Violence and Harassment Convention, 2019 (No. 190) - South Africa (Ratification: 2021)

Direct Request (CEACR) - adopted 2024, published 113rd ILC session (2025)

The Committee notes the Government’s first report.

The Committee also notes the observations of the International Transport Workers’ Federation (ITF) and National Union of Metalworkers of South Africa (NUMSA) as well as the observations of the Congress of South African Trade Unions (COSATU), communicated with the Government’s report.

Articles 1, 4(2) and 7 of the Convention. Definition and prohibition of violence and harassment in the world of work. The Committee notes that the Government refers in its report to several legislative provisions defining or prohibiting violence and harassment. It indicates that: (1) harassment may be addressed through the Labour Relations Act, 66 of 1995 (LRA), as it may amount to an “unfair labour practice” (if related to promotion, demotion, probation, training or the provision of benefits) or to “unfair dismissal” (if based on discrimination grounds), both of whom employees have the right no to be subjected to (sections 185 and 186 LRA); (2) the Employment Equity Act 55 of 1998 (EEA) prohibits, as a form of “unfair discrimination”, harassment based on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth, as well as family responsibilities, HIV status and political opinion (section 6); and (3) that, while the EEA does not define “harassment”, a definition is provided for in the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace of 2022 (COGP), adopted under section 54 of the EEA, which defines “harassment” as “unwanted conduct which impairs dignity, which creates a hostile or intimidating work environment for one or more employees, or is calculated to or has the effect of inducing submission by actual or threatened adverse consequences, and which is related to one or more prohibited grounds of discrimination”. The COGP also states that harassment includes violence, physical abuse, psychological abuse, emotional abuse, sexual abuse, gender-based abuse and racial abuse, and provides detailed guidance and examples to determine the phenomenon. The Government also refers to the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 (PEPUDA), which addresses unfair discrimination in several spheres of life, defines and prohibits “harassment” based on the same grounds foreseen as EEA (except family responsibilities, HIV status and political opinion), defining it as unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences, and includes racial and gender-based violence (sections 7 and 8). The Government also indicates that the Protection from Harassment Act, 17 of 2011, defines “harassment” for the purposes of emitting harassment protection orders. The Committee notes the observations submitted by ITF, NUMSA and COSATU, where these organizations indicate that there are several shortcomings in the mentioned definitions, including that: (1) since the COGP is issued under the EEA, it covers only harassment based on grounds of discrimination and, therefore, it does not ensure the full implementation of the Convention; (2) COSATU also underlines that the concepts of “violence” and “gender-based violence” are subsumed under the concept of “harassment” in the COGP, but remain unaddressed in laws or regulations. Welcoming the measures adopted, the Committee notes that harassment not based on discriminatory grounds seems to be only defined in the Protection Against Harassment Act, which seems limited to the issuance of harassment protection orders. The Committee welcomes the information provided by the Government on the legal provisions that define and prohibit violence and harassment. The Committee asks the Government to provide information on any other provisions in national law and practice that define or prohibit forms of violence and harassment that are not based on discriminatory grounds.

