Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Equal Remuneration Convention, 1951 (No. 100) - South Sudan (Ratification: 2012)

The Committee notes with regret that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2016.

Repetition

The Committee notes the Government’s first report including the attached documentation. The Committee notes the developments in the country, including the Agreement on the Resolution of the Conflict in the Republic of South Sudan, signed on 17 August 2015, by the parties to the conflict (the “Peace Agreement”), establishing a Transitional Government of National Unity (A/HRC/31/49, 10 March 2016, paragraphs 10 and 59). The Committee notes that pursuant to article 13.1 of the Peace Agreement, a reconstituted National Constitutional Review Committee will draft or revise, as appropriate, other legislation provided in the Peace Agreement, as well as a Constitutional Amendment Bill upon signing the Peace Agreement with the latter’s incorporation into the Transitional Constitution of the Republic of South Sudan of 2011 (TCSS). The Committee further notes the Government’s indication that a draft Labour Bill of 2012, drawn up with the assistance of the Office, was in the third and final reading at the national Legislative Assembly at the time of the submission of the Government’s first report in 2015. While acknowledging the difficult situation prevailing in the country, the Committee hopes that the efforts of the international community will assist South Sudan to attain political stability and establish an environment conducive to ensuring the protection afforded by the Convention, and requests the Government to provide information on the following.

Article 1(a) of the Convention. Definition of remuneration. The Committee notes that while the draft Labour Bill guarantees in section 8(1) that women and men shall be entitled to equal remuneration for work of equal value, the term “remuneration” is not defined in the legislation. The Committee further notes that section 44 of the Civil Services Act refers to all “payments and privileges” which include the “basic salary, social benefits, allowances and benefits in kind”. The Committee draws the attention of the Government to the very broad definition of “remuneration” in Article 1(a) of the Convention and the fact that the term “remuneration” needs to be defined with rigour if the Convention is to be applied fully (see 2012 General Survey on the fundamental Conventions, paragraph 689). The Committee requests the Government to take measures to ensure the inclusion of a definition of remuneration in the draft Labour Bill 2012, in accordance with Article 1(a) of the Convention, covering all elements of remuneration, including not only the basic or minimum wage, but also any additional allowances, paid directly or indirectly, in cash or in kind, by the employer to worker.

Articles 1(b) and 2. Equal remuneration for work of equal value. Legislation. The Committee notes that article 16(2) of the Transitional Constitution of South Sudan (TCSS) gives women the right to “equal pay for equal work and other related benefits with men”, which is narrower than the principle set out in the Convention. The Committee welcomes the Government’s indication, in its report, that it is considering amending the TCSS to reflect fully the principle of equal remuneration for work of equal value. The Committee further notes that pursuant to section 8(1) of the draft Labour Bill 2012, “women and men shall be entitled to equal remuneration for work of equal value”, and that section 8(2) requires every employer to “take positive steps to guarantee equal remuneration for men and women for work of equal value”. The Committee encourages the Government to take the opportunity of the further amendment of the TCSS, to ensure that article 16(2) fully takes into account the principle of equal remuneration for work of equal value set out in the Convention and to provide a copy of the constitution as amended, once adopted.

Public service. The Committee notes that section 19(b) of the Civil Service Act provides in general terms for equal rights for women and men in remuneration without specifically referring to the principle of equal pay for work of equal value. The Committee further notes that provision 4.2(1) of the Policy Framework for the Public Service of South Sudan 2007, which pre-dates the independence of South Sudan, refers to the principle of “equal pay for equal work”, which is narrower than the principle of the Convention. The Committee asks the Government to indicate the current status of the Policy Framework for the Public Service of South Sudan 2007, and to take the necessary steps to take into account, in any future development of a policy framework for the public service, the inclusion of the principle of the Convention, which should cover not only situations in which men and women perform equal pay for “equal” work, but also situations in which men and women do work which is entirely different but which can nevertheless be of equal value. The Committee requests the Government to seize the opportunity of any legislative review under the Peace Agreement to amend section 19(b) of the Civil Service Act, so as to give full legal expression to the principle of equal remuneration for men and women for work of equal value, and to provide a copy of any amendments made in this regard. The Committee also asks for a copy of the Regulations detailing further rights and obligations of civil servants, as indicated in section 20(2) of the Civil Service Act.

Article 2(2). Rates of remuneration in the private sector. The Committee notes that section 17(4)(d) of the draft Labour Bill 2012 mandates the Labour Advisory Council (LAC) to “fix, review periodically and adjust minimum wages in accordance with section 52 of the draft Labour Bill”. Pursuant to section 52(3) of the draft Labour Bill of 2012, the Labour Advisory Council may, subject to the principle of equal pay for work of equal value, fix different minimum wages for different occupations or for special categories of employees. The Committee emphasizes that the fixing of minimum wages can make an important contribution to the application of the principle of the Convention (see 2012 General Survey, paragraph 706). The Committee requests the Government to provide information on how it is being ensured that the LAC, once established and functioning, will take into account the principle of equal remuneration for men and women for work of equal value when setting different minimum wages for different occupations and for special categories of workers. It also requests the Government to indicate whether the interim tripartite cooperative body mentioned in the Government’s report has still a role in setting minimum wages for certain occupations and categories of workers, and if so, how this tripartite body is ensuring that when setting minimum wages, occupations and the work in sectors where women predominate, is not being undervalued as compared to the work undertaken in sectors employing primarily men.

