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.

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

Articles 1 and 2 of the Convention. Gender wage gap and income differential statements. The Committee notes the Government’s indication, in its report, that the EEA4 Form used by employers to provide information on incomes (Income Differentials Statement) was revised in August 2019 to assist in the collection of quality data required by both: (1) the National Minimum Wage Commission (NMWC) – in order to assess the pay gap between the highest paid and lowest paid workers in the country and establish sector norms and benchmarks to reduce the gap; and (2) the Commission for Employment Equity (CEE) – to monitor the implementation of the principle of equal pay for work of equal value. The Committee notes that, in the observations they submitted on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the workers’ organizations within NEDLAC recognize that the legislated minimum wage was a step in the right direction but call for further mechanisms to be developed in order to address the pay gaps across race, gender and between the highest and lowest paid workers. The Committee notes the absence of information on the activities undertaken by the Government to promote the use, among employers, of the Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value; as well as on concrete cases in which disparities have been addressed by employers. The Committee notes that, according to the ILO Global Wage Report 2018/19 , the gender pay gap for South Africa was estimated, at 19.4 (mean gender pay gap using hourly wages). It also notes that the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW), in its concluding observations, expressed concerns at the limited enforcement of the principle of equal pay for work of equal value and the persistent gender pay gap in the country. It recommended to the Government to conclude, without delay, the ongoing review of wages and to effectively enforce the above-mentioned principle in order to narrow and close the gender pay gap by conducting regular labour inspections, applying gender-neutral analytical job classification and evaluation methods, and conducting regular pay surveys (CEDAW/C/ZAF/CO/5, 23 November 2021, paragraphs 47-48). The Committee requests the Government to provide statistical information, disaggregated by sex, on the remuneration of men and women in both the public and private sectors as well as information on the analysis of the existing income differentials following the statements submitted by employers. Please also provide information on the concrete measures adopted in order to address the existing gender remuneration gap.

Horizontal and vertical occupational segregation. The Committee notes, from the information and statistical data contained in the annual report 2021-2022 of the Commission for Employment Equity, that the horizontal occupational gender segregation pointed out by the Committee in its previous direct request remains prevalent (with women typically being overrepresented in Education, Human health and social work activities, and Financial and insurance activities; whereas men are predominantly working in Agriculture, forestry and fishing; Mining and quarrying; Construction; and Electricity, gas, steam and air conditioning supply). The CEE report also shows evidence of vertical gender segregation, with women occupying only 25.8 and 36.4 per cent of top and senior management positions respectively, whereas for other categories (professionally qualified, skilled, semi-skilled and unskilled levels) they represent between 43.2 and 48.7 per cent of the workforce. In relation to its previous comment on access to vocational training, the Committee refers to the direct request it addresses to the Government concerning the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). The Committee requests the Government to provide information on the measures taken to address horizontal and vertical occupational gender segregation in employment and occupation, including through education and vocational training and other measures adopted in the framework of theNational Skills Development Plan (2030), and the concrete impact of these measures on the inclusion of women in better paid jobs, on their career advancement and on the reduction of the gender wage gap. Please provide statistical information of women employment in all sectors and levels of occupation.

Article 1. Equal remuneration for work of equal value. The Committee notes the Government’s indication that the principle of equal remuneration for work of equal value is implemented through section 6 of the Employment Equity Act of 1998 (EEA, as amended) read together with clauses 2 to 7 of the Employment Equity Regulations 2014, and that a Code of Good Practice on equal pay/remuneration for work of equal value was adopted in 2015. The Committee requests the Government to provide information on the practical application of the EEA as amended in 2022, the Employment Equity Regulations, 2014, and the Code of good practice on equal pay/remuneration for work of equal value. Please provide specific information on the concrete impact of these legislative measures in the application of equal remuneration between men and women for work of equal value and the obstacles and difficulties encountered.

Scope of comparison. The Committee notes that section 6(4) of the Employment Equity Act of 1998 (EEA), as amended, provides for the principle of equal remuneration for work of equal value but limits the scope of comparison to jobs performed for the same employer. In this regard, the Committee recalls that the application of the principle of equal remuneration for men and women for work of equal value should not be limited to comparisons between men and women in the same establishment, enterprise or sector and that the Convention allows for a much broader comparison to be made between different employers or sectors. Where women are heavily concentrated in certain sectors of activities or occupations, there is a risk that the possibilities for comparison may be insufficient at the level of the establishment (see 2012 General Survey on the fundamental Conventions, paragraphs 697–698). The Committee requests the Government to provide information on how it is ensured that wages in sectors predominantly employing women are not set on the basis of gender-biased undervaluation of the work performed in these sectors, and invites the Government to give consideration to widening the scope of comparison of jobs performed by men and women beyond the same employer and to provide information on any developments in this regard.

Article 2(2)(b). Minimum wages. The Committee notes the Government’s indication that sections 5 to 7 of the Employment Equity Regulations provide implementation guidelines to employers, workers and their respective organizations on the methodology to be followed in determining rates of pay/remuneration, and that paragraphs 4 to 6 of the Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value 2015 provides example of best practices on how to eliminate unfair discrimination in pay/remuneration and benefit structures or packages. The Committee recalls that, taking into account the persisting occupational segregation in the country, particular attention should be given when setting sectoral minimum wages to ensure that the rates fixed are free from gender bias, as there may be a tendency to set lower wage rates for sectors predominantly employing women. The Committee requests the Government to provide concrete information on how it is ensured that sectoral minimum wages are set free from gender bias.

Article 2(2)(c). Collective agreements.The Committee requests the Government to indicate the measures taken to promote the inclusion of the principle of equal remuneration for men and women for work of equal value in collective agreements, and to forward a copy of any collective agreement that provides for the principle in its text.

