Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 1, paragraph 1(a), of the Convention. Sexual harassment. The Committee notes from the Government’s report that various cases of sexual harassment in the workplace were brought before tribunals, including cases addressing employers’ duty to take reasonable steps to prevent it. In this regard, the Committee recalls its previous comments concerning the adoption of the Code of Good Practice on the Handling of Sexual Harassment Cases, which is meant to guide employers in developing their own codes of practice to tackle sexual harassment at work. The Committee again requests the Government to monitor the extent to which the Code of Good Practice 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. Please also provide information on any other measures adopted or envisaged to address sexual harassment in the workplace and continue to provide information on judicial and administrative decisions regarding sexual harassment and on the remedies provided.

Article 1, paragraph 1(b). HIV/AIDS status. The Committee notes the decision of the High Court of Pretoria of May 2008, holding that the implementation of the HIV testing policy adopted by the South African National Defence Force (SANDF), in terms of which no persons who are HIV positive may be recruited, deployed externally or promoted within the SANDF, infringes their right not to be unfairly discriminated against, as enshrined in article 9(3) of the Constitution, and should therefore be revised. The Committee requests the Government to provide information on the outcome of the SANDF’s policy review. Noting the adoption of the National Strategy Plan on HIV/AIDS
(2007–11), the Committee would also appreciate receiving information on any measures adopted or envisaged under this plan to prevent and address discrimination in employment and occupation based on HIV/AIDS status.

Article 2. Promotion of national policy. Recalling its previous comments on the role of the Human Rights Commission (HRC) in monitoring the implementation of the Promotion of Equality and Prevention of Discrimination Act (Equality Act), the Committee reiterates its request for information on the number and results of 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 at work. Please also provide information on the measures taken or envisaged under section 25 of the Equality Act to publicize the Act.

Equality between men and women. In its previous comments, the Committee noted that women are disproportionately found in the least remunerated and lowest ranking occupations. It also noted that there are more black women employed in unskilled occupations than white women (of the total amount of people employed in unskilled occupations, 23.5 per cent are black women and 0.7 per cent are white women). The Committee notes the Government’s indication that this situation is the result of the persisting effects of apartheid which the Employment Equity Act (EEA) of 1998 aims to address. It also notes that the review conducted to assess employers’ compliance with the EEA points out a substantial shift towards the employment of white women at the upper occupational levels when compared to the employment rights of women from other groups, especially black women. According to the Government’s report, white women are the biggest beneficiaries of the EEA. The Committee encourages the Government to make every effort to reduce the occupational segregation of women in low-skilled jobs, especially black women, and requests it to supply information on the specific measures taken or envisaged to this end, including measures aimed at promoting women’s access to a greater variety of jobs and higher level positions, through, for example, education and professional training. The Committee also requests the Government to provide statistical information on the situation of men and women in the labour market, including data on the distribution of men and women in the various sectors, occupations and positions of responsibility in both the public and the private sectors, disaggregated, as far as possible, by colour and national extraction.

Equality in employment and occupation irrespective of race and colour. The Committee refers to its previous comments regarding the high concentration of black persons in low-skilled jobs. It notes the Government’s indication that in 2006 the “white group”, which accounted for only 10 per cent of the population, represented between 50 per cent and 65 per cent of all recruitments and all promotions at the middle-to-upper occupational levels. The Committee also understands from the information provided by the Government on the Equal Remuneration Convention, 1951 (No. 100), that there exist various cases of wage discrimination on the grounds of colour and race. The Committee requests the Government to provide full information on the measures taken or envisaged to address the current horizontal and vertical occupational segregation in the labour market based on colour and race and on their impact. It also requests the Government to continue to make every effort to promote equality of opportunity and treatment in employment and occupation, irrespective of race and colour, including with regard to working conditions and equal remuneration for work of equal value, and to supply information on the measures taken or envisaged to this end, including on any educational and awareness-raising initiatives, carried out in collaboration with the social partners, with a view to combating discrimination, and their impact. Please also supply information on income differentials between the designated groups which have emerged from the income differentials statements submitted by employers under the Employment Equity Regulations on Income Differentials.