Articles 2 and 3. Scope. The Government indicates that all persons listed in Article 2 of the Convention are protected against harassment and violence in the world of work through different laws and regulations, and that all situations foreseen in Article 3 of the Convention are covered by relevant legislation, which does not contain any particular restriction in this regard. In this regard, the Committee notes in particular that: (1) the EEA addresses harassment committed against “employees” (sections 1 and 6); (2) the related COGP applies to all employers and employees in the formal or informal sector, extends the notion of “employee” to job applicants and volunteers, and acknowledges that employers, managers, jobseekers and persons in training, among others, may be victims and perpetrators of harassment (paragraph 2); and (3) PEPUDA applies to any person to whom and to the extent to which EEA does not apply (section 5). In this respect, the Committee notes that, in their observations: (1) the ITF and COSATU point that the EEA does not cover persons who are not “employees” within the terms of the LRA, such as misclassified workers in disguised employment, independent contractors or individuals exercising the authority of an employer; (2) COSATU highlights that the COGP, being adopted under the EEA, is necessarily limited by such legislative framework, even if it addresses persons that are not covered in its primary statute; and (3) COSATU also stresses that the application of PEPUDA in cases not covered by labour legislation is insufficient, as PEPUDA does not contain specific provisions on obligations for employers to take reasonable steps to prevent workplace violence and harassment and, therefore, it is not sufficient to address the rights of workers in the informal economy. The Committee also notes that the COGP provides an exemplificative list of situations covered that reproduces to a certain extent Article 3 of the Convention, including specific references to breastfeeding and medical facilities, as well as private residences where domestic and health care workers provide their work, and the place where employees telework from. The Committee asks the Government to clarify what persons among those listed in Article 2 of the Convention are protected against violence and harassment under the EEA, and how the extended scope foreseen in the COGP is applicable vis-à-vis the provisions of the EEA. The Committee requests the Government to provide, if possible, examples of application of the EEA and PEPUDA to cases of violence and harassment that occurred in the contexts listed in Article 3(a) to (f).

Article 4(2). Inclusive, integrated and gender-responsive approach. The Committee notes the information provided by the Government that: (1) social partners participated in the development of the COGP through the National Economic Development and Labour Council (NEDLAC), and play a critical role to ensure its effective implementation. The Committee notes COSATU’s observation that: (1) harassment is mainly addressed from the discrimination standpoint and, while the Government has deepened its “non-discrimination” norms in response to the Convention, it has not adapted its labour and health and safety legislation; (2) violence and harassment involving third parties is not sufficiently addressed by the legislative framework, as PEPUDA is not sufficiently specific to address work-related situations. The Committee requests the Government to provide information on the steps taken, in consultation with representative employers’ and workers’ organizations, to identify any further measures necessary to promote an inclusive and integrated approach in the implementation of the Convention that takes into account violence and harassment involving third parties and that addresses all forms of violence and harassment, including those that are not based on discrimination grounds.

Articles 4(3), 8 and 9. Complementary roles and responsibilities of Governments, workers and employers. Commuting to and from work. The Committee takes note of the observations presented by ITF and NUMSA highlighting the need for safe means of transport to and from work, especially for women. The organisations highlight that public transportation is the third most likely place where reported cases of rape occurred. COSATU further underlines that the issue of violence and harassment during commutes is critically important for women workers and that, while the Government bears the primary obligation to ensure safe public transportation, employers may also adopt measures within their degree of control. It also emphasizes the need to strengthen the programmes and campaigns that enable workers and companies to work in collaboration to develop strategies that allow for sustainable urban transport system and a functional and safe transport network that is affordable and safe for users, especially women workers. The Committee particularly notes that, in their observations, the ITF and NUMSA point that the COGP applies to commuting to work only where transport is provided or controlled by the employer and that, according to paragraph 7 of the COGP, PEPUDA will apply where “harassment occurs within the world of work but outside the control of the employer, for an example while an employee is commuting on public transport”. In this regard, COSATU points that there are measures that are under the employer’s degree of control and can mitigate risks of violence and harassment during commuting (for example, measures in the arrangement of shifts so that workers can travel together, during daylight or when public spaces are less desolate; or subsidizing travel in taxis when workers are required to leave late or arrive early). ITF and NUMASA further refer to the campaign “Get Me Home Safely”, which call for the extension of employers’ duty of care to embed measures regarding safe transport home and call on employers to adopt risk assessments that include individuals’ journey times and potential hazards once they have left the workplace. The Committee asks the Government to provide information on any measures taken to adopt coordinated action between the Government, workers and employers and their organizations, to promote safe commuting to and from work and mitigate the risk of violence and harassment in these situations. The Committee asks the Government to clarify whether any provisions regarding occupational safety and health allow for the coverage of commuting where it is not provided by the employer.