Enforcement and practical information. The Committee notes the information provided by the Government on equal pay cases adjudicated by the Commission for Conciliation, Mediation and Arbitration (CCMA) or the Labour Courts. It also notes that, according to the 2021-2022 report of the Commission for Employment Equity, there were 8 referrals to the CCMA of cases of alleged violation of the principle of equal pay for work of equal value based on the ground of sex or gender in the period from 1 April 2021 to 31 January 2022. The Committee requests the Government to continue to provide details of any judicial or administrative decisions related to the application of the principle of equal remuneration for men and women for work of equal value, including the outcome of the cases, sanctions imposed and remedies granted. It also requests information on any action taken by the Department of Labour when reviewing employment equity reports by employers, and on any other measure or activity carried out by the Department of Labour or the Commission on Gender Equality in order to ensure the practical application of equal remuneration for men and women for work of equal value.

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.

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

Gender wage gap and income differential statements. In its previous comments, the Committee requested the Government to provide information on the measures taken to reduce the gender wage gap and to supply statistical data on earnings disaggregated by sex. The Committee also requested the Government to provide information on income differentials between men and women revealed by the income differential statements submitted by employers to the Employment Conditions Commission. The Committee notes that the Government indicated in its report that the relevant form (EEA4) that employers had to fill in with information related to income had been recently amended in order to overcome certain difficulties with the collection and analysis of data on income disparities. According to the Government, this would enable it to provide adequate information in the future. The Government further referred to the barriers to employment equity in remuneration identified, which included non-grading of jobs and absence of job profiles, and indicates that a specific budget has been allocated to address the disparities found. The Committee hopes that the Government will soon be in a position to provide statistical information disaggregated by sex on the remuneration of men and women in both the public and private sectors as well as information on the analysis of the existing income differentials following the statements submitted by employers. Please also provide information on the concrete measures adopted in order to address the existing gender remuneration gap.

Occupational segregation. The Committee notes from the 15th Commission for Employment Equity annual report (15th CEE annual report) that in 2014 women were most represented in the community, social and personal services sector (30.7 per cent) where there is a large representation of governmental employers, followed by catering and accommodation (29.5 per cent). According to the report, black women are most represented in the electricity, gas and water supply, and community, social and personal services sectors. The Committee notes the information provided by the Government that the tripartite National Skills Authority has adopted the National Skills Development Strategy III to ensure equal access to skills by women, especially black women, in order to access better paying jobs. The Committee requests the Government to provide information on the measures taken to address occupational gender segregation in employment and occupation, including through education and vocational training and other measures adopted in the framework of the National Skills Development Strategy III, and the concrete impact of these measures on the inclusion of women in better paid jobs, on their career advancement and on the reduction of the gender wage gap. Please provide statistical information of women employment in all sectors and levels of occupation.

Article 1 of the Convention. Equal remuneration for work of equal value and scope of comparison. The Committee notes that section 6(4) of the Employment Equity Act of 1998 (EEA), as amended, provides for the principle of equal remuneration for work of equal value but limits the scope of comparison to jobs performed for the same employer. In this regard, the Committee recalls that the application of the principle of equal remuneration for men and women for work of equal value should not be limited to comparisons between men and women in the same establishment, enterprise or sector and that the Convention allows for a much broader comparison to be made between different employers or sectors. Where women are heavily concentrated in certain sectors of activities or occupations, there is a risk that the possibilities for comparison may be insufficient at the level of the establishment (see General Survey on the fundamental Conventions, 2012, paragraphs 697–698). The Committee requests the Government to provide information on how it is ensured that wages in sectors predominantly employing women are not set on the basis of gender-biased undervaluation of the work performed in these sectors, and invites the Government to give consideration to widening the scope of comparison of jobs performed by men and women beyond the same employer and to provide information on any developments in this regard.

Article 2(2)(b). Minimum wages. The Committee had requested the Government to provide information on the manner in which it was ensured that minimum wage rates were free from gender bias. The Committee notes the Government’s indication that minimum wages by sector were established irrespective of gender and that if employers failed to comply with the law, this could be enforced by the Labour Court. The Committee recalls its examination of the manner in which minimum wages were established in South Africa made in its previous report and recalls once again that there is a tendency to set lower wage rates for sectors predominantly employing women, and that, taking into account the persisting occupational segregation, particular attention should be given when setting sectoral minimum wages to ensure that the rates fixed are free from gender bias. The Committee once again requests the Government to provide concrete information on how it is ensured that when setting minimum wages by sector, these are free from gender bias.

Article 2(2)(c). Collective agreements. Noting that no information was provided in this respect, the Committee requests the Government once again to indicate the measures taken to promote the inclusion of the principle of equal remuneration for men and women for work of equal value in collective agreements, and to forward a copy of any collective agreement that provides for the principle in its text.

Article 3. Objective job evaluation. The Committee notes that according to section 6(5) of the EEA as amended “the Minister, after consultation with the Commission, may prescribe the criteria and prescribe the methodology for assessing work of equal value …”. The Committee further notes that sections 4 to 6 of the Employment Equity Regulations, 2014 (Regulations), and Titles 5 to 7 of the Code of Good Practice (Code) provide for the meaning of work of equal value, the methodology to be applied and the assessment to determine whether work is of equal value. The Committee notes that the Regulations and the Code provide for the criteria commonly used to evaluate the value of jobs which are: the responsibility demanded by the work; the skills, qualifications, effort, either physical or mental; and the working conditions. Title 6 of the Code on “Comparing and evaluating male and female dominated jobs” provides for measures to ensure that the job evaluation is carried out without gender bias. The Committee requests the Government to provide information on the practical application of these provisions, the obstacles found and the results achieved. Please provide examples of objective job evaluations carried out within the new legislative framework.

