarding cases referred to the CCMA alleging unfair discrimination due to pay differentials. The Committee requests: (i) information on progress in refining the data collection process; (ii) sex-disaggregated remuneration statistics in public and private sectors and analysis of income differentials; and (iii) information on concrete measures taken to reduce the gender pay gap.

Scope of comparison. The Government explains that, under the EEA and related regulations, equal pay for work of equal value can only be assessed between employees of the same employer, and that there are currently no plans in the National Economic Development and Labour Council (NEDLAC) Social Partner negotiations or in Parliament to extend these provisions beyond the enterprise level. The Committee requests information on: (i) efforts to raise awareness about the scope of equal pay provisions among workers, employers, and authorities; and (ii) any cases handled by the CCMA, Labour Court, or other authorities where comparisons between employees of different employers were considered.

Article 2(2)(b). Minimum wages. The Committee notes the information provided by the Government that, in South Africa, there is one national minimum wage that applies to all economic sectors for both men and women (e.g. domestic or agricultural workers), but certain sectors or types of workers have specific rates. The rates are not gender-biased unless the rates in those particular sectors are more favourable than the national minimum wage. Nonetheless, the Committee observes that the minimum hourly wage for public workers in South Africa, which took effect on 1 March 2025, is lower than the national minimum hourly wage that applies to most other workers. The Committee takes note of this information and requests the Government to indicate the impact of the national minimum wage rate on the gender wage gap and to provide statistical data in this regard.

Article 2(2)(c). Collective agreements. The Government notes that while collective agreements do not specifically address equal pay for work of equal value, all employers must comply with existing laws, including the EE Amendment Act No. 4 of 2022, regulations, Code of Good Practice, and national minimum wage. The Committee emphasizes the role of social partners in promoting gender pay equality and requests information on actions taken with employers’ and workers’ organizations to implement equal remuneration, and the outcomes of these initiatives. The Committee asks the Government to provide information on any actions undertaken to promote the implementation of the principle of equal remuneration for men and women for work of equal value, with the cooperation of the employers’ and workers’ organizations.

Conventions Nos 100 and 111 – Application in practice

Awareness-raising. Convention No. 111. The Committee notes that the Government, through the Department of Employment and Labour, CEE and CCMA, conducts national awareness and capacity-building activities on the EEA, its regulations, and Codes of Good Practice, including workshops and roadshows for workers, employers, trade unions, and other stakeholders. Regarding sexual harassment, the Government runs campaigns to educate stakeholders on the Harassment Code, used by the CCMA and Labour Court, with 143 harassment cases referred to the CCMA in 2023–24. The Committee asks the Government to report on awareness-raising and training initiatives for workers, employers, enforcement officials, and other relevant authorities to prevent and address discrimination in employment and occupation on all the Convention’s prohibited grounds, and to communicate data on complaints, penalties, and compensation awarded.

Enforcement. Convention No. 100. The Committee notes that under the EEA, employees can raise grievances on equal pay disputes at the workplace, and unresolved cases may be referred to the CCMA or Labour Court. The Government reports challenges in employees accessing evidence, selecting the correct discrimination grounds, and identifying comparators in equal pay cases. To address this, the CCMA and Department of Employment and Labour conduct training and education initiatives for trade unions and employees. The Committee requests detailed information on these initiatives and their implementation.

Convention No. 111. The Government states that, before the 2013 amendments, section 10 of the EEA on dispute resolution only empowered the CCMA to conciliate on unfair discrimination cases. Despite this provision ensuring a free service, specifically accessible to vulnerable groups, including women and people from rural areas, these groups avoided taking the cases further to the Labour Court because they found the process to be inaccessible and unaffordable. The Government specifies that section 10 of the EEA was therefore amended in 2013 to address this concern by empowering the CCMA to not only conciliate the unfair discrimination cases, but also to arbitrate and issue awards for all cases of vulnerable groups earning below the Earnings Threshold as determined by the Minister of Employment and Labour as per section 6(3) of the Basic Conditions for Employment Act (BCEA). The Government further states that since the 2013 amendments to the EEA, the CCMA has been empowered to conciliate and arbitrate on all sexual harassment cases of all employees irrespective of their positions, earnings and status in the labour market, therefore providing equal access to social justice for women, who are among the most vulnerable groups. The Government has submitted a list of unfair discrimination case referrals to the CCMA covering the 2023–24 period, including racial harassment and equal pay cases. The Committee asks the Government to continue to provide information on the number of cases of discrimination in employment and occupation dealt with by the competent authorities, while specifying the grounds of discrimination alleged, the sanctions imposed, and the remedies granted.

Observation (CEACR) - adopted 2025, published 114th ILC session (2026)

Articles 1, 2 and 5 of the Convention. Discrimination based on race, colour and national extraction. Affirmative Action. In its report, the Government refers to the latest employment equity (EE) data from the 2022 EE reporting cycle, which shows that the White population group accounts for 62.9 per cent of top management positions, despite representing only 8 per cent of the Economically Active Population (EAP). The Indian population group represents 11.2 per cent at this level, with an EAP of 2.7 per cent. In contrast, the African population group, which constitutes 80 per cent of the EAP, holds only 16.9 per cent of top management positions, while the Coloured population group, with an EAP of 9.3 per cent, accounts for just 6.1 per cent at this level. This pattern of disproportionate representation persists across other occupational levels, particularly with respect to the White population group, which constitutes 50.1 per cent of senior management, 30 per cent of professionally qualified and middle management, and 16.2 per cent of skilled technical and junior management positions.

The Government observes that despite all the continuous interventions to promote the implementation of affirmative action and non-discrimination in employment policies and practices, the labour market continues to be racialized and gendered, particularly at top and senior management levels of the workforce, due to the fact that the ownership of most businesses (known as designated employers) in South Africa still remains White and male-dominated. The Government indicates that with respect to the assessment of implementation of affirmative action in the labour market, the labour inspectors have conducted 4,725 EE inspections, which include EE procedural inspections and Director-General of Labour and Employment Reviews in the 2022–23 period. However, the pace of transformation in the labour market still remains slow, and at this rate it will take many years to reach equitable representation in the labour market at all occupational levels. The Commission for Employment Equity (CEE) remains committed towards facilitating regulatory compliance for the elimination of unfair discrimination and implementation of affirmative action measures to increase and manage the fair representation of designated groups at all occupation levels, managing diversity and identifying barriers to fair employment. The Government refers to the intervention put forward by the CEE to the Minister to strengthen compliance through the introduction of the EE Amendment Bill to, among other things, set 5-year sector targets as building blocks towards achieving a more representative workforce that reasonably reflects the demographics of the country.

With respect to eliminating unfair discrimination in employment, the Government indicates that racial discrimination, xenophobia and related intolerance are grounds covered under unfair discrimination pursuant to section 6(1) of the Employment Equity Act (EEA). It further states that in accordance with section 9 of the EEA, an applicant for an employment is deemed to be an employee and, therefore, any employee or job applicant that alleges unfair discrimination based on ethnicity or social origin may refer their case to the Commission for Conciliation, Mediation and Arbitration (CCMA) or the labour courts, pursuant to section 10 of the EEA. While noting this information, the Committee, however, observes that the Government has not provided information on the actions taken within the framework of the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance, 2019–24, the obstacles identified and the results achieved.

In relation to the issuance of the Certificate of Compliance under section 53 of the EEA, the Government indicates that the commencement date of this section, amended by the EE Amendment Act No. 4 of 2022, had not been promulgated yet. The Committee notes that, since the submission of the Government’s report, this Act has entered into force, on 1 January 2025.

In view of the above, the Committee asks the Government to continue to strengthen its efforts in promoting equality of opportunity and treatment in employment and occupation of all the designated groups and to provide information on: (i) the results achieved in the transformation of the labour market towards a more equitable representation of the designated groups; and (ii) the assessment of its affirmative action measures (in particular of the 5-year sectoral numerical targets for designated employers introduced in the EE Amendment Act No. 4 of 2022), with a view to determining whether they remain effective and are in line with the principle of non-discrimination.

The Committee reiterates its request to the Government to specify (i) the actions taken within the framework of the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance, 2019–24, the obstacles identified and the results achieved; and (ii) the impact of the implementation of section 53 of the EEA as amended (measures put in place to evaluate the assessment criteria for the issuance of employment equity compliance certificates and the number of certificates denied based on this assessment).

