Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) - South Africa (RATIFICATION: 2003)

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The Committee notes the observations of the Business Unity South Africa (BUSA), received on 28 August 2023. The BUSA refers to the letter dated 14 July 2023 sent by the Government to the ILO Director General supporting the request of the Workers’ group to place an item on the agenda of the 349th Session of the Governing Body (October–November 2023) for urgent discussion and decision on a referral to the International Court of Justice for an advisory opinion concerning the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) in relation to the right to strike. In this respect, the BUSA expresses its deep concern that the Government did not undertake effective consultations with the social partners on this important matter prior to sending its letter. The BUSA concludes that the Government failed to comply with the Convention and undermined its voice as the most representative employers’ organization and hindered tripartism in the country. The Committee requests the Government to respond to these observations in its next report.

Article 5 of the Convention. Effective tripartite consultations. The Committee notes the information provided by the Government’s report on the tripartite consultations held within the National Economic Development and Labour Council (NEDLAC) with regard to questionnaires on the Conference agenda items (Article 5(1)(a)), unratified Conventions and Recommendations to which effect has not yet been given (Article 5(1)(c)), and reports to be submitted to the ILO under article 22 of the ILO Constitution (Article 5(1)(d)). The Committee notes with interest the ratification of the Violence and Harassment Convention, 2019 (No. 190) on 29 November 2021, following tripartite consultations. The Government also reports that tripartite consultations were also held with regard to the possibility of ratifying the Employment Policy Convention, 1964 (No. 122). Lastly, the Committee notes that, according to the minutes of the meetings of the Decent Work Country Programme (DWCP) Steering Committee of the NEDLAC held on 31 March 2020 and 12 April 2021, tripartite consultations were also held on ILO related activities (paragraph 6 of the Tripartite Consultation (Activities of the International Labour Organization) Recommendation, 1976 (No. 152)), including the implementation update on the DWCP, the southern African Migration Management (SAMM) Project, the Social Solidarity Economic Policy project, the Apprenticeships development for universal lifelong learning and training (adult) global project, and several request to be submitted to the ILO for technical assistance. The Committee requests the Government to continue to provide information on the content and outcome of tripartite consultations held on matters concerning international labour standards covered by the Convention, particularly relating to the questionnaires on the Conference agenda items (Article 5(1)(a)); the submission of instruments adopted by the Conference to the National Assembly (Article 5(1)(b)); the re-examination at appropriate intervals of unratified Conventions and Recommendations to which effect has not yet been given (Article 5(1)(c)); questions arising out of reports to be presented on the application of ratified Conventions (Article 5(1)(d)); and the possible denunciation of ratified Conventions (Article 5(1)(e)).

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Article 5(1) of the Convention. Effective tripartite consultations. The Government reports that meetings of the tripartite Labour Market Chamber of the National Economic Development and Labour Council (NEDLAC) were held in April, June, August and October 2016, and in February, April and July 2017. The Committee also notes the information provided by the Government on a number of international labour standards (ILS) reporting workshops held since 2010, notably the 6th and 7th ILS Reporting Workshops held in 2015 and 2017, respectively. The Committee requests the Government to provide information on the content and outcome of tripartite consultations held on matters concerning international labour standards covered by the Convention, particularly relating to the questionnaires on the Conference agenda items (Article 5(1)(a)); the submission of instruments adopted by the Conference to the National Assembly (Article 5(1)(b); the re-examination at appropriate intervals of unratified Conventions and Recommendations to which effect has not yet been given (Article 5(1)(c)); questions arising out of reports to be presented on the application of ratified Conventions (Article 5(1)(d)); and the possible denunciation of ratified Conventions (Article 5(1)(e)).

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Article 5 of the Convention. Effective tripartite consultations. The Government indicates in its report that the National Economic Development and Labour Council (NEDLAC) is the vehicle by which government representatives, employers’ and workers’ representatives seek to cooperate on economic, labour and development issues. Following consultations on relevant policies, a NEDLAC report is compiled which contains the areas of agreement and disagreement. The Government adds that NEDLAC’s Labour Market Chamber considers matters related to international labour standards, including unratified Conventions (Article 5(1)(c) of the Convention) and questions arising out of reports to be made under article 22 of the ILO Constitution (Article 5(1)(d)). The Committee notes in this regard from the report the written communications exchanged between NEDLAC and the Minister of Labour concerning the most recent Conventions that have been ratified by South Africa. The Committee requests the Government to continue to provide information on the content and outcome of the tripartite consultations held concerning international labour standards. Please also provide a copy of the NEDLAC report if it pertains to matters covered by the Convention (Article 6).