Article 4. Cooperation with social partners. Noting the information provided by the Government concerning the cooperation of the social partners in the framework of the National Economic Development Labour Commission (NEDLAC) in the elaboration of the recently adopted legislative amendments and regulations on employment equity, the Committee requests the Government to continue to provide information on the concrete measures adopted for the implementation of the principle of the Convention with the cooperation of the social partners.

Parts III and V of the report form. Enforcement and practical information. The Committee notes the Government’s indication that in cases where the Employment Equity Plans do not identify barriers and affirmative action measures to address income disparities within specific time frames, they might not be approved and the Labour Court, on the request of the Director-General, may impose a fine. The Committee requests the Government to continue to provide details of any judicial or administrative decisions related to the application of the principle of the Convention as well as any action taken by the Department of Labour when reviewing employment equity reports by employers. Please also provide information on any other measure or activity carried out by the Department of Labour or the Commission on Gender Equality in order to ensure the practical application of equal remuneration for men and women for work of equal value.

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.

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

Article 1 of the Convention. Equal remuneration for work of equal value. The Committee notes with interest that following the adoption of the Employment Equity Amendment Act of 2013 that amends the Employment Equity Act of 1998, a new paragraph was added to section 6 of the Employment Equity Act of 1998 (EEA as amended) which establishes that a difference in terms and conditions of employment between employees performing the same or substantially the same work or work of equal value is unfair discrimination. The Committee also notes with interest the adoption of the Employment Equity Regulations of 1 August 2014 and the Code of good practice on equal pay/remuneration for work of equal value of 1 June 2015 that also refer to work of equal value. The Committee also notes that the Code of practice provides for a definition of remuneration which includes “any payment in money or in kind, or both made or owing to any person in return for working for another person, including the State”. The Committee requests the Government to provide information on the practical application of the EEA as amended, the Employment Equity Regulations, 2014, and the Code of good practice on equal pay/remuneration. Please provide specific information on the concrete impact of these legislative measures in the application of equal remuneration between men and women for work of equal value and the obstacles and difficulties encountered.

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

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

Gender wage gap and occupational segregation. The Committee notes from the information provided by the Government under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), that the Commission for Gender Equality’s (CGE) study conducted in 2008 revealed a gender wage gap of 33.5 per cent. The Committee also notes from the 2010 statistics provided by the Government, that women predominate in clerical and domestic work. The CGE indicates that invisible elements continue to marginalize women, such as the institutional culture within a male-dominated environment, internal policies and practices regarding recruitment and promotion, and access to skills training, coupled with the sense that “men are taken more seriously and women have to earn their stripes”. This study also reveals that black women and women with children are particularly concerned by the gender wage gap. In order to address this issue, the Committee notes that the Government has put into place the Director-General’s Review System, which allows the Director-General to make recommendations to employers, who must include solutions in their Employment Equity Plans (EEPs) where disparities in remuneration based on gender or race are revealed (sections 43, 44, 45 of the Employment Equity Act (EEA)). The Committee asks the Government to continue to provide information on the measures taken to reduce the gender wage gap, including through addressing occupational segregation. Please also provide information on the results achieved through the Director-General’s Recommendations and EEPs. Noting that the earnings statistics provided by the Government are not disaggregated by sex, the Committee asks the Government to supply statistical data on the remuneration of men and women in both the public and private sectors, disaggregated by sector and occupation.

Income differential statements and affirmative action. The Committee notes the Government’s indication that the Employment Conditions Commission (EEC) is in the process of determining the methodology and approach to be adopted on how best to analyse the Income Differential statements (EEA4) submitted by employers during the 2009 reporting period. The Committee welcomes the Government’s intention to include in future amendments to the EEA, the possibility for small employers to report on matters such as barriers to employment equity in respect of remuneration and benefits, and affirmative action measures adopted to redress them in employment equity report forms (EEA2). The Committee reiterates its request for full information on income differentials between men and women workers revealed by the income differential statements submitted by employers and the analysis conducted by the Employment Conditions Commission. The Committee asks the Government once again to provide information on the barriers to employment equity in remuneration identified in the employers’ reports, and the affirmative action measures adopted to overcome them, including measures for small designated employers.

Article 2(2)(b) of the Convention. Minimum wages. The Committee notes the Government’s indication that minimum wages are set based on the criteria set out in the Basic Conditions of Employment Act (BCEA) which requires that the ECC, in its advice given to the Minister on sectoral minimum wage determinations, must consider, inter alia, the ability of employers to carry out their business, the employment in the sector, the cost of living and the alleviation of poverty. The Committee further notes that minimum wages are not based on an evaluation of jobs within the sector, but rather by taking into consideration the peculiar nature of the sector. The Committee notes that a minimum wage is either set at the same level for an entire sector (e.g. domestic and farm workers) or distinguishes between different job categories within a sector (e.g. private security, wholesale and retail sector and civil engineering sector). The Committee recalls that there is a tendency to set lower wage rates for sectors predominantly employing women, and due to such occupational segregation, particular attention is needed in setting sectoral minimum wages to ensure that the rates fixed are free from gender bias. The Committee, therefore, asks the Government to provide information on how it is ensured that the setting of minimum wage rates is free from gender bias, and any measures taken to promote equal remuneration for men and women for work of equal value through the ECC.

Articles 2(2)(c). Collective agreements. The Committee notes the Government’s indication that collective agreements do not include specific provisions dealing with equal remuneration for men and women for work of equal value. The Committee asks the Government to indicate any measures taken, with the cooperation of the social partners, to promote the inclusion of the principle of equal remuneration for men and women for work of equal value in collective agreements, and any results achieved.