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations made by the social partners within the National Economic Development and Labour Council (NEDLAC) and communicated with the Government’s report.

The Committee also notes that a representation alleging non-observance of the Convention by South Africa, made under article 24 of the ILO Constitution, was filed in October 2021 by the trade union “Solidarity” denouncing workplace discrimination because of the overtly raced based policies and legislation adopted by the State which, in its opinion, goes beyond the “protected measures” or affirmative action measures admissible under the Convention. The Governing Body of the ILO accepted the receivability of the representation at its 344th Session (March 2022). The parties having decided to avail themselves to the voluntary conciliation procedure, the examination of the representation by the tripartite committee appointed by the Governing Body is suspended until April 2023.

Articles 2 and 3 of the Convention. Practical measures.The Committee reiterates its request for information on the measures taken to raise awareness and strengthen capacity regarding the employment equity legislation, among workers and employers and their organizations, as well as the enforcement authorities.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. The Committee notes the Government’s indication that annual publicity campaigns (in the form of employment equity roadshows) are conducted nationally with employers, workers, trade unions and employers’ organizations, academics and civil society in order to raise awareness and educate on the utilization of the Code of Good Practice. The Government adds that a new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace has been developed (it took effect on 18 March 2022) with a view to align its provisions on the ILO Violence and Harassment Convention, 2019 (No. 190) ratified in November 2021. In this regard, the Committee notes that the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW), in its concluding observations, found regrettable the lack of information on the number and outcome of complaints of sexual harassment in the workplace in both the public and private sectors (CEDAW/C/ZAF/CO/5, 23 November 2021, paragraph 47). The Committee also notes that, in its 22nd Annual Report, the Commission for Employment Equity (CEE), found that there was a tendency by some arbitrators and Labour Courts judges “to pay lip service to the Code [of Good Practice on the Handling of Sexual Harassment Cases] and to apply the wrong standard when dealing with evidence”. The Committee asks the Government to provide information on:

• (i) the measures taken to:
• (i) promote the new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (and on its use by employers);
• (ii) increase public awareness regarding sexual harassment and the procedures and mechanisms available for an aggrieved party to seek redress; and
• (iii) increase the proper use of the above-mentioned Code of Good Practice by arbitrators and Labour Courts; and
• (iv) the number of complaints concerning sexual harassment lodged, penalties imposed and compensation awarded.

Article 1(1)(b). HIV status. The Committee notes the Government’s indication that it revised its Code of Good Practice on HIV and AIDS and its Technical Assistance Guidelines on HIV and AIDS and the World of Work in order to align them with the ILO’s HIV and AIDS Recommendation, 2010 (No. 200) and publicized them through employment equity workshops conducted nationally. The Government adds that a new National Strategic Plan on HIV, Tuberculosis (TB) and Sexually Transmitted Infections (STIs) was adopted for the period 2017-2022. The Committee notes, from the statistical data provided by the Government based on employment equity reports submitted by employers for 2019, that approximately 20 per cent of employers report challenges or obstacles linked to HIV and AIDS education and prevention programmes. The Committee asks the Government to provide information on the measures adopted, in the framework of the new National Strategic Plan on HIV, TB and STIs 2017-2022, to prevent and address discrimination in employment and occupation, and to support employers in addressing challenges identified.

Article 2. National equality policy. Scope of application. With regard to the Committee’s previous comment, the Government reiterates that members of the National Defence Force, National Intelligence Agency and South African Secret Service are protected by the Constitution and that their labour issues can be negotiated within the Military Bargaining Council (MBC). The Committee notes the Government’s statement that “Chapter II of the EEA prohibits unfair discrimination against all employees of all employers irrespective of whether they are part of the military force”. It notes, however, that Section 4(3) of the EEA provides that “This Act does not apply to members of the National Defence Force, the National Intelligence Agency, or the South African Secret Service”, specifying, in a footnote, that these persons are not defined as “employees” under the Labour Relations Act but can bring unfair discrimination matters before the Constitutional Court or lodge complaints with the Human Rights Commission. The Committee asks the Government to:

• (i)clarify how Chapter II of the EEA is applicable to members of the National Defence Force, National Intelligence Agency and South African Secret Service; and
• (ii)provide examples of discrimination cases brought by these personnel to the relevant judicial bodies.

Equality between men and women. The Committee notes with regret the Government’s indication, in reply to its previous comment, that the Women Empowerment and Gender Equality Bill has not yet been tabled in Parliament and that there are no developments to report in this regard. The Committee therefore asks the Government to provide information on any developments regarding the Women Empowerment and Gender Equality Bill. It asks the Government, once again, to identify the specific vocational training and proactive measures adopted, including by the Commission on Gender Equality, to address gender occupational segregation and to increase effectively 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.

Article 3(e). Access to vocational training. The Committee notes the Government’s indication that, due to the downturn in economic growth, several targets of the National Skills Development Strategy III (2011-13) were not achieved and remain in force. A new National Skills Development Plan (2030) was published on 6 February 2019. The Committee notes that this plan “supports the transformational and redress imperatives in South Africa through a strong focus on addressing equity in relation, amongst others, to class, gender, race, youth, geography and disability.” The Committee asks the Government to provide information on:

• (i)the impact registered so far of the measures adopted, within the framework of the National Skills Development Plan (2030) or otherwise, on the inclusion in the labour market of workers from the designated groups, namely “Black” persons, women, workers with disabilities and young people; and
• (ii)concrete measures taken by employers for the skills training of workers.

Indigenous peoples. The Government states that indigenous people are included in the “Black” group designated for positive action to ensure their equitable representation in the workforce because they were previously disadvantaged by Apartheid laws. This includes access to education and vocational training initiatives developed to promote equality of opportunities and fair treatment in employment. The Committee welcomes the adoption of the Traditional and Khoi-San Leadership Act, 2019 which entered into force in November 2019. While noting the fact that indigenous people are included in the designated groups, the Committee urges the Government to provide information on the concrete measures adopted for the promotion of equality of opportunities and treatment in employment and occupation for indigenous peoples, including through education and vocational training.

Employment equity plans. With regard to its previous comment, the Committee notes that the Employment Equity Act 1998 was amended in May 2022 and refers to the comments it makes in the observation addressed to the Government on the subject. The Committee reiterates its request for 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.

Article 5. Special measures. Affirmative action. The Committee notes the statistical information provided by the Government in response to its previous comment which shows that, except for HIV and AIDS education and prevention programmes as indicated above, less than 10 per cent of employers report barriers or challenges in meeting their employment equity goals. In this regard, the Committee refers to the comments it makes in the observation addressed to the Government on the subject and, especially, the Equity Employment Act implementation issues. It also notes that the UN Committee on the Rights of Persons with Disabilities (CRPD), in its concluding observations, expressed concerns about the limited understanding of the concept of reasonable accommodation among public authorities and the lack of legislation protecting persons with disabilities against multiple and intersecting forms of discrimination (CRPD/C/ZAF/CO/1, 23 October 2018, paragraph 8). The Committee asks the Government 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 designated groups, namely Black people, women and persons with disabilities (including regarding reasonable accommodation), and on any steps taken or proposed to address the implementation challenges of the Employment Equity Act.

Enforcement. The Committee notes the information provided by the Government on the cases addressed by the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court regarding the application of the Employment Equity Act, in response to its previous comment. It notes also that the CEDAW expressed concerns about the persistence of discriminatory gender stereotypes in the justice system and the stigmatization of women complainants, in particular those living in informal settlements, women migrant workers, rural women, women with disabilities and women with albinism. The CEDAW also noted that Equality Courts are concentrated in urban areas, which makes it difficult for rural women, in particular those with insufficient means to travel, to access justice and reparations (CEDAW/C/ZAF/CO/5, paragraphs 21-24). The Committee asks the Government to provide information on:

• (i) measures taken and results achieved in:
• (i) strengthening mechanisms for assessing compliance with the equality legislation; and
• (ii) facilitating access to judicial bodies to all, including women in rural areas; and
• (iii) the number and outcomes of any discrimination cases examined by the Labour Courts, the Commission for Conciliation, Mediation and Arbitration, the Commission for Employment Equity and any other redress mechanisms.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations made by the social partners within the National Economic Development and Labour Council (NEDLAC) and communicated with the Government’s report.

