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

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.