Article 3. Objective job evaluation. The Committee notes the Government’s general statement that the job evaluation systems are fair, unbiased and free from unfair discrimination. The Committee asks the Government to provide information on the specific measures taken to ensure that job evaluation systems are fair, unbiased and free from unfair discrimination.

Article 4. Cooperation with social partners. The Committee recalls its previous comments in which it noted that the tripartite National Skills Authority was making efforts to promote women’s access to better paying jobs. The Committee also notes that cooperation with social partners takes place through dialogue with the National Economic Development Labour Council (NEDLAC) at the national level, through negotiations and consultations at various forums with the Bargaining Councils at the sectoral level and through forums at the workplace level. The Committee again asks the Government to provide information on specific measures taken by the National Skills Authority to promote women’s access to better paying jobs. The Committee also asks the Government to provide information on the specific activities carried out or measures taken by NEDLAC, the Bargaining Councils, and workplace level forums relating to the principle of equal remuneration for men and women for work of equal value.

Parts III and V of the report form. Enforcement and practical application. The Committee notes the information provided on the seven cases which were handled by the Commission for Conciliation, Mediation and Arbitration (CCMA), and notes the absence of cases dealing with the principle of equal remuneration for work of equal value. The Committee notes the 2009 Annual Report of the Commission on Gender Equality. The Committee asks the Government to provide details on any judicial or administrative decisions related to the principle of the Convention. Please also provide information on any action taken by the Department of Labour, when reviewing employment equity reports, against employers that are not complying with the provisions of the EEA that relate to wage discrimination. The Committee also reiterates its request for specific information on the practical application of section 8 of the Promotion of Equality and Prevention of Unfair Discrimination Act with respect to any proceedings instituted or any activities carried out in relation to the principle of equal remuneration for work of equal value. The Committee also asks the Government to provide information on the specific activities carried out by the Commission on Gender Equality in order to ensure the practical application of equal remuneration for work of equal value. Please also provide information on the activities carried out by the National Office of the Status of Women and the Office on the Empowerment of Women with regard to the principle of the Convention.

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 of the Convention. Equal remuneration for work of equal value. The Committee notes the Government’s indication that given that the Government, in consultation with the social partners, was in the process of reviewing the Employment Equity Act (EEA), a decision had been taken in 2009 not to include a provision covering equal pay for work of equal value in the amended EEA regulations. The Committee also notes that in the process of amending the EEA, a draft provision dealing specifically with equal pay for work of equal value has been included in Chapter 2. The Committee further notes that, while the EEA amendments are underway, equal pay for work of equal value has been implemented in the Director-General’s Review System, emanating from sections 43, 44 and 45 of the EEA, which empower the Director-General of Labour to do an in-depth assessment of compliance and make recommendations. The Committee, welcoming the Government’s intention to include the principle of equal pay for work of equal value in Chapter 2 of the EEA, hopes that the term “pay” will be defined broadly to cover all elements of remuneration, as defined in Article 1(a), and asks the Government to provide information on any developments in this regard. Please provide specific information on how the principle is included in the Director-General’s Review System, such as methods of implementation, monitoring of the Director-General’s recommendations and regarding any cases on this matter which have been referred to the Labour Court.

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

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 2009, published 99th ILC session (2010)

Article 2, paragraph 2(a), of the Convention. Application of the principle by means of legislation. In its previous direct request, the Committee asked the Government to clarify whether section 8 of the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act), prohibiting unfair discrimination on the ground of gender, encompasses the principle of equal remuneration for men and women for work of equal value. The Committee notes the Government’s indication that “the principle is covered in the spirit of the legislation as it prohibits discrimination on gender and prohibits practices that undermine the equality between men and women”. The Committee asks the Government to provide information on the practical application of section 8 of the Equality Act, including in connection with the provisions contained in Chapters IV (Equality Courts) and V (Promotion of Equality) of the Act, as it relates to the principle of equal remuneration for work of equal value.

The Committee refers to its previous comments on the application of the Employment Equity Act (EEA) and its related regulations, as well as on the scope of the employment equity report form. It notes the information provided by the Government on the aims of section 27 of the EEA. It also notes that the Employment Conditions Commission is in the process of compiling a report on income differentials on the basis of the employment equity reports submitted by the employers. The Committee further notes that the Employment Equity Regulations on Income Differentials were amended to allow for the gathering of sufficient data on remuneration at each occupational category and level, disaggregated by sex and race. The Committee notes that both large and small employers are required to submit such “income differentials statements”. However, the Committee notes that the current employment equity report form (EEA2) still exempts small employers from providing information on, among other things, barriers to employment equity in respect of remuneration and benefits and affirmative action measures adopted to address them, as section F of the report form does not apply to them. The Committee asks the Government to provide full information on income differentials between men and women workers, disaggregated by occupational category and level, based on the analysis conducted by the Employment Conditions Commission and the information contained in the income differentials statements. The Committee also asks the Government to provide information on the barriers to employment equity in remuneration identified in the employers’ reports and the affirmative action measures adopted to overcome them. Noting that similar information is not available for small employers, the Committee asks the Government to indicate the measures adopted or envisaged to ensure that such barriers are identified and addressed also in small enterprises. Please also provide examples of cases where income differentials were deemed “disproportionate” in terms of section 27(2) of the EEA and the criteria used to make this assessment.

Article 2, paragraph 2(c). Wage determination by collective agreement. The Committee recalls that once a collective agreement is concluded, its provisions become enforceable pursuant to the basic Conditions of Employment Act of 1997 and the Labour Relations Act of 1995. In the event of violation of such agreement on the part of the employer, the employee is entitled to bring a claim before the Department of Labour. Should the violation relate to an unfair labour practice, the employee can lodge a claim before the Commission for Conciliation, Mediation and Arbitration (CCMA). The Committee again asks the Government for examples of collective agreements enshrining the principle of equal remuneration for men and women for work of equal value, as well as copies of any administrative or judicial decisions or arbitration awards regarding violation of equal remuneration provisions of collective agreements.