Articles 1 and 2 of the Convention. Discrimination based on race, colour and national extraction. Affirmative action. The Committee notes with interest the Government’s indication, in its report, that it is implementing various initiatives in order to strengthen its efforts in promoting equality of treatment and opportunities of all designated groups, such as: (1) conducting annual employment equity workshops nationally with workers, employers and their representative organizations and other interested parties; and (2) forging strategic partnerships between the Commission for Employment Equity (CEE) and various key institutions such as the Commission for Gender Equality, the South African Human Rights Commission, the National Skills Authority, the Broad-Based Black Economic Empowerment Commission, the Department of Youth and Persons with Disabilities in the Presidency, the Commission for Conciliation, Mediation and Arbitration (CCMA), the Public Employment Services and the Inspections and Enforcement Services Branches of the Department of Employment and Labour. The main objectives of these partnerships are to raise awareness on the right to equality, dignity and fair treatment and to ensure there is coherence in the various policy instruments and implementation. The Government adds that the labour inspectors conduct employment equity inspections to assess the legal compliance with the Employment Equity Act, 1998 (EEA).

The Committee notes that the Government refers to the process of amending the Employment Equity Act 1998 with a view to: (1) empowering the Minister of Employment and Labour to regulate sector specific employment equity targets in order to address the slow pace of transformation in the labour market until now and achieve equitable representation of the designated groups, namely, black people, women, and persons with disabilities; (2) exempting employers with less than 50 employees from implementing Chapter III of the EEA on affirmative action; and (3) regulating assessment criteria for the issuing of employment equity compliance certificates as a prerequisite for accessing state contracts (section 53 of the EEA). In this regard, the Committee further notes that the Employment Equity Amendment Bill was adopted by Parliament (National Assembly and National Council of Provinces) on 17 May 2022. The Committee notes that the workers’ representatives within NEDLAC welcome the amendments of the EEA, but underline that the main issue is the non-implementation of section 53. The Committee also notes that the Chief Director of Statutory and Advocacy Services within the Department of Employment and Labour indicated in March 2022 that, in the past financial year, 60 per cent of employers had been referred to prosecution for failure to comply with the employment equity legislation; and that the review process of the Director-General of the Department of Employment and Labour (under section 43 of the EEA) revealed a 94 per cent non-compliance rate with the EEA. It further notes the information, shared by the Minister of Employment and Labour and the Chairperson of the CEE on the launch of the 22nd CEE Annual Report (April 2021-March 2022), that the labour market compliance levels with the EEA “remain[ed] regretfully low”, echoing in this the findings of the CEE. White and Indian population groups remained over-represented at top management, senior management and professionally qualified/middle management levels, against their Economically Active Population (EAP) rate. White people represented 63.2 per cent of top managers and 51.4 per cent of senior managers whereas the African and Coloured population groups were grossly under-represented at these levels (even at the professionally qualified/middle management level, the African population group was approximately 33 per cent below their EAP rate). It is worth noting that, at the top management level, the representation of the White population group was approximately seven times their EAP rate in the private sector (and just below their EAP in the public service) whereas the African population group representation was nearly six times below their EAP rate in the private sector (and almost at their EAP rate in the public service). The same pattern is reproduced at senior management level. As for the representation of the Coloured population group at top management level, it was far below their EAP rate in the private sector and slightly above their EAP rate in the public service. The Minister also noted with concern “the continued and flourishing slave conditions in the labour market, wherein the immigrants were being exploited”.

In view of the above, the Committee asks the Government to continue to strengthen its efforts in promoting equality of treatment and opportunities in employment and occupation of all the designated groups and to provide information on: (i) the results achieved in the transformation of the labour market towards a more equitable representation of the designated groups (including statistical data as shown in the annual report of the Commission for Employment Equity); and (ii) the assessment of its affirmative action measures with a view to determining whether they remain effective and are in line with the principle of non-discrimination.

It also asks the Government to provide information on: (i) the actions taken within the framework of the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance, 2019–2024, the obstacles identified and the results achieved; and (ii) the implementation of section 53 of the Employment Equity Act as amended (measures put in place to evaluate the assessment criteria for the issuing of employment equity compliance certificates and number of certificates denied based on this assessment).

The Committee is raising other matters in a request addressed directly to the Government.

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

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.

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

The Committee notes the observations made by the Solidarity Trade Union (South Africa) received 12 May 2017 and the Government’s response received 17 August 2017.

Articles 1 and 2 of the Convention. Discrimination based on race, colour and national extraction. Affirmative action. The Committee notes that in its observations, the Solidarity Trade Union raises concerns about the application of the Government’s affirmative action policy, including the Employment Equity Act (EEA), and the Broad-Based Black Empowerment (BBE) Act. While recognizing the need for special measures, including affirmative action, on account of the legacy of the system of apartheid, the Solidarity Trade Union emphasizes that such measures should be designed within the spirit of the Constitution and should not create new forms of racial discrimination. The Union maintains that the Government undermines the constitutional obligations of non racialism and the right to equality through a system of racial representativity which is endorsed by the courts and which is aimed at achieving a workforce which reflects the economically active population. The Union provides examples of court decisions and draws particular attention to the decision of the Constitutional Court (Case CCT 78/15) in Solidarity v. Department of Correctional Services, [2016] ZACC 18 of 16 July 2016 confirming that the EEA seeks to achieve a constitutional objective that every workforce or workplace should be broadly representative of the people of South Africa. Arguing that the affirmative action programme is not of a temporary nature, the Solidarity Trade Union submits examples of employment equity plans that have been implemented by the Department of Correctional Services during the past 16 years, and calls for a “sunset clause”. While supporting the constitutional objective of a civil service that is “broadly reflective” of the people of South Africa, the Solidarity Trade Union argues that other factors in furtherance of this objective should be taken into consideration, including the ability of the candidates to do the work and the specific demographics of the diverse communities.

The Committee notes that, in its reply, the Government emphasizes that article 9(2) of the Constitution makes explicit provision for affirmative action measures, and affirms that its affirmative action programme is a temporary measure until reasonable progress is made towards achieving the purpose of the EEA, i.e. the elimination of unfair discrimination and the achievement of the equitable representation of designated groups across all occupational levels in the workplace. Regarding the Solidarity Trade Union’s call for a “sunset clause”, the Government responds that the EEA already has an entrenched “sunset clause” against which the implementation of the Act should be measured, based on goal oriented flexible target setting, rather than on strictly time-bound and quota oriented goals that create absolute barriers. The Committee further notes the Government’s indication that with the entry into force in 2014 of the Employment Equity Amendment Act No. 47 of 2013, the need has arisen to review all provisions affected by the amendment and that a draft amended Code of Good Practice on the preparation, implementation and monitoring of the Employment Equity Plan was published on 30 September 2016. The Government indicates that, despite the comprehensive legal framework in place, the pace of change has been slow. According to the Government, there have been a number of implementation challenges which have contributed to this situation, including, among other things, resistance by employers to embracing employment equity.

The Committee notes that the Government provides statistics from the annual report of the Employment Equity Commission (EEC) which indicate that in 2016 certain groups were still visibly under-represented in certain positions. It notes, among other things, that in 2016 the economically active population was distributed as follows: African: 78 per cent (42.8 per cent men and 35.2 per cent women); Coloured: 9.8 per cent (5.3 per cent men and 4.5 per cent women); Indian: 2.8 per cent (1.8 per cent men and 1 per cent women); and White: 9.5 per cent (5.3 per cent men and 4.2 per cent women). The EEC report also shows that White persons continue to be over-represented at the higher occupational levels, in top and senior level management (in 2016, 14.4 per cent African: 4.9 per cent Coloured; 8.9 per cent Indian: 68.5 White at the top management level; and 22.1 per cent African, 7.7 per cent Coloured, 10.6 per cent Indian and 58.1 per cent White at the senior management level). In contrast, the African and Coloured groups are over-represented in the semi-skilled and unskilled professions (in 2016, 76.1 per cent of the positions in semi-skilled and 83.2 per cent in unskilled occupations were occupied by Africans, and respectively 12.3 per cent and 11.4 per cent by Coloured). Africans continue to be the most represented group in government and state-owned companies and gender gaps persist in the representation of especially Black women and persons with disabilities particularly in the middle-to-upper occupational levels.