Article 6. Equality and non-discrimination. The Committee notes the information provided by the Government on the legislative framework regarding equality and non-discrimination. The Committee further notes that paragraph 4.3 of the COGP recognizes that harassment particularly affects employees in vulnerable employment who, while covered by labour legislation, may have in practice poor access to the exercise of labour rights such as freedom of association, collective bargaining, decent work, protection from discriminatory practices and access to dispute resolution forums, and that the intersection of factors such as race, religion, gender or disability increases the risk of harassment. The Committee further notes that the UN Committee on Elimination of Racial Discrimination (CERD), observing that black South Africans and migrant workers are overrepresented among farmworkers and domestic workers, expressed concern about reports that such workers are subjected to racist and dehumanizing treatment, as well as concern about reports of physical and sexual abuse of migrant and black South African women domestic workers (CERD/C/ZAF/CO/9-11, 27 December 2023, paragraph 22). The Committee asks the Government to provide information on the measures taken to promote equality and non-discrimination of these groups, with a view to protect them from violence and harassment in the world of work.

Article 8(a) and (c). Informal economy workers. Role of public authorities. The Committee notes the Government’s indication that the EEA and the COGP are applicable to all employers and employees in all economic sectors, including those in the informal economy. The Committee further notes that section 26 of PEPUDA establishes the duty of any person exercising public power to promote equality by adopting appropriate measures for the effective promotion of equality in the spheres of their operation. The Committee notes COSATU’s observations that since workers in the informal economy are not considered “employees”, they are not protected under the EEA and the COGP and, that the provisions contained in PEPUDA are not specific enough to address the rights of workers in the informal economy. The Committee requests the Government to provide information on any measures aimed at raising the awareness of and training public servants to prevent, identify and deal with cases of violence and harassment against workers in the informal economy (for instance, trainings addressed to law-enforcement authorities to avoid engaging in violence and harassment against informal economy workers).

Article 8(b) and (c). Sectors or occupations and work arrangements more exposed to violence and harassment. The Government informs that paragraph 7.5.2 of COGP identifies a number of sectors with a significant risk of harassment (hospitality, security, policing or criminal justice operations, frontline and first responder emergency services and situations where money or prescription drugs are handled). The Committee notes COSATU’s observation that: (1) domestic work, home work and remote work, while are explicitly covered by the COGP, are not identified as high-risk sectors; and (2) the COGP does not make provisions for the identification of sectors, occupations and work arrangements in consultation with the employers’ and workers’ organizations. In addition, the Committee notes the observations by ITF and NUMSA highlighting that the transport sector is not referred to in the COGP but should be recognized as public-facing sector at high risk of violence and harassment. They also stress that transport workers who are mobile must have access to dignified sanitary facilities that are safe from violence and harassment, including gender-based harassment. The Committee requests the Government to provide information on: (i) the specific measures taken in the sectors identified in the COGP for the prevention and protection against harassment; and (ii) any initiative undertaken in collaboration with social partners to identify other sectors, occupations and work arrangements that may be at higher risk of violence and harassment, such as the transport and domestic work sectors, and the prevention and protection measures adopted accordingly.

Article 9. Responsibilities of employers. The Committee notes the Government’s indications that: (1) the EEA requires employers to take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice (section 5) and to take the necessary steps to eliminate conducts in breach of the EEA, in consultation with all relevant parties (section 60); (2) according to the COGP, this includes employers’ obligation to take proactive and remedial steps to prevent all forms of harassment in the workplace (paragraph 8.1); and (3) employers have an obligation under the Occupational Health and Safety Act, 1993 (OHSA) to protect employees against any harassment which would endanger their the health or safety and to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of the employees.

Article 9(a). Workplace policy. The Committee notes that the EEA requires certain employers - including, among others, employers with 50 employees or more - to prepare and implement an employment equity plan in consultation with employees (sections 20 and 16). The COGP further recommends that, in determining whether any employer has complied with its duties under section 60 of the EEA, the adoption of a “harassment policy” should be taken into consideration, and that such policy should include specific elements such as a statement of no tolerance, that grievances will be investigated and handled in a confidential manner, and the right to follow the complaints procedures of the policy, and the recognition of victimization or retaliation as an offence. The Committee notes COSATU’s observations that the formulation of the harassment policy should require the participation of workers and their representatives. The Committee requests the Government to provide information on the measures taken to ensure that workplace policies that address violence and harassment foreseen in the EEA and the COGP are adopted with the participation of workers and their representatives. The Committee also asks the Government to provide, if available, examples of harassment policies or employment equity plans that address violence and harassment that may have been adopted pursuant to sections 20 and 60 of the EEA.

