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

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

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.