The Committee recognizes the particularly complex reality of South Africa where racial segregation has been deeply entrenched during apartheid including in employment and occupation. The Committee has previously noted that in order to give effect to article 9(2) (affirmative action measures) of the Constitution, section 2 of the EEA places an obligation on “designated employers” to implement “affirmative action measures to redress disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels in the work force”. The Committee notes that the judgment of the Constitutional Court reiterates earlier case law supporting the affirmative action policy of the Government. The Committee recalls that in the context of measures to implement the national equality policy required under Article 2 of the Convention, treating certain groups differently may be required to eliminate discrimination and to achieve substantive equality for all groups covered by the Convention (General Survey on the fundamental Conventions, 2012, paragraph 844). The Convention therefore allows for affirmative action measures which are aimed at ensuring equality of opportunity in practice, taking into account the diversity of situations of the persons concerned, so as to halt discrimination, redress the effects of past discriminatory practices and restore a balance. They are part of a broader effort to eliminate all inequalities and an important component of the national equality policy, required under Article 2 of the Convention. To be in accordance with the Convention, such measures must genuinely pursue the objective of equality of opportunity, be proportional to the nature and scope of the protection or assistance needed or of the existing discrimination, and be examined periodically in order to ascertain whether they are still needed and remain effective. Affirmative action grounded on prior consultation and the consent of the stakeholders, including workers’ and employers’ organizations, helps to ensure that the measures taken are broadly accepted, effective and in line with the principle of non-discrimination (see General Survey, 2012, paragraph 862). Taking into account the unique situation of South Africa and the particular challenges the Government faces in implementing special measures to address inequalities, the Committee asks the Government to strengthen its efforts in promoting equality of treatment and opportunities in employment and occupation of all the designated groups, irrespective of race and colour, and of the inclusion of African and Coloured workers in the labour market, and to report on the action taken in this regard. The Committee also asks the Government, in consultation with workers’ and employers’ organizations and other stakeholders, to examine the impact of its affirmative action measures on all the affected groups, especially the most disadvantaged and vulnerable among them, in the spheres of employment and occupation with a view to determining whether the measures continue to pursue the objective of equality of opportunity, remain effective, and are in line with the principle of non-discrimination.

The Committee is raising other matters in a request addressed directly to the Government.

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

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.

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

Legislation. The Committee notes with interest the adoption of the Employment Equity Amendment Act, 2013, amending the Employment Equity Act, 1998, as well as the Employment Equity Regulations, 2014, and the Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value of 1 June 2015. The Committee notes the Government’s indication that the main purposes of the amendments to the Employment Equity Act, 1998, are to be more specific on the principle of equal pay for work of equal value and to strengthen the compliance and enforcement mechanisms in the Act, including by increasing fines. The Committee notes that section 6(1) of the Employment Equity Act, 1998, as amended in 2013, includes in the list of unfair grounds of discrimination, a provision on discrimination on the basis of arbitrary grounds; that the burden of proof in relation to unfair discrimination has now been made clearer for both listed and arbitrary grounds, and that the Commission for Conciliation and Arbitration is now available to arbitrate on discrimination cases, including sexual harassment cases. The Committee requests the Government to provide information on the implementation in practice of the Employment Equity Act, 1998, as amended in 2013, the Employment Equity Regulations, 2014, and the Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value with respect to the aspects covered by the Convention. The Committee also requests the Government to provide information on any other arbitrary ground considered by administrative or judicial decisions, as well as any discrimination cases addressed by the Commission on Human Rights, the Commission for Employment Equity, 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 Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Legislative developments. The Committee notes the Government’s indication that the Employment Equity Regulations were amended in July 2009, in order to better implement employment equity at the workplace by simplifying data collection instruments and improving the quality of the data collected. The Committee also notes the Government’s indication that amendments to the Employment Equity Act (EEA) are underway and that following these amendments, the Employment Equity Regulations will once again be amended. The Committee notes from the Commission for Employment Equity’s (CEE) tenth annual report that amendment proposals include adding provisions that deal explicitly with wage discrimination on the basis of race and gender and simplifying enforcement provisions. The Committee asks the Government to provide information on the implementation of the revised Employment Equity Regulations, and in particular their impact on better implementing employment equity in the workplace. The Committee also requests information on the status of the amendments to the EEA and on any future developments concerning amendments to the Employment Equity Regulations.

Article 1(1)(a) of the Convention. Sexual harassment. The Committee notes from the Commission on Gender Equality’s annual report, that in 2009–10 three complaints relating to sexual harassment in the workplace were filed. Recalling its previous comments, the Committee reiterates its request for information on the Code of Good Practice on the Handling of Sexual Harassment Cases, including regarding the extent to which it has been used by employers to develop their own policies, and to collect information on the impact of such policies on preventing and addressing sexual harassment. The Committee also asks the Government to provide information on any other measures adopted or envisaged to prevent and address sexual harassment in the workplace. Please continue to provide information on the outcome of any relevant judicial or administrative decisions regarding this issue including the outcome of complaints of sexual harassment referred to in the Annual Report of the Commission of Gender Equality (2009–10).

Article 2. National equality policy. The Committee notes the Government’s indication that unfair discrimination in the workplace is covered by the EEA and is an issue under the Department of Labour and the CEE established by the EEA. The Committee recalls section 4 of the EEA which excludes the following workers from the application of the Act: members of the National Defence Force; the National Intelligence Agency; and the South African Secret Service. However, these categories of workers appear to be covered by the Promotion of Equality and Prevention of Discrimination Act (PEPUDA) and therefore can file complaints to the Human Rights Commission (section 5(3)). Noting that the schedule providing the list of unfair practices refers to labour and employment, including equal access to employment opportunities (section 29, PEPUDA), the Committee requests information on the implementation of the PEPUDA with regard to workers excluded from the EEA. Please provide information on any investigations conducted by the HRC, with respect to complaints of unfair discrimination in employment and occupation, as well as on any relevant activities carried out by this body with a view to promoting the principle of equality of opportunity and treatment in employment and occupation.

Equality between men and women. The Committee notes from the statistical data provided by the Government that women continue to be under represented in top and senior management positions (18 per cent and 26.7 per cent). White males still dominate top management positions in the workplace and women are more widely represented in administrative functions. Recalling its previous comments, the Committee notes that there are still more black women in unskilled occupations than white women (of the total amount of people employed in unskilled occupations, 28.6 per cent are black women and 0.4 per cent are white women). The Committee also notes that the United Nations Committee on the Elimination of Discrimination against Women, in its 2011 concluding observations, expressed concern over the persisting patriarchal attitudes and deep-rooted stereotypes concerning women’s roles and responsibilities that discriminate against women and perpetuate their subordination within the family and society (CEDAW/C/ZAF/CO/4, 4 February 2011, paragraph 20). The Committee further notes from the Commission for Gender Equality’s (CGE) 2009–10 annual report that 19 complaints related to gender discrimination were investigated by the CGE. The Committee requests the Government to provide information concerning measures taken or envisaged to raise awareness regarding gender discrimination in employment and occupation, including addressing stereotyped assumptions regarding women’s roles and responsibilities. The Committee also asks the Government to provide information on measures taken to address occupational segregation, including those aimed at promoting women’s access, and particularly black women, to a greater variety of jobs and higher level positions. Please continue to provide information on the number and outcome of complaints concerning discrimination in employment and occupation based on gender dealt with by the CGE.

Equality in employment and occupation irrespective of race and colour. The Committee notes from the Government’s report that the Director-General’s reviews conducted in terms of sections 43–45 of the EEA revealed that the “white group” accounts for 62 per cent of all positions at top and senior management levels, 55 per cent of all recruitments and 52 per cent of all promotions in 2009 at these upper occupational levels. The reviews indicated that Africans and coloured, both male and female, seem to be most negatively affected by unfair discrimination and racial stereotypes in workplaces. The Government indicates that it continues to advocate and educate both employers and employees, including trade unions, on how to implement measures to redress these imbalances through employment equity road shows. The Government also refers to a skills development strategy, and black economic empowerment targets contained in the Codes published under the Broad-Based Black Economic Empowerment Act, 2003, including with respect to public procurement processes. Recalling its previous comments relative to existing wage discrimination on the grounds of colour and race, the Committee asks the Government to provide detailed information on income differentials between the designated groups which have emerged from the income differentials statements submitted by employers under the new Employment Equity Regulations. The Committee also asks the Government to provide further information on the measures taken or envisaged to address occupational segregation based on race and colour, and to promote equality in employment and occupation irrespective of race and colour, including through the employment equity road shows, the skills development strategy and the Codes developed under the Broad-Based Black Economic Empowerment Act, as well as the impact of such measures.