Article 3. Objective job evaluation. With regard to its previous comments concerning job evaluations systems, the Committee notes the Government’s indication that one of the areas on which employers are required to report, in the context of the employment equity report form, is job evaluation. The Committee understands that job evaluation is covered by section F of the report form, which only applies to large enterprises. The Committee recalls that section 12.3 of the Code of Good Practice on the Integration of Employment Equity into Human Resources Policies and Practices spells out that remuneration should be based on the value of the post. Stressing once again the importance of adopting job evaluation systems, based on objective criteria free from gender bias for the purpose of ensuring equal remuneration for work of equal value, the Committee asks the Government to indicate the measures taken or envisaged to ensure that the job evaluation systems used by employers in connection with the employment equity report obligations do not undervalue jobs predominantly performed by women and contribute effectively to fostering equal remuneration for men and women for work of equal value. The Committee also asks the Government to provide information on any measures adopted or envisaged to promote the use of objective job evaluation systems among small employers. Please also indicate how the need for objective job evaluation is taken into account with regard to sectoral determinations setting minimum wages, including by the Employment Conditions Commissions when advising the Minister of Labour on sectoral determinations.

Article 4. Cooperation with social partners. The Committee notes from the Government’s report that the tripartite National Skills Authority is making efforts to promote women’s access to better paying jobs. It also notes that the CCMA, also a tripartite body, has addressed various disputes concerning unfair discrimination based on unequal remuneration for work of equal value. The Committee would appreciate receiving information on the measures taken by the National Skills Authority to foster women’s access to better paying jobs and on the number and outcomes of any relevant disputes brought before the CCMA. Please also provide information on any activities relevant to the promotion of the principle of the Convention carried out by the Labour Market Chamber, the Employment Conditions Commission and the Bargaining Councils.

Part III of the report form. Enforcement. The Committee notes the Government’s indication that it is unable to provide information on the activities of the labour inspectorate relevant to the application of the Convention as the inspection system currently in place does not allow the collecting of information directly related to the Convention. The Committee encourages the Government to take the necessary steps to ensure that the application of the Convention is duly monitored and that data relating to the number and nature of cases of unequal remuneration detected by the labour inspectorate, and any remedies provided or sanctions imposed, are collected and disseminated.

Part V of the report form. The Committee notes from the Government’s report that the Human Rights Commission (HRC) did not examine any cases directly related to the Convention. The Committee asks the Government to continue to provide information on any relevant activities carried out by the HRC, the National Office of the Status of Women, the Office on the Empowerment of Women and the Commission on Gender Equality.

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

Article 1(b) of the Convention. Equal remuneration for work of equal value. In its previous observation, the Committee noted the Government’s indication that Chapter 2 of the Employment Equity Act (EEA) on prohibition of unfair discrimination is understood to encompass the principle of equal remuneration for men and women for work of equal value. Recalling its 2006 general observation on the Convention, in which the Committee urged governments to take the necessary steps to amend their legislation in order to incorporate expressly the principle of the Convention, the Committee asked the Government to consider amending the EEA so as to provide explicitly for equal remuneration for work of equal value. The Committee notes from the Government’s report that in the context of the review of the Employment Equity Regulations, which is scheduled for 2008/9, the principle of equal remuneration for work of equal value will be included in the new regulations. The Committee also takes note of the Government’s statement that, in the event of an amendment of the EEA, consideration will be given to incorporating the principle of the Convention in the Act. Welcoming the Government’s intention to include the principle of equal remuneration for work of equal value in the new Employment Equity regulations, the Committee also hopes that the Government will give due consideration to the possibility of including explicitly the principle of the Convention in the EEA and asks it to provide information on any developments in this regard. The Committee also asks the Government to supply a copy of the amended Employment Equity Regulations and reiterates its request for information on the practical application of the relevant provisions of the EEA to cover equal remuneration for work of equal value.

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

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

1. Article 2(2)(a) of the Convention. Application of the principle by means of legislation. The Committee refers to its previous comments on section 7 of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 in which it asked the Government to clarify the scope of section 7 of the Act and whether this provision includes the principle of equal remuneration for men and women for work of equal value. The Committee notes that, pursuant to Part V.A.1(b) of the Public Service Act, the principle of the Convention is applied to the South African police service. The Committee reiterates its request for the Government to clarify whether section 7 of the Promotion of Equality and Prevention of Unfair Discrimination Act covers equal remuneration for men and women for work of equal value.

2. The Committee notes that the Employment Equity Regulations have been amended to allow for the collection of data on gender and race on the basis of the employment equity reports submitted by employers and that information on this will be available in the course of 2007. The Committee also recalls its previous comments on the employment equity reports form for small businesses which do not require employers to indicate existing employment equity barriers related to remuneration and benefits. The Committee reiterates its previous request that the Government clarify the meaning of “disproportionate income differentials” and hopes that in its next report the Government will be able to provide an analysis of the income differentials between men and women based on the data received in 2007. Likewise, the Committee again invites the Government to indicate how equal remuneration between men and women for work of equal value is monitored in the employment equity report forms for small businesses. It also asks the Government to provide copies of the employment equity report and to keep it informed on whether any revision of the employment equity report form for small business has occurred so as to allow the employers to assess the application of the principle in their enterprise as well as to take the appropriate measures under the employment equity plan, in line with the suggestions previously made by the Committee.