Article 9(b) and (c). Occupational safety and health management, including in relation to hazards and risks of violence and harassment. The Committee notes that the Government refers to section 8 of OHSA, which requires every employer to take “such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees”, and “establish, as far as is reasonably practicable, what hazards to the health or safety of persons are attached to any work which is performed and establish what precautionary measures should be taken with respect to such work”. The Committee also notes that the COGP, which addresses discrimination-based harassment: (1) indicates, in relation to OSHA, that where “an employee’s duties are of such a nature that they are exposed to a significant risk of violence while at work, the employer must take such steps as may be reasonably practicable to eliminate or mitigate this hazard”, it identifies contact with the public as a situation involving a significant risk of harassment, and includes the adoption of measures to prevent violence and harassment coming from or committed towards third parties such as customers, suppliers and clients (paragraphs 7.5 and 8.2); and (2) also provides that employers’ obligation under section 60 of the EEA includes the assessment of the risk of violence that employees are exposed to (paragraph 8.1). The Committee notes COSATU’s observations that there are no provisions requiring that the identification of hazards and the assessment of risks of violence and harassment is undertaken with the participation of workers and their representatives. COSATU also underscores that there is a need to explicitly address violence and harassment risks in OSHA. The Committee asks the Government to indicate the measures taken to: (i) ensure that workers and their representatives participate in the identification of hazards and assessment of risks of violence and harassment; (ii) ensure that employers’ obligations regarding the management of occupational safety and health and the assessment of risks apply to all forms of violence and harassment, including those that are not based on grounds of discrimination.

Article 9(d) Information and training. The Committee notes the Government’s reference to the COGP, which refers to the provision, by employers, of information and training on policies and measures against harassment (paragraphs 8.2, 9.2, and 9.3). It also notes that, the OSHA establishes employers’ obligations to: (1) provide such information, instructions, training and supervision as may be necessary to ensure, as far as is reasonably practicable, the health and safety at work of their employees, (section 8); and (2) as far as reasonably practicable, make every employee conversant with the hazards to his health and safety attached to any work which he has to perform, as well as with the precautionary measures which should be taken and observed· with respect to those hazards (section 13). The Committee requests the Government to provide information on the application of sections 8 and 13 of OSHA regarding measures to prevent violence and harassment, in accessible formats as appropriate.

Article 10(a) and (h). Monitoring and enforcement. The Committee notes the Government’s indication that various bodies are competent to monitor the application of the relevant legislation regarding violence and harassment, including the Labour Courts, the Equality Courts, the Commission for Conciliation, Mediation and Arbitration (CCMA), the Commission for Employment Equity, the Commission for Gender Equality, and the South African Human Rights Commission (SAHRC). The Committee also notes the Government’s indication that labour inspectors: (1) can treat matters of violence and harassment when addressing OSH requirements under OSHA; (2) play a critical role in awareness raising, advocacy campaigns and education programs on the prevention and elimination of all types of harassment in the workplace. The Committee further notes that, according to section 30 of OSHA, labour inspectors can stop or prohibit an act if it is considered to threaten the health and safety of any person, close part of the workplace, and direct the employer to take such steps as are specified for health and safety. In this regard, the Committee notes that COSATU highlights the need for adequate training of inspectors to ensure that they can identify risks and hazards, including those connected to discrimination. The Committee requests the Government to provide information on: (i) any training, guidance, resources, or other tools on violence and harassment in the world of work provided to the labour inspectorate; and (ii) the number of cases concerning violence and harassment in the world of work dealt with by the labour inspectorate and the other competent authorities, as well as the sanctions imposed and remedies granted.