Employment Equity Plans. The Committee notes that following the Director-General’s reviews, 74 previously reviewed companies were followed up in 2009 in order to monitor their compliance with the Director-General’s Recommendations. The Committee also notes that when analysis of Employment Equity Plans (EEPs) revealed disparities in remuneration based on gender or race, agreements were reached with employers to incorporate remedial action into their EEPs in order to ensure that individuals were paid in terms of the “equal pay for work of equal value” principle. The Committee asks the Government to provide information on measures taken to monitor employers’ compliance with remedial action incorporated into EEPs aiming to eliminate disparities in remuneration and other discrimination based on gender or race. The Committee reiterates its requests for information on any relevant cases of non-compliance with Director-General’s Recommendations brought before the Labour Court. Please also continue to provide information on the implementation of the EEPs and the findings of the Director-General’s reviews.

Article 3(a). Cooperation with social partners. The Committee notes that the tripartite CEE consults and cooperates with the social partners in the process of amending legislation on discrimination. The CEE cooperated with the social partners concerning the amendments to the Employment Equity Regulations in 2009, and is continuing this cooperation in the process of negotiating the amendments to the EEA until the finalization through the Cabinet and Parliament. The Committee asks the Government to continue to provide information on the cooperation with employers’ and workers’ organizations in promoting equality in employment and occupation. Please continue to provide information on the activities carried out by the National Economic Development and Labour Council (NEDLAC) and its “employment equity/skills development” team with a view to promoting the implementation of the EEA.

Article 3(e). Access to vocational training. The Committee notes from the Government’s report that the National Skills Development Act aims to provide equal opportunities for people to undergo skills development programmes and that, in this connection, measures have been put in place to reach out to persons who are particularly affected by discrimination in employment and occupation. The Committee asks the Government to provide specific information on the measures taken to address equality of opportunity through vocational training and more particularly with regard to affected groups such as black persons, women, people with disabilities and youths. The Committee once again reiterates its request for information on the outcome of the second phase of the National Skills Development Strategy (NSDS) and the findings of the independent research project. Please also provide statistical information on unemployed black people, women and persons with disabilities receiving training and employment in connection with the programmes carried out by the Government.

Article 5. Special measures. The Committee notes that during the Director-General’s review process, employers must identify barriers that adversely affect black people, women and people with disabilities, and thereafter implement affirmative action measures in their EEPs to address those barriers. The Committee further notes that EEPs that do not contain clear affirmative action measures are not approved by the Director-General for implementation. The Committee asks the Government to provide specific information on the number and content of affirmative action measures taken by employers to address discrimination against black people, and women in employment and occupation. Please also provide information on measures taken to monitor employers’ compliance with their EEPs with respect to the affirmative action measures they include.

Persons with disabilities. The Committee notes from the CEE’s tenth annual report that persons with disabilities still face various challenges in terms of accessing equality in employment and occupation. The CEE’s report also indicates that workers with disabilities were concentrated in lower occupational levels, and the most under-represented groups of persons with disabilities are blacks and women, particularly Africans and coloured. In this connection the Committee notes the Government’s indication that the measures included in the Code of Good Practice on the Employment of People with Disabilities and its Technical Assistance Guidelines are “continually considered to be necessary” and include the principle of reasonable accommodation. The Committee asks the Government to provide specific information on measures taken to implement the Code of Good Practice on the Employment of People with Disabilities and its Guidelines, including any specific affirmative action measures in the EEPs relating to counteracting discrimination towards persons with disabilities. The Committee reiterates its request for a copy of the Integrated National Disability Strategy.

Indigenous peoples. The Committee notes the information provided by the Government in the study on indigenous people’s rights undertaken by the South African Human Rights Commission (SAHRC) in 2004. The Committee notes the SAHRC’s recommendations concerning education of Khomani San children, which include, inter alia, establishing a transport system to better improve attendance, encouraging the use of indigenous language through language projects, and improving collaboration between management components of schools and the Department of Social Services and Population Development. The Committee notes that in 2004, only 1.1 per cent of the Khomani San community received tertiary education or other post-school training. The Committee notes from the report published by the ILO and the African Commission on Human and Peoples’ Rights in 2009 that indigenous peoples were numbered at approximately 316,600 and constituted five groups (Khomani San, Khwe San, Xun San, Nama Khoe and Griquas). The Committee further notes that while general legislation on discrimination provides protection for indigenous peoples (sections 1 and 9 of the Constitution), the legal framework is not specific to groups self-identifying as indigenous peoples. The Committee recalls its comments concerning the adoption of special measures aimed at addressing the discrimination historically suffered by indigenous peoples in employment and occupation contemplated by Article 5(2) of the Convention. The Committee asks the Government to provide information on any special measures aimed at addressing discrimination against indigenous peoples in employment and occupation, including measures promoting educational opportunities respectful of their particular needs. Please also provide specific information regarding any developments in the access to education for children of the Khomani San community. The Committee also requests the Government to provide information on developments concerning the memorandum adopted by the Cabinet that would lead to an official policy recognizing vulnerable indigenous communities.

Part IV of the report form. Enforcement. The Committee notes the information provided by the Government concerning the seven cases which related to unfair discrimination at the workplace. The Committee asks the Government to continue providing information on discrimination cases addressed by the courts, as well as information on the number, nature and outcome of cases brought by the CEE or the Human Rights Commission to the Labour Court or the Commission for Conciliation, Mediation and Arbitration (CCMA). The Committee reiterates its requests for information on any measures taken or envisaged by the Government to address the issue of ensuring access to justice for disadvantaged groups such as indigenous peoples.

Part V. Practical application. The Committee notes from the concluding observations of the United Nations Committee on the Elimination of Discrimination against Women the establishment of the Women’s Empowerment and Gender Equality Branch within the recently created Ministry for Women, Children and People with Disabilities and the adoption of a National Gender Policy (CEDAW/C/ZAF/CO/4, 4 February 2011, paragraph 6). The Committee reiterates its request for information on whether the Commission for Gender Equality is considering the possibility of collaborating with the House of Traditional Leaders to combat and overcome negative stereotypical assumptions concerning women’s role in society and whether the Women’s Empowerment and Gender Equality Branch plays a role in attaining this objective. Please provide information concerning specific measures included in the National Gender Policy to promote equality of opportunity and treatment in employment and occupation.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 1(1)(b) of the Convention. HIV/AIDS status. The Committee notes with interest the decision rendered by the Labour Court of Johannesburg in February 2011 (Allpass v. Mooikloof Estates, Case No. JS178/09), awarding the complainant compensatory damages for unfair dismissal and discrimination on the grounds of his HIV status, and making specific reference to the Convention, and to the HIV and AIDS Recommendation, 2010 (No. 200) as a recognition of the impact of discrimination based on real or perceived HIV status and its increasing prevalence. The Court also refers to the notion of “inherent job requirement”, included in Article 1(2) of the Convention, pointing out that the Committee has emphasized the need for a strict interpretation of this notion. The Committee asks the Government to continue to provide information on judicial and administrative decisions concerning discrimination in employment and occupation based on HIV/AIDS status. The Committee also reiterates its request for information concerning the South African Defence Force Policy on HIV/AIDS status, which was to be revised following the decision rendered by the High Court of Pretoria in May 2008. The Committee also once again asks for information concerning the National Strategy Plan on HIV/AIDS (2007–11), including measures adopted under this plan to prevent and address discrimination in employment and occupation based on HIV/AIDS status.