3. Article 2(2)(b). Application by sectoral determination. The Committee recalls its previous comments on sectoral determinations setting minimum wages. It notes that, according to the Government’s report, sectoral determinations do not make specific distinction with respect to gender and, rather, they set minimum wages equally applicable to all employees within a given sector. The Government also explains that wage differentials do not relate to differentials between men and women, but to different levels of remuneration. The Committee asks the Government to supply copies of sectoral determinations setting minimum wages. The Committee also invites the Government to ensure that jobs in sectors in which women workers predominate are not being undervalued. The Committee, therefore, reiterates its request that the Government indicate how the Employment Conditions Commission ensures that gender bias is avoided in setting minimum rates of remuneration.

4. Article 2(2)(c). Wage determination by collective agreement. The Committee notes the Government’s indication that once a collective agreement is concluded, its provisions become enforceable pursuant to the Basic Conditions of Employment Act of 1997 and the Labour Relations Act of 1995. In the event of violation of such agreement on the part of the employer, the employee is entitled to bring a claim before the Department of Labour. Should the violation relate to an unfair labour practice, the employee can lodge a claim before the Commission for Conciliation, Mediation and Arbitration for conciliation first and, if this is not successful, for arbitration. The Committee would appreciate receiving copies of collective agreements enshrining the principle of equal remuneration for men and women for work of equal value as well as copies of any administrative, or judicial decisions or arbitration awards regarding violations of equal remuneration of provisions of collective agreements.

5. Article 3. Objective job evaluation. The Committee notes that the use of objective job evaluation systems is promoted through the Employment Equity Regulations (EE Regulations). According to the Government’s report, under such regulations, employers are required to report to the Department of Labour on their workforce profiles and income differentials in terms of the various occupational categories and levels. To this purpose, they are encouraged to use predetermined job evaluation systems taking into account both the occupational level, and the occupational category, with a view to determine the value of the job. The Committee also notes that the Peromnes job evaluation system is but one of the many job evaluation tools used by South African employers to ascertain the value of a given job. In that respect, the Committee recalls its 2006 general observation which points out that whatever methods are used for the objective evaluation of jobs, particular care must be taken to ensure that they are free from gender bias. In particular, it is important to ensure that the selection of factors for comparison, the weighting of such factors and the actual comparison carried out, are not inherently discriminatory. The Committee asks the Government to clarify how it is being ensured that job evaluation systems are free from gender bias, and in particular do not undervalue jobs predominantly performed by women. The Committee also asks the Government to provide copies of the employers’ reports incorporating job evaluation.

6. Article 4. Cooperation with the social partners. The Committee notes the extensive information provided by the Government on the composition and mandate of various tripartite bodies. However, no information has been provided on how these bodies operate in practice with respect to the promotion of the principle of the Convention. The Committee, therefore, asks the Government to provide more specific information on the activities carried out by the various tripartite bodies, and more generally, on the activities carried out with organizations of employers and workers to apply the provisions of the Convention.

7. Part III of the report form. Enforcement. In the absence of any response to its previous request, the Committee again invites the Government to provide information on the number of inspections carried out and the contraventions related to the Convention detected by the labour inspectorate .

8. Part V of the report reform. The Committee notes the statistics relating to 2005 on the distribution of men and women by sector of activity, occupation and corresponding wage. As acknowledged by the Government in its report, despite the Employment Equity Act and the relevant affirmative action measures put in place, men are still dominant in the sectors and occupations with the highest monthly income as compared to women. According to the statistical data provided, for instance, among the category of legislators, senior officials and managers in the higher remuneration group there are 235,000 men compared to 80,000 women. The Committee, therefore, invites the Government to adopt specific measures to address the wage differentials between men and women due to occupational segregation, and also refers to the comments on the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), made in this regard. The Committee invites the Government to continue to keep it informed regarding the activities carried out by the Human Rights Commission (HRC) as well as to provide information on the activities of the National Office of the Status of Women, the Office on the Empowerment of Women, and the Commission on Gender Equality as they relate to the application of the principle of the Convention.

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.

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

Article 1(b) of the Convention. Equal remuneration for work of equal value. The Committee recalls its previous observation on section 6 of the Employment Equity Act prohibiting unfair discrimination on the ground of sex, including with respect to remuneration, in which it asked the Government both to indicate whether this section required equal remuneration for men and women for work of equal value, and to consider amending the Act so as to give full expression to this principle. The Committee notes that, according to the Government’s report, Chapter 2 of the Employment Equity Act is understood to encompass the principle of equal pay for work of equal value and it also applies to independent contractors, members of the South African Defence Force, the National Intelligence Agency and the South African Secret Service. The Committee further notes the Government’s statement that “consideration would be given to establish whether there is a need to include this area [equal pay for work of equal value] either in the Act or in the Regulations”. In that regard, the Committee recalls its 2006 general observation on this Convention urging governments to take the necessary steps to amend their legislation in order to provide for equal remuneration for men and women for work of equal value (paragraph 6). The Committee therefore asks the Government to consider amending the Employment Equity Act so as to provide expressly for equal remuneration for men and women for work of equal value. The Committee invites the Government to keep it informed on any development which may occur in that respect as well as to provide information on the application of the relevant provisions of the Employment Equity Act.

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

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

1. Article 2 of the Convention. Scope of application. Noting the Government’s confirmation that independent contractors and members of the National Defence Force, the National Intelligence Agency and the South African Secret Service would be protected against gender discrimination under section 7 of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000, the Committee asks the Government to confirm whether this also includes protection against unequal remuneration between men and women for work of equal value.

2. Article 2(2)(a). Application of the principle by means of legislation. With reference to its comments on the application of section 27 of the Employment Equity Act (EEA), the Committee reiterates its request to the Government to clarify the meaning of "disproportionate income differentials" and to provide information on the actual differentials in income reported by designated employers, disaggregated by sex and broken down by categories as provided in the 1998 general observation on this Convention. Please also provide information about any efforts taken to ensure application of the principle of the Convention.