Article 10(b) and (e). Easy access to safe, fair and effective reporting and dispute resolution mechanisms and procedures. The Committee notes the Government’s indications that: (1) external mechanisms for mediation and arbitration are available to settle disputes concerning harassment as a form of unfair labour practice or unfair dismissal under the LRA or unfair discrimination under the EEA, including the CCMA; (2) Labour Courts are competent to address cases concerning the LRA, EEA and OSHA, and Equality Courts concerning PEPUDA; (3) harassment protection orders, including interim protection orders, can be issued by criminal courts as foreseen in the Protection from Harassment Act; (4) retaliation is prohibited against employees who disclose information concerning occupational safety and health measures (section 26 OSHA), who disclose unlawful or irregular conduct by the employer or other employees (section 2 of the Protected Disclosures Act, 26/2000), or who lodge a harassment grievance or follow a harassment procedure (paragraph 9.4.6 and 10.6.1.4 COGP); (5) the EEA provides for the shift of the burden of proof for cases of unfair discrimination (section 11 EEA); and (6) the COGP recommends that various support services be available, including counselling, treatment and care, and offers guidelines concerning the provision of additional paid sick leave in case of serious harassment (paragraphs 10 and 12). Concerning procedures internal to the workplace, the Committee notes that the EEA requires that allegations of harassment committed by employees be brought to the attention of the employer (section 60(1)) and that the COGP recommends employers to outline, in their policies, informal and formal procedures for the resolution of harassment cases in a gender-sensitive, confidential, efficient and effective manner (paragraphs 9 and 10). The Committee notes that, in its observations, COSATU refers to a number of concerns, including that: (1) the procedural guidelines set out in the COGP are limited to discrimination-based harassment, and are not adapted to less formal workplaces, such as private homes; (2) judicial procedures and protection against reprisals through CCMA and the Labour Courts are restricted to the employment context, and as such do not extend to the wider world of work; (3) the requirement in the COGP that a complaint be made in “good faith” could serve as a barrier to reporting and be used as a tool for retaliation, as it is unclear who will determine whether a complaint is made in good faith. The Committee notes that, according to reports of the Commission for Gender Equality and the SAHRC, point to dynamics of lack of reporting of sexual offences and low uptake of Equality Courts due to lack of trust in the judicial system. The Committee asks the Government to provide information on: (i) any measures adopted to guarantee that complaint and investigation mechanisms are safe and of easy access, including through any measures taken to raise awareness about the mechanisms available; and (ii) if available, the number of protection measures issued under theProtection from Harassment Act that concern cases of harassment in the world of work.

Easy access to appropriate and effective remedies. The Committee notes the Government’s indication that the CCMA and the Labour Courts can order the payment of compensation, including damages, and can also direct the employer to take steps to prevent the recurrence of a similar case to other employees. In this regard, it also notes from the Labour Court judgements provided by the Government, that the remedies granted mainly encompassed compensation and a written apology. The Committee requests the Government to continue to provide examples, if available, of remedies accorded in cases of violence and harassment in the world of work.

Article 10(c). Protection of privacy and confidentiality. The Committee notes the Government’s reference to the provisions on confidentiality included in the COGP, which: (1) establishes the confidentiality of all the persons involved in a harassment case; and (2) provides that confidentiality requirements do not preclude an employer from taking appropriate steps to protect the safety and dignity of employees, and that employers are required to disclose the information to the parties to prepare for any proceedings. The Committee notes that these provisions mainly concern the internal procedures to the workplace. The Committee requests the Government to provide information on the measures taken to protect the privacy of those individuals involved and confidentiality, to the extent possible and as appropriate, in cases of violence and harassment addressed in mechanisms and procedures external to the workplace (such as in dispute settlement and judicial procedures).