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 1, paragraph 1(a), of the Convention. Sexual harassment. The Committee notes from the Government’s report that various cases of sexual harassment in the workplace were brought before tribunals, including cases addressing employers’ duty to take reasonable steps to prevent it. In this regard, the Committee recalls its previous comments concerning the adoption of the Code of Good Practice on the Handling of Sexual Harassment Cases, which is meant to guide employers in developing their own codes of practice to tackle sexual harassment at work. The Committee again requests the Government to monitor the extent to which the Code of Good Practice has been used by employers to develop their own policies, and to collect information on the impact of such policies on preventing and addressing sexual harassment. Please also provide information on any other measures adopted or envisaged to address sexual harassment in the workplace and continue to provide information on judicial and administrative decisions regarding sexual harassment and on the remedies provided.

Article 1, paragraph 1(b). HIV/AIDS status. The Committee notes the decision of the High Court of Pretoria of May 2008, holding that the implementation of the HIV testing policy adopted by the South African National Defence Force (SANDF), in terms of which no persons who are HIV positive may be recruited, deployed externally or promoted within the SANDF, infringes their right not to be unfairly discriminated against, as enshrined in article 9(3) of the Constitution, and should therefore be revised. The Committee requests the Government to provide information on the outcome of the SANDF’s policy review. Noting the adoption of the National Strategy Plan on HIV/AIDS
(2007–11), the Committee would also appreciate receiving information on any measures adopted or envisaged under this plan to prevent and address discrimination in employment and occupation based on HIV/AIDS status.

Article 2. Promotion of national policy. Recalling its previous comments on the role of the Human Rights Commission (HRC) in monitoring the implementation of the Promotion of Equality and Prevention of Discrimination Act (Equality Act), the Committee reiterates its request for information on the number and results of investigations conducted by the HRC, with respect to complaints of unfair discrimination in employment and occupation, as well as on any relevant activities carried out by this body with a view to promoting the principle of equality of opportunity and treatment at work. Please also provide information on the measures taken or envisaged under section 25 of the Equality Act to publicize the Act.

Equality between men and women. In its previous comments, the Committee noted that women are disproportionately found in the least remunerated and lowest ranking occupations. It also noted that there are more black women employed in unskilled occupations than white women (of the total amount of people employed in unskilled occupations, 23.5 per cent are black women and 0.7 per cent are white women). The Committee notes the Government’s indication that this situation is the result of the persisting effects of apartheid which the Employment Equity Act (EEA) of 1998 aims to address. It also notes that the review conducted to assess employers’ compliance with the EEA points out a substantial shift towards the employment of white women at the upper occupational levels when compared to the employment rights of women from other groups, especially black women. According to the Government’s report, white women are the biggest beneficiaries of the EEA. The Committee encourages the Government to make every effort to reduce the occupational segregation of women in low-skilled jobs, especially black women, and requests it to supply information on the specific measures taken or envisaged to this end, including measures aimed at promoting women’s access to a greater variety of jobs and higher level positions, through, for example, education and professional training. The Committee also requests the Government to provide statistical information on the situation of men and women in the labour market, including data on the distribution of men and women in the various sectors, occupations and positions of responsibility in both the public and the private sectors, disaggregated, as far as possible, by colour and national extraction.

Equality in employment and occupation irrespective of race and colour. The Committee refers to its previous comments regarding the high concentration of black persons in low-skilled jobs. It notes the Government’s indication that in 2006 the “white group”, which accounted for only 10 per cent of the population, represented between 50 per cent and 65 per cent of all recruitments and all promotions at the middle-to-upper occupational levels. The Committee also understands from the information provided by the Government on the Equal Remuneration Convention, 1951 (No. 100), that there exist various cases of wage discrimination on the grounds of colour and race. The Committee requests the Government to provide full information on the measures taken or envisaged to address the current horizontal and vertical occupational segregation in the labour market based on colour and race and on their impact. It also requests the Government to continue to make every effort to promote equality of opportunity and treatment in employment and occupation, irrespective of race and colour, including with regard to working conditions and equal remuneration for work of equal value, and to supply information on the measures taken or envisaged to this end, including on any educational and awareness-raising initiatives, carried out in collaboration with the social partners, with a view to combating discrimination, and their impact. Please also supply information on income differentials between the designated groups which have emerged from the income differentials statements submitted by employers under the Employment Equity Regulations on Income Differentials.

Employment Equity Plans. With regard to its previous request for information on the implementation of Employment Equity Plans (EEPs), the Committee notes that, according to the findings of the reviews conducted by the Director-General of the Department of Labour pursuant to section 44 of the EEA, most employers submitted their Employment Equity reports without developing an EEP and those who adopted a plan did not set clear objectives and affirmative action measures. The Committee recalls that the Director-General can make recommendations to employers indicating which steps should be taken in relation to the formulation of the EEP or its implementation (section 44) and that, in the case of non-compliance with these recommendations, the issue can be referred to the Labour Court (section 45). The Committee requests the Government to indicate what measures have been taken as a follow-up to the Director-General’s recommendations, including information on any cases of non-compliance referred to the Labour Court. Please also continue to provide information on the implementation of the EEPs and the findings of the Director-General’s reviews. The Committee would also appreciate receiving information on the activities carried out by the Commission for Employment Equity under section 30 of the EEA.

Article 3(a). Cooperation with the social partners. The Committee notes the Government’s indication that the National Economic Development and Labour Council (NEDLAC) has an “employment equity/skills development” team, comprising government and social partner representatives, which, among other things, assists employers in preparing their Employment Equity reports and carries out awareness-raising campaigns on the EEA. The Committee invites the Government to continue to provide information on the activities carried out by the NEDLAC and by its “employment equity/skills development” team with a view to promoting the implementation of the EEA. Please also provide information on any other initiatives realized in collaboration with workers’ and employers’ organizations to promote the acceptance and the full application of the national equality policy, as well as on their impact, particularly as regards the design and implementation of affirmative action measures under the EEP.

Article 3(e). Access to vocational training. The Committee recalls that phase two of the National Skills Development Strategy (NSDS) (April
2005–March 2010) focused on the training of black persons, women, people with disabilities and youths. It also recalls that an independent research project was launched to evaluate the impact of such training in relation to the placement results in employment and learning opportunities. The Committee again requests the Government to provide information on the outcome of the second phase of the NSDS and the findings of the independent research project. Please also indicate the number of unemployed black people, women and persons with disabilities who received training and sustainable employment in connection with the programmes carried out.

Article 5. Special measures. The Committee again encourages the Government to maintain special emphasis on affirmative action measures in order to overcome the persistent effects of past patterns of discrimination against black persons and women and reiterates its request for information on the measures taken to this end and their impact on promoting equality of opportunity and treatment in employment and occupation.

Persons with disabilities. The Committee notes that the Code of Good Practice on Managing Disability should assist employers, workers and their organizations to develop, implement and refine disability equity policies and programmes, in accordance with the needs of their own workplaces. The Code also sets out additional measures that should reinforce the EEPs with the aim of ensuring equal opportunities for people with disabilities who are suitably qualified for a job. The Committee notes from the Government’s report that the reviews conducted by the Director-General found that employers are reluctant to hire people with disabilities because of difficulties in finding suitably qualified candidates among people with disabilities and the costs involved in providing reasonable accommodation of their needs. The Committee also notes that the Integrated National Disability Strategy (INDS) is being reviewed to bring it in line with the newly ratified UN Convention on the Rights of Persons with Disabilities. The Committee requests the Government to provide information on the measures taken or envisaged to enhance the implementation of the Code of Good Practice on Managing Disability and to promote the insertion of specific affirmative action measures in the EEPs, including with regard to access to vocational training. Please also provide a copy of the new Integrated National Disability Strategy once finalized.

Indigenous peoples. The Committee refers to its previous comments on the situation of indigenous peoples in the country, emphasizing that these peoples are highly marginalized and concentrated at the lower end of the socio-economic scale. It notes from the Government’s report to the UN Universal Periodic Review Mechanism (15 April 2008) that there are an estimated 10,000 members of the indigenous San community living in South Africa. It also notes that the Northern Cape Department of Education is currently exploring the possibility of using the standard orthography of the San to develop learning and teaching support material for use in primary school (paragraph 77). Recalling that Article 5(2) of the Convention contemplates the adoption of special measures to meet the particular requirements of persons who are generally recognized as requiring special protection, such as indigenous peoples, the Committee requests the Government to provide information on any special measures adopted or envisaged to address the discrimination historically suffered by indigenous peoples in employment and occupation, including measures promoting educational opportunities respectful of their particular needs. It also reiterates its request for a copy of the study on indigenous peoples’ rights, undertaken by the South African Human Rights Commission, and for information on whether the official policy on recognizing vulnerable indigenous communities has been adopted. Should this be the case, please provide a copy of this policy.