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Article 5 of the Convention. Effective tripartite consultations. The Government indicates in its brief report that no legislative or policy changes have occurred since the last report that could have an impact on the implementation of the Convention. The Committee invites the Government to provide detailed information on the content and outcome of the consultations held on the matters concerning international labour standards covered by the Convention.

[The Government is asked to reply in detail to the present comments in 2015.]

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Effective tripartite consultations required by the Convention. The Committee takes note of the information provided in the Government’s report received in October 2008. The Government details the procedures for tripartite consultations on each of the matters listed under Article 5, paragraph 1, of the Convention. The Government indicates that, at any stage, any constituency of the National Economic Development and Labour Council (NEDLAC) can table a matter under Article 5, paragraph 1, of the Convention for discussion in the appropriate chamber. If the matter involves more than one chamber, any constituency can table the matter either at one of the chambers, or at the over-arching management committee which is made up of representatives of the employers, workers and community organizations. The Government indicates that the NEDLAC consultative negotiations are then followed extensively, and that this implies that every constituency has the full opportunity to express its views. The Committee notes with interest the information supplied on the procedures of the tripartite consultative process on matters covered by the Convention. The Committee requests the Government to provide further information in its next report on the content and outcome of the tripartite consultations held on matters listed under Article 5, paragraph 1, of the Convention, including information on the nature of any reports or recommendations made as a result of the consultations.

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1. The Committee notes the Government’s first report on the application of the Convention received in September 2005. The report contains detailed and comprehensive information on the consultations held at various levels and on different matters, including employment conditions, employment equity and economic and social policies. The Government refers to the activities carried out by the National Economic Development and Labour Council (NEDLAC), which is composed of representatives of the organizations of employers and workers, as well as representatives of the organized community and development interests. The Committee invites the Government to indicate in its next report how NEDLAC is involved in the consultations required by the Convention. In this respect, the Committee recalls that the consultation procedures must be effective, that is, they must provide employers’ and workers’ organizations with an opportunity to express their views usefully on all the matters covered by the Convention (Article 2 of the Convention).

2. The Committee notes that the reports prepared under articles 19 and 22 of the Constitution are submitted to the social partners for their comments and contribution in terms of article 23. The Government further states that, as part of the process of considering whether to ratify a Convention or not, input is requested from the social partners. Consultation is achieved despite not physically holding a meeting. The Committee therefore asks the Government to give particulars of the consultations held on each of the matters referred to below, including information as to the frequency of such consultations and the nature of any reports or recommendations made as a result of them (Article 5). The Committee recalls that certain of the matters covered (replies to questionnaires, submissions to Parliament, reports to be made to the ILO) imply annual consultation, while others (re-examination of unratified Conventions and Recommendations, proposals for the denunciation of ratified Conventions) require less frequent examination.

(a)   Items on the agenda of the Conference. Under this provision, the Government is bound to consult the representative organizations of employers and workers before finalizing the text of its replies to ILO questionnaires.

(b)   Submission to Parliament of Conventions and Recommendations. On this matter, the Convention goes beyond the obligation set out in article 19 of the ILO Constitution by calling upon the Government to consult the representative organizations before finalizing the proposals to be submitted to Parliament in relation to the obligation to submit the instruments adopted by the Conference.

(c)   Re-examination of unratified Conventions and of Recommendations. Tripartite consultations on this subject are intended to promote the implementation of international labour standards by enabling the Government to envisage, in the light of changes in national law and practice, measures which could be taken with a view to facilitating the ratification of a Convention or the application of a Recommendation to which it was not possible to give effect at the time of their submission.

(d)   Reports on ratified Conventions. This provision goes beyond the obligation set out in article 23, paragraph 2, of the Constitution to communicate reports; it consists of undertaking consultations on the problems which may arise in the reports due under article 22 on the application of ratified Conventions; in general, these consultations concern the contents of replies to the comments of the supervisory bodies.

(e)   Proposals for the denunciation of ratified Conventions. Under the terms of this provision, the Government is bound to consult the representative organizations when it envisages denouncing a ratified Convention.

3. The Committee notes that the report on the NEDLAC activities forwarded by the Government does not refer to the consultations covered by the Convention. It invites the Government to indicate in its next report the manner in which administrative support and financing of any necessary training of participants is ensured in accordance with Article 4. It further recalls that, in accordance with Article 6, the Government is under the obligation to consult the representative organizations of employers and workers on the necessity of issuing an annual report on the working of the procedures provided for in the Convention. The Committee asks the Government to give particulars in its next report of the consultations that have taken place on this question and their outcome.