Employment Equity Plans. With regard to its previous request for information on the implementation of Employment Equity Plans (EEPs), the Committee notes that, according to the findings of the reviews conducted by the Director-General of the Department of Labour pursuant to section 44 of the EEA, most employers submitted their Employment Equity reports without developing an EEP and those who adopted a plan did not set clear objectives and affirmative action measures. The Committee recalls that the Director-General can make recommendations to employers indicating which steps should be taken in relation to the formulation of the EEP or its implementation (section 44) and that, in the case of non-compliance with these recommendations, the issue can be referred to the Labour Court (section 45). The Committee requests the Government to indicate what measures have been taken as a follow-up to the Director-General’s recommendations, including information on any cases of non-compliance referred to the Labour Court. Please also continue to provide information on the implementation of the EEPs and the findings of the Director-General’s reviews. The Committee would also appreciate receiving information on the activities carried out by the Commission for Employment Equity under section 30 of the EEA.

Article 3(a). Cooperation with the social partners. The Committee notes the Government’s indication that the National Economic Development and Labour Council (NEDLAC) has an “employment equity/skills development” team, comprising government and social partner representatives, which, among other things, assists employers in preparing their Employment Equity reports and carries out awareness-raising campaigns on the EEA. The Committee invites the Government to continue to provide information on the activities carried out by the NEDLAC and by its “employment equity/skills development” team with a view to promoting the implementation of the EEA. Please also provide information on any other initiatives realized in collaboration with workers’ and employers’ organizations to promote the acceptance and the full application of the national equality policy, as well as on their impact, particularly as regards the design and implementation of affirmative action measures under the EEP.

Article 3(e). Access to vocational training. The Committee recalls that phase two of the National Skills Development Strategy (NSDS) (April
2005–March 2010) focused on the training of black persons, women, people with disabilities and youths. It also recalls that an independent research project was launched to evaluate the impact of such training in relation to the placement results in employment and learning opportunities. The Committee again requests the Government to provide information on the outcome of the second phase of the NSDS and the findings of the independent research project. Please also indicate the number of unemployed black people, women and persons with disabilities who received training and sustainable employment in connection with the programmes carried out.

Article 5. Special measures. The Committee again encourages the Government to maintain special emphasis on affirmative action measures in order to overcome the persistent effects of past patterns of discrimination against black persons and women and reiterates its request for information on the measures taken to this end and their impact on promoting equality of opportunity and treatment in employment and occupation.

Persons with disabilities. The Committee notes that the Code of Good Practice on Managing Disability should assist employers, workers and their organizations to develop, implement and refine disability equity policies and programmes, in accordance with the needs of their own workplaces. The Code also sets out additional measures that should reinforce the EEPs with the aim of ensuring equal opportunities for people with disabilities who are suitably qualified for a job. The Committee notes from the Government’s report that the reviews conducted by the Director-General found that employers are reluctant to hire people with disabilities because of difficulties in finding suitably qualified candidates among people with disabilities and the costs involved in providing reasonable accommodation of their needs. The Committee also notes that the Integrated National Disability Strategy (INDS) is being reviewed to bring it in line with the newly ratified UN Convention on the Rights of Persons with Disabilities. The Committee requests the Government to provide information on the measures taken or envisaged to enhance the implementation of the Code of Good Practice on Managing Disability and to promote the insertion of specific affirmative action measures in the EEPs, including with regard to access to vocational training. Please also provide a copy of the new Integrated National Disability Strategy once finalized.

Indigenous peoples. The Committee refers to its previous comments on the situation of indigenous peoples in the country, emphasizing that these peoples are highly marginalized and concentrated at the lower end of the socio-economic scale. It notes from the Government’s report to the UN Universal Periodic Review Mechanism (15 April 2008) that there are an estimated 10,000 members of the indigenous San community living in South Africa. It also notes that the Northern Cape Department of Education is currently exploring the possibility of using the standard orthography of the San to develop learning and teaching support material for use in primary school (paragraph 77). Recalling that Article 5(2) of the Convention contemplates the adoption of special measures to meet the particular requirements of persons who are generally recognized as requiring special protection, such as indigenous peoples, the Committee requests the Government to provide information on any special measures adopted or envisaged to address the discrimination historically suffered by