Part IV of the report form. Enforcement. The Committee notes the decision by the Labour Court of Johannesburg of March 2008, highlighting that irregular migrant workers enjoy the right to fair labour practices laid down in article 23 of the Constitution, and the protections enshrined in the Labour Relations Act. The Committee requests the Government to continue to provide information on relevant court rulings. Noting the difficulties faced by the most disadvantaged groups, including indigenous peoples, in accessing justice, the Committee again requests the Government to provide information on any measures taken or envisaged to address this problem.

Part V. Practical application. The Committee notes from the information supplied by the Government on the activities of the Commission of Gender Equality, that the Commission is in the process of holding talks with the House of Traditional Leaders as a response to the violent killing of two women in Mthonjana. The Committee requests the Government to continue to provide information on the activities undertaken by the Commission of Gender Equality, including information on whether the Commission is considering the possibility of collaborating with the House of Traditional Leaders to combat and overcome negative stereotypical assumptions concerning women’s role in society. Please also provide information on any initiatives carried out by the Office of the Status of Women and the Commission for the Protection of the Rights of Cultural, Religious and Linguistic Communities to promote equality of opportunity and treatment in employment and occupation, irrespective, in particular, of sex, race, colour, national extraction and social origin.

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

1. Article 1(1)(a) of the Convention. Sexual harassment. The Committee recalls its previous comments regarding sexual harassment and the adoption of the Code of Good Practice on the Handling of Sexual Harassment Cases. It notes that according to the Government’s report, the Code is merely a guide to assist employers in developing their own codes of practice. The Government’s report goes on to state that the Department of Labour does not have information on the handling of sexual harassment cases since the development of the codes of practice is within the jurisdiction of the employers. The Committee reminds the Government that it has an obligation to ensure the application of the principles of non-discrimination in respect of employment, and is responsible for the supervision and effective enforcement of anti-discrimination laws, including those provisions prohibiting sexual harassment. The Committee asks the Government to monitor the extent to which the Code of Good Practice has been used by employers to develop their own policies, and to collect information on whether such policies have helped to prevent and address sexual harassment. The Committee also asks the Government to supply information on the practical impact of the codes developed by employers, and on any other measures to address sexual harassment in employment and occupation. Please also provide information on any judicial and administrative decisions regarding sexual harassment including on remedies provided.

2. Article 2. Promotion of national policy. The Committee recalls its previous comments on the Promotion of Equality and Prevention of Discrimination Act (“Equality Act”) and the role of the Human Rights Commission (HRC), charged with monitoring the implementation of the Equality Act. It notes that pursuant to section 25 of the Equality Act, the HRC has conducted workshops to raise awareness on fundamental rights, including issues related to employment, with a view to enabling people to use the relevant legislative instruments to protect themselves against unfair discrimination. The Committee also notes that the HRC has established an internal mechanism to deal with issues of unfair discrimination and it is said to have resolved many complaints on that topic, and conducted investigations into cases of alleged unfair discrimination. The Committee asks the Government to provide further information on the activities of the HRC, particularly as regards the number and results of the investigations conducted with respect to complaints of unfair discrimination in employment, the complaints resolved and the assistance provided, including copies of the relevant documents, in so far as they relate to discrimination in employment and occupation. The Committee asks the Government to continue to keep it informed on the measures taken or envisaged to publicize its non-discrimination policy as called for in section 25 of the Equality Act.

3. Equality between men and women. The Committee notes that, according to the Government’s report, women workers are disproportionately found in the least remunerated and lowest ranking occupations. In particular, the largest proportion is found in clerical-related occupations. The Committee also notes that according to the statistical data provided by the Government, there are proportionately more black women found in unskilled occupations than white women (of the total amount of people employed in unskilled occupations, 23.5 per cent are black women and 0.7 per cent are white women). The Committee reminds the Government that occupational sex segregation in the labour market is one of the most common manifestations of discrimination on the ground of sex. The Committee further notes that the case Wallace v. Du Toit concerning a dismissal because of pregnancy, was decided in 2006 by the Labour Court, which held that the dismissal was unfair and unjustified. The Committee invites the Government to look into the underlying reasons for the present occupational segregation and asks the Government to indicate in its next report the measures taken or envisaged to reduce occupational segregation of women in low-skilled jobs and to promote their access to jobs with career opportunities and higher level positions. The Committee also refers to its comments addressed to the Government under the Equal Remuneration Convention, 1951 (No. 100).

4. Equality in employment and occupation with respect to race and colour. The Committee notes that the statistical data provided by the Government show a high concentration of black persons in low-skilled jobs. In particular, whereas only 17.9 per cent of African people are employed in top management occupations, compared to 72.6 per cent of white people, 83.3 per cent of African people are found in unskilled occupations. Moreover, the employment equity reports, referred to by the Government, indicate that in the reporting period of 2005, of all the top management employees recruited, 28.3 per cent were Africans compared to 58.6 per cent white people and, further, termination of employment was highest amongst Africans than in any other population group. The Committee asks the Government to keep it informed on the measures taken or envisaged to address occupational segregation on the ground of race and colour, particularly regarding access of African people to higher level occupations as well as advancement in their professional career.

5. Article 2. National equality policy. The Committee takes note of the information provided by the Government with respect to the composition of the Commission for Employment Equity and the functions which it is called to perform. The Committee also notes that a Code of Good Practice on the Preparation and Implementation of the Employment Equity Plans, as well as a user’s guide, have been developed to assist employers to prepare and implement their plans. In that respect, the Committee takes note of the creation by the Department of Labour of an employment equity database to monitor and evaluate the implementation of the relevant legislation. In particular, according to the data so far collected and the qualitative assessment of all the initiative taken in this regard, the Committee observes that the discrimination awareness programmes, diversity management programmes and other measures were implemented on a very small scale. On the other hand, 72 per cent of employers indicated that they had implemented affirmative action measures in the area of recruitment procedures, while 66.8 per cent reported that they had implemented affirmative action measures in training and development. Moreover, approximately 73.8 per cent of employers reported that they involved their employees prior to the development of their employment equity plans. The Committee would appreciate continuing to receive information on the concrete activities carried out by the Commission for Employment Equity, as well as receiving information on the activities carried out by the Equality Review Committee. In particular, the Committee invites the Government to keep it informed on the evaluation of employment equity plans.

6. Article 3(a). Cooperation with the social partners. The Committee notes the general information provided by the Government with respect to the functions to be fulfilled by the National Economic Development and Labour Council (NEDLAC). In the absence of information on the specific activities carried out by NEDLAC, the Committee again invites the Government to supply such information.

7. Article 3(e). Access to vocational training. The Committee notes that the National Skills Development Strategy (NSDS) was reviewed and phase two of this strategy, covering the period April 2005–March 2010, was launched by the Minister of Labour in 2005. The emphasis is maintained on the training of black persons, women and people with disabilities, as well as adding young people of all categories in the scope of the strategy. The Committee further notes that an independent research project is in the process of evaluating the impact of such training in relation to the placement results in employment and learning opportunities. The Committee asks the Government to continue to keep it informed on the outcomes of the second phase of the NSDS and to provide a copy of the findings of the independent research project when it is concluded. Moreover, the Committee reiterates its previous request that the Government provide indication of the number of unemployed black people, women and people with disabilities who received training and sustainable employment in connection with the programmes carried out.

8. Article 4. Individual suspected or engaged in activities prejudicial to the security of the State. The Committee again invites the Government to supply information on the practical application of this Article and on the procedures establishing the right of appeal to competent bodies, as contemplated by the Convention.