Rates of remuneration in the public service. The Committee notes that section 45(3) read together with section 21(1)(2) of Chapter VII of the Civil Service Act of 2011 provide that “the schedule of salary rates” is based on “the Civil Service Grade Classification Structure” composed of six categories of staff: (a) leadership; (b) super grade; (c) administrative and professional; (d) technical and para-professional; (e) skilled worker; and (f) unskilled worker. Examples of the title of posts included in each grade classification are set out in Schedule 1 of the Act. Section 45(1) provides for the issuance of a regulation indicating a “schedule of salary rates for the Grade Classification structure and pay grade”. The Committee requests the Government to provide information on how the principle of equal remuneration for men and women for work of equal value is being applied in practice in the public service. Please provide information on the criteria used in determining the posts and their corresponding salary scales in the Civil Service Grade Classification Structure and to ensure that these were established without discrimination based on sex. Please provide information on the distribution of men and women in each of the grades and salary scales in the civil service.

Article 3. Objective job evaluation in the public sector. The Committee notes that section 25(1) of the Civil Service Act 2011 gives the Government the responsibility “of preparing and maintaining a job description in relation to each post in the institution’s establishment structure other than skilled and unskilled worker posts” and to review “all job descriptions and selection criteria, at least, every two years” (section 25(5)). The Committee notes that under section 25(2)(a) read with section 31(1)(c), the selection criteria in the job description relate to such factors as “knowledge, skills, experience, qualifications and personal attributes necessary or desirable for the competent performance of [relevant] duties and responsibilities”. The Government also indicates that section 59 of the Civil Service Act refers to the “merit principle” for the purposes of “progression of civil servants, officials and employees within their grade or from one level to another”. The Committee notes that there may be the potential for some confusion to exist between performance appraisal, which aims at evaluating the performance of an individual worker in carrying out his or her job, and objective job evaluation, which is to measure the relative value of jobs with varying content on the basis of the work to be performed. Objective job evaluation is concerned with evaluating the job and not the individual worker (see General Survey, 2012, paragraph 697). The Committee requests the Government to provide information on: (i) whether in developing job descriptions, it undertakes a formal and objective analysis of the jobs content, in particular, whether numerical values are given to “the knowledge, skills, experience, qualifications and personal attributes necessary or desirable for the competent performance of ... duties”, with a view to determining entitlement to equal remuneration for men and women for work of equal value and if that is the case, how; (ii) the methods adopted to determine rates of remuneration for skilled and unskilled worker categories which are not covered by section 25(5) of the Civil Service Act 2011. Please provide information on any measures taken to undertake objective job evaluation free from gender bias in the public service.

Article 3. Objective job evaluation in the private sector. The Committee notes that section 8(3) of the draft Labour Bill 2012, defines “work of equal value” as “work which requires of workers a comparable amount of vocational knowledge attested to by a qualification, diploma or work experience, capacities derived from acquired experience, responsibilities and physical or intellectual effort”. The Committee recalls that while the Convention does not prescribe any specific method of the examination of the respective tasks involved with respect to the different jobs, Article 3 presupposes the use of appropriate techniques for objective job evaluation, comparing factors such as skill, effort responsibilities as well as working conditions (see General Survey, 2012, paragraph 695). The Committee requests the Government to provide information on any measures taken or envisaged to encourage and promote the use of objective job evaluation methods in the private sector.

Article 4. Cooperation with employers’ and workers’ organizations. The Committee notes the Government’s indication that the establishment of the tripartite Labour Advisory Council depends on the enactment of the draft Labour Bill 2012, while an interim tripartite cooperation body, a Labour Advisory Committee, is in operation. The Committee requests the Government to provide information on activities carried out by the interim tripartite cooperation body, to give effect to the Convention. Please also provide information on any other measures taken, in cooperation with the workers’ and employers’ organizations, to promote the principle of the Convention, including in collective agreements.

Practical application. Noting the ongoing legislative process in the country, the Committee requests the Government to provide full updated information on each of the provisions of the Convention and on each question set out in the report form. In doing so, the Committee also asks the Government to consider the requests for information in this direct request, in particular, related to any amendments to the draft Labour Bill 2012, before its adoption as well as the Civil Service Act, and other relevant legislation. The Committee also requests updated information on monitoring activities, especially those carried out by the competent authorities relating to the application of the Convention, including details of their findings, and on any other initiatives taken by them with a view to promoting the application of the Convention. The Committee also requests the Government to provide a general appreciation of the application of the Convention, including copies of any relevant studies or surveys that have been undertaken on the principle of equal remuneration for men and women for work of equal value.

Statistics. The Committee requests the Government to provide statistics of the earnings of men and women in the public and the private sectors, by occupational sector and job category, and disaggregated by sex.