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

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

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.