9. Article 5. Special measures. With regard to its previous request for information on the specific affirmative action measures taken to remedy the effects of past employment discrimination against black people, women and disabled persons, the Committee notes that the Government has put into practice a number of social and skills development programmes, such as the Hummer Project for unemployed youth or the Unicraft Centre for people with disabilities, aimed at disabled people or unemployed youth, mostly black persons and women. The Committee invites the Government to continue to focus on affirmative action measures in order to overcome the persistent effects of past patterns of discrimination against black persons, women and people with disabilities, and to monitor the impact of these measures. It also asks the Government to keep it informed on the further skills development programmes carried out and the progress achieved, including statistical data, disaggregated by race, gender and occupational level.

10. Persons with disabilities. The Committee notes the reference made by the Government to the Code of Good Practice on Managing Disability which was developed by the Commission for Employment Equity to assist employers with guidelines on equitable management of disability issues in the workplace. The Committee also takes note of the Integrated National Disability Strategy which shall direct all government responses to people with disabilities. The Committee asks the Government to supply a copy of the Code of Good Practice on Managing Disability and keep it informed as to the extent to which it is applied by employers in dealing with disability issues in the workplace. The Committee also invites the Government to provide information on the practical impact of the Integrated National Disability Strategy.

11. Indigenous peoples. The Committee notes that according to the report on the Mission to South Africa of the UN Special Rapporteur on the situation of indigenous peoples, there are six large groups in South Africa who identify themselves as indigenous, namely three main San peoples (!Xun, Khwe and Khomani), various Nama descendants (Khoekhoen), the Griqua, the Koranna descendants and the “revivalist Khoisan” (E/CN.4/2006/78/Add.2). They all tend to be highly marginalized and concentrated at the lower end of the socio-economic scale. The Committee also notes that in 2000 the South African Human Rights Commission prepared an extensive study on indigenous peoples’ rights and in 2004 the Government Cabinet adopted a memorandum that would lead to an official policy on recognizing “vulnerable indigenous communities”. Additionally, the Committee notes that according to the 2003 Report of the African Commission on Human and Peoples’ Rights on indigenous populations/communities, South Africa provides an “encouraging example of an attempt to safeguard the land rights of indigenous communities” (p. 34). The Committee, however, notes that in its 2006 Concluding Observations on South Africa the UN Committee on the Elimination of Racial Discrimination (CERD) voiced its concern about the situation of indigenous peoples in South Africa and recommended that the Government take special measures in that regard (CERD/C/ZAF/CO/3, paragraph 19). The Committee recalls that Article 5(2) of the Convention contemplates the adoption of special measures to meet the particular requirements of persons who are generally recognized as requiring special protection, such as indigenous peoples. The Committee would therefore appreciate being informed by the Government on the special measures taken or envisaged to address the discrimination historically suffered by indigenous peoples in employment and occupation. It also asks the Government to provide copies of the study on indigenous peoples’ rights undertaken by the South African Human Rights Commission and to supply information on whether the official policy on recognizing vulnerable indigenous communities has been adopted. Should this be the case, please provide a copy of this policy.

12. Part IV of the report form. Enforcement. The Committee notes the extensive information on judicial decisions concerning discrimination in employment and occupation provided by the Government. Nevertheless, the Committee observes that according to the 2006 CERD general observations on South Africa there exist major difficulties in access to justice, especially for members of the most disadvantaged groups, including indigenous peoples, and those unfamiliar with English or Africaans (CERD/C/ZAF/CO/3, paragraph 24). The Committee invites the Government to continue to provide information on relevant court rulings. Noting the difficulties faced by some groups in accessing  justice, the Committee asks the Government to provide information on any measures taken or envisaged to address this problem.

13. Part V of the report form. Practical application. The Committee notes that the National Policy Framework on Women Empowerment and Gender Equality has now institutionalized gender mainstreaming. It also notes the general description of the tasks to be performed by the Commission on Gender Equality, the Office on the Status of Women, and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, included in the Government’s report. The Committee would appreciate receiving information on the practical activities carried out by these bodies and the impact of the National Policy Framework on Women Empowerment and Gender Equality.

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

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.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information contained in the Government’s first and second reports. It notes with interest the numerous legislative initiatives taken by the Government relevant to the application of the principle of non discrimination, particularly the enactment of the 1996 Constitution, the Labour Relations Act (No. 66 of 1995), the Employment Equity Act (No. 55 of 1998), the Skills Development Act (No. 97 of 1998) and, most recently, the Promotion of Equality and Prevention of Unfair Discrimination Act (No. 4 of 2000).

1. The Committee notes that the Constitution, the Labour Relations Act and the Employment Equity Act prohibit direct and indirect discrimination on the grounds covered by Article 1(1)(a) of the Convention. Noting that Article 1(1)(b) of the Convention provides for additional grounds of discrimination, the Committee requests the Government to indicate whether the additional grounds set forth in the Constitution, the Employment Equity Act, 1998, and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (pregnancy, marital status, sexual orientation, age, disability, culture, language), are to be covered under this Article of the Convention.

2. The Committee notes that the Labour Relations Act established the Commission for Conciliation, Mediation and Arbitration (CCMA), which has a tripartite structure, to resolve disputes arising out of the application of the Labour Relations Act and the Employment Equity Act. It notes that the CCMA’s caseload consists primarily of cases involving allegations of unfair dismissals (85 per cent of all disputes referred to the CCMA in the first quarter of 2000 were unfair dismissals, compared to 80 per cent during the same period in 1999). The Committee would appreciate receiving information on the nature of the unfair dismissal cases handled by the CCMA, indicating the grounds of discrimination alleged and the action taken.

3. The Committee notes that section 34 of the Employment Equity Act established the Commission for Employment Equity, while section 32 of the Promotion of Equality and Prevention of Unfair Discrimination Act created the Equality Review Committee. The Committee would be grateful if the Government would supply information in its next report on the activities of these two bodies relevant to the application of the national non-discrimination and equality policy.

4. In respect of access to occupational guidance and vocational training, the Committee notes with interest that section 2(1)(e) of the Skills Development Act expressly provides that one of its objectives is "to improve the employment prospects of persons previously disadvantaged by unfair discrimination and to redress those disadvantages through training and education". According to section 23(2) of the Skills Development Act, the Director-General of the Department of Labour is required to establish labour centres in the department whose functions include assisting "prescribed categories of persons" to enter special education and training programmes, to find employment, to start income-generating projects, and to participate in special employment programmes (section 23(d)(i) to (iv)). The Committee requests the Government to supply information in its next report on the measures taken by the National Skills Authority and the SETAs to implement section 2(1)(e) of the Skills Development Act and promote equality of opportunity and treatment in respect of the vocational training, occupational guidance and placement services offered by the Government, including information on the affirmative action programmes undertaken. The Government is also requested to provide information on the establishment, structures and activities of the labour centres relevant to application of section 23(d)(i) to (iv) of the Skills Development Act.

5. The Committee notes with interest the establishment of the South African Human Rights Commission, the South African Commission for Gender Equality and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, and takes particular note of the constitutional mandate given to these commissions. The Committee would be grateful if the Government would provide detailed information in its next report on the activities of these commissions relevant to the application of the Convention, including any promotional, advocacy and enforcement functions carried out by those bodies.

6. In respect of the situation of women in South Africa, the Committee notes with interest the establishment of the Office on the Empowerment of Women and the Office on the Status of Women, as well as the gender desks established within national departments and at the provincial level. It would appreciate receiving information in the Government’s next report on the structure, powers, functions and activities of these offices and of the gender desks relevant to the application of the Convention.

7. The Committee notes the decision rendered by the labour appeals court in Cape Town on 3 April 2000 in Whitehead v. Woolworths (Pty) Ltd. (Case No. 6/99), holding that an employer may refuse to appoint a pregnant woman to a position due to her pregnancy. The Committee requests the Government to keep it informed with regard to the final outcome of the case and to indicate the measures taken or envisaged by the Government to protect women from the practice of discrimination in employment and occupation on the basis of pregnancy in the light of this decision.

8. With regard to the application of Article 3(a) of the Convention, the Committee requests the Government to supply information in its next report on NEDLAC’s activities in implementing South Africa’s non-discrimination policy.

9. The Committee would be grateful if the Government would supply information 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 Act. The Government is also asked to indicate the measures taken or envisaged to publicize its non discrimination policy as called for in section 25 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000.

10. Article 4. The Committee requests 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.

11. Article 5. 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 blacks, women and disabled persons, as well as information, including statistical data, on the progress achieved to date in this regard.