Article 10(d). Sanctions. The Committee takes note of the Government’s indication that: (1) sanctions for unfair discrimination are determined by the CCMA and the Labour Courts on a case-by-case basis, and may include fines and an order directing the employer to take steps to prevent similar cases occurring in the future; (2) the COGP provides that employers’ workplace policies should include disciplinary sanctions for cases of harassment, proportionate to the seriousness of the act, and can include warnings, dismissal, workplace transfers, and any other sanctions that may be established in civil and criminal procedures. The Committee requests the Government to provide information, if available, on examples of sanctions that have been imposed in administrative or judicial decisions for cases of violence and harassment in the world of work.

Article 10(f). Domestic violence. The Committee notes that the Government refers to the Domestic Violence Act 116 of 1998, which: (1) when defining the concept of “domestic violence”, specifically includes the entry into the complainant’s workplace without their consent where the parties do not share the same workplace and unreasonable loitering outside of or near the place where the complainant works or carries on business; (2) foresees that protection orders issued by courts prohibit the respondent from entering the complainant’s workplace (sections 1(1) and 7(1)). The Committee asks the Government to provide information on any other measures adopted to recognize the effects of domestic violence and, so far as is reasonably practicable, mitigate its impact in the world of work (such as, for instance, leave, flexible work arrangements or protection against dismissal for victims of domestic violence, awareness-raising on the effects of domestic violence in the world of work, the inclusion of domestic violence in risk assessments, or a referral system to public measures).

Article 10(g). Right to remove oneself from a work situation and the duty to inform management. The Committee notes the Government’s indication that under OHSA employees have a right to remove themselves from a work situation which they have reasonable justification to believe presents an imminent and serious danger to life, health or safety due to violence or harassment. The Committee refers to its comments under the Occupational Safety and Health Convention, 1981 (No. 155), where it noted that section 26 of OSHA prohibits any form of victimization against workers who take actions pursuant to the OSHA, but that it does not contain the right of workers to remove themselves in a situation of imminent danger. The Committee requests the Government to provide further information on the measures taken to ensure that workers have the right to remove themselves from a work situation which they have reasonable justification to believe presents an imminent and serious danger to life, health or safety due to violence or harassment, without suffering retaliation or other undue consequences, and the duty to inform management.

Article 11(a). Addressing violence and harassment in relevant policies. The Committee notes the Government’s reference to the National Strategic Plan on Gender-Based Violence and Femicide for the period 2020–2030, which includes actions aimed at creating safe workplaces that are free of violence against women and LGBTQIA+ persons, including but not limited to sexual harassment (outcome 5.2). The Committee also takes note of the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance, which includes among prioritised groups farm workers and farm dwellers and domestic workers; and the National Intervention Strategy for Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Sector, which is aimed to address gender and sexual orientation-based violence against LGBTI persons. The Committee requests the Government to provide information on the measures specifically directed at addressing violence and harassment in the world of work that have been adopted under the National Plans mentioned above, and the results achieved.

Article 11(b) and (c). Guidance and training tools and awareness-raising campaigns. The Committee notes that the Government informs about the national Employment Equity Awareness workshop - conducted throughout the country by the Commission for Employment Equity jointly with the CCMA and together with the Department of Employment and Labour - which focused on promoting the COGP and sharing information on the harassment cases handled by the CCMA and the Labour Courts among employers and workers and their organizations, labour relations officers, human resources practitioners and academics. The Committee also notes that: (1) according to the LRA, the CCMA may provide employees, employers, registered trade unions and employers' organisations, federations of trade unions, federations of employers' organisations or councils, with advice or training related to the prevention of sexual harassment in the workplace; and (2) the COGP recommends that employers and trade unions include harassment matters in their education and training programmes in an accessible format and implement awareness-raising measures for employees, and that the CCMA, the Bargaining Council Commissioners and Labour Court judges receive specialized training. The Committee requests the Government to: (i) continue to provide information on guidelines, training tools and awareness-raising campaigns carried out on violence and harassment in the world of work; (ii) indicate if they are provided in accessible formats, where appropriate. The Committee also asks the Government whether it has considered to elaborate guidance materials that would compile the main legal rules applicable to cases of violence and harassment in the world of work.