3. The Committee refers to its previous comments on the application of sections 19 and 20 of the EEA requiring employers to prepare and monitor the implementation of equity plans and thanks the Government for providing copies of the employment equity reports for small businesses and businesses with over 150 employees. It notes that the report forms provide for an analysis of the barriers to employment equity and for "affirmative action measures" taken to overcome these barriers as part of the employment equity plan. However, the report form for small businesses does not require employers to indicate any employment equity barriers related to remuneration and benefits and, overall, the report forms do not explicitly allow for an evaluation of whether or not any wage discrimination between men and women exists. The Committee asks the Government to indicate how equal remuneration between men and women for work of equal value is monitored in these report forms and to consider revising the report forms so as to allow employers to assess the application of the principle in their enterprise and to take the appropriate measures under the employment equity plan. Please also continue to provide copies of the employment equity reports.

4. Article 2(2)(b). Application by Sectoral Determinations. The Committee notes the Sectoral Determinations No. 6 and No. 7 for the Private Security Sector and Domestic Workers and the Government’s statement that "wage differentials and inequality" are amongst the criteria used for setting minimum wages. It asks the Government to continue to provide copies of sectoral determinations setting minimum wages and to indicate whether "wage differentials and inequality" include wage inequalities between men and women. Please also indicate how the Employment Conditions Commission, who are to undertake research on income differentials and advise the minister on sectoral determinations, ensure that gender bias is avoided in setting minimum rates of remuneration as well as any additional payments in cash and in kind.

5. Article 2(2)(c). Wage determination by collective agreement. As regards the steps the Government is taking to ensure that the principle of the Convention is applied in collective agreements, the Committee notes that the Government indicates that it ensures compliance with the requirements of the Employment Equity Act. It also notes that no such procedure exists for those private collective agreements that do not have to go through the Minister for publication and extension to non-parties. The Government is asked to provide information on the measures taken to promote the application of the principle of the Convention by workers’ and employers’ organizations party to such agreements. Please also continue to provide copies of any relevant collective agreements.

6. Article 4. Cooperation with the social partners. The Committee would be grateful if the Government would provide information in its next report on the specific activities carried out with organizations of employers and workers to apply the provisions of the Convention.

7. Part III of the report form. Enforcement. The Committee notes the information on the number of inspections carried out and contraventions detected by the labour inspectorate, for which it is thankful. However, the statistics do not indicate whether these contraventions include violations that directly relate to the implementation, or the violation, of the Convention. It hopes that the Government will be in a position to provide such information in its next report. Please also provide information on any action taken by the Department of Labour, when reviewing employment equity reports, against employers who are not complying with the provisions of the EEA that relate to wage discrimination.

8. Part V of the report form. The Committee notes the information on the activities by the Human Rights Commission (HRC). However, it would like to receive information, including any reports or studies, on how these activities as well as those of the National Office on the Status of Women, the Office on the Empowerment of Women, and the Commission on Gender Equality help to promote the application of the principle of the Convention. Referring to its 1998 general observation, it also reiterates its request for statistics on the distribution of men and women by sector of activity and occupation and their corresponding wages, in the public and private sectors.

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.

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

1. Article 1(b) of the Convention. Equal remuneration for work of equal value. The Committee had previously noted that section 6 of the Employment Equity Act (EEA) of 1998 prohibits any person to "unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including gender, sex", including with respect to remuneration. It had asked the Government to indicate whether this section required equal remuneration for men and women for work of equal value. The Committee notes, in this regard, the Government’s statement that while section 6 does not specifically include this principle of the Convention, it nonetheless prohibits unfair discrimination based on sex. In this context, the Committee notes with interest the judgement by the Labour Court of 8 December 1999 in Louw v. Golden Arrow Bus Services stating that although the principles of equal pay for equal work and analogously for work of equal value are not enshrined in the unfair labour practice definition, they are "principles of justice, equity and logic which may be taken into account when considering if an unfair labour practice has been committed". The Court also holds that it is an unfair labour practice to pay different wages for equal work or for work of equal value if the reason is direct or indirect discrimination on arbitrary grounds or on the grounds listed in the Act which include sex. The Committee asks the Government to consider amending the Employment Equity Act so as to provide for equal remuneration for men and women for work of equal value.

2. Article 3. Objective evaluation of jobs. The Committee notes with interest that the Labour Court in the abovementioned Louw v. Golden Arrow Bus Services case relied on evidence by an independent expert explaining the "Peromnes job evaluation system" to determine whether two jobs were of equal value. The Peromnes method, which is widely used, is a points assessment technique using eight factors, each of which is weighted to determine the position of the job in the grade ranking: problem solving; consequences of judgements; pressure of work; knowledge; job impact; comprehension; educational qualification; and training experience. The Committee asks the Government to continue to provide copies of similar case law and information on how the provisions of the Convention are applied in practice in both the private and public sectors. Please also indicate any measures taken or envisaged to promote the use of the Peromnes method or any other method for the objective appraisal of jobs and their impact on reducing wage differentials between men and women.

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

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information in the Government’s first report and related materials.

1. Article 1(b) of the Convention. The Committee notes that section 6 of the Employment Equity Act (EEA) of 1998 prohibits any person to "unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including ... gender, sex ...", including with respect to remuneration. While this section does not specify that it prohibits unequal remuneration as between men and women, not only for equal work, but for work of equal value, the Committee notes that section 3 of the EEA provides that its provisions must be interpreted "in compliance with the international law obligations of the Republic". Recalling that the principle of the Convention is that men and women are to receive equal remuneration for work of equal value, the Committee asks the Government to indicate whether in fact section 6 requires equal remuneration as between men and women for work of equal value. At the same time, the Committee urges the Government to consider revising the legislation to include an explicit reference to the principle of equal remuneration for work of equal value.

2. The Committee notes that the Promotion of Equality and Prevention of Unfair Discrimination Act was enacted in part to implement article 9 of the Constitution, which prohibits unfair discrimination by any person or state official, either direct or indirect, based on sex among other grounds. It also notes that this Act and the Constitution are the only basis on which independent contractors and certain public servants may seek protection from discrimination in remuneration. Accordingly, the Committee asks the Government to confirm that these instruments in fact prohibit, as to these groups, unequal remuneration as between men and women for work of equal value.

3. Article 2(2)(a). The Committee notes that section 27 of the EEA requires all designated employers, as part of their reporting duties, to submit a statement "on the remuneration and benefits received in each occupational category and level of that employer’s workforce", and to take measures to reduce disproportionate income differentials whenever they are reflected in such statements. The Committee asks the Government for clarification of the meaning of the term "disproportionate income differentials". In this connection, the Committee also asks the Government for specific information on the actual differentials in income reported by designated employers, disaggregated by sex and broken down by categories as provided for in the 1998 general observation. Finally, the Committee asks the Government for information as to income differentials in workplaces of employers who are not "designated", as well as about any efforts it is undertaking to ensure compliance by these employers with the principle of the Convention.

4. The Committee notes that sections 19 and 20 of the EEA require employers, inter alia, to prepare and implement employment equity plans with specific objectives and targets, and to monitor and evaluate the implementation of the plans, and that section 20(2)(c), in particular, provides that where women (among others) are found to be under-represented in a given occupational category, specific strategies must be developed to ensure that "suitably qualified" women be assigned to the relevant category. The Committee asks the Government to indicate whether any of these employment equity plans promote equal pay for work of equal value.

5. Article 2(2)(b). The Committee notes that Chapter 8 of the Basic Conditions of Employment Act provides that the Minister may make a determination establishing "basic conditions of employment for employees in a sector and area". Such sectoral determinations may include the setting of minimum rates of remuneration, adjustments to such rates, the regulation of the manner, timing and other conditions of payment of remuneration as well as the regulation of other payments, the minimum conditions of employment for trainees, training and education schemes, or "any other matter concerning remuneration or other terms or conditions of employment". Finally, the Committee notes that such determinations are to be made based on investigations and the resulting reports. The Committee asks the Government for copies of any sectoral determinations made by the Minister, along with details as to criteria used for setting minimum wages. It also asks the Government how the principle of the Convention is applied in the development of these determinations.

6. The Committee notes that the Employment Conditions Commission is to advise the Minister of Labour on sectoral determinations, and that it is to research and investigate norms and benchmarks for proportionate income differentials and advise the Minister on appropriate measures for reducing disproportionate differentials. It also notes that the Commission for Employment Equity is charged with the responsibility of researching and reporting, in the context of the EEA, on norms and benchmarks for the setting of numerical goals in various employment sectors. The Committee asks the Government for any reports prepared, or other research carried out, by either of these bodies in these connections, as well as for information regarding any action taken to reduce gender-based income differentials.

7. Article 2(2)(c). The Committee notes the Government’s explanation that collective agreements employ a definition of "wage" which refers "to the amount of money payable to an employee as prescribed in the collective agreement in respect of the employee’s ordinary hours of work as prescribed", and that the term "equal remuneration for work of equal value" is not made use of at all in these collective agreements, but that the agreements are bound by the principles of national legislation. In view of the fact that the collective agreement definition of "wage" is much narrower than the Convention’s definition of "remuneration", the Committee asks the Government what steps it is taking to ensure that the principle of the Convention is respected in collective agreements. At the same time, it asks the Government to forward copies of the collective agreements.

8. Article 3. The Committee notes that in section 2.3.2 of the National Gender Policy Framework it is acknowledged that low value is accorded to women’s work and women are clustered in low-paid jobs, but that the report contains no information or indication that objective job evaluation is being done with respect to promoting equal pay for men and women of all races. It asks the Government for details of any such objective job evaluation that it is in the process of undertaking, and also for any plans it has for carrying out such evaluations in the future.

9. Article 4. The Committee notes the Government’s assertion that cooperation between employers’ and workers’ organizations is subject to the principles of the Constitution and the Labour Relations Act, and asks the Government for specific information as to how the principle of the Convention is applied in practice in the course of this cooperation.

10. Part III of the report form. The Committee asks the Government for information about the number of labour inspections carried out by labour inspectors, any violations of the Convention discovered, and remedies applied. At the same time, it asks the Government for details of any reviews by the Director-General of the Department of Labour, in the context of his or her duty to conduct reviews to determine if an employer is complying with the EEA, which directly relate to the implementation, or the violation, of the Convention.

11. Part V of the report form. The Committee notes with interest the creation and functioning of a wide range of governmental bodies and officials that carry out activities directly relevant to the Convention, including the National Office on the Status of Women, the Office on the Empowerment of Women, the Joint Monitoring Committee on the Improvement of the Quality of Life and the Status of Women, and the Human Rights Commission. The Committee particularly notes the functions of the Commission on Gender Equality, including (but not limited to): (i) monitoring compliance with international instruments; (ii) making recommendations on policies and practices of South African organizations, bodies and institutions to ensure they promote gender equality; (iii) evaluating proposed legislation and making recommendations regarding the adoption of new legislation that would promote gender equality; and (iv) conducting appropriate research. The Committee asks the Government for specific information with respect to the activities of any of these bodies in so far as their work implicates the principle of the Convention. It also asks the Government for statistics relating to equal remuneration as between men and women for work of equal value, in accordance with the 1998 general observation on the Convention.

12. The Committee asks the Government to forward any judicial decisions relating to the principle of equal pay as between men and women for work of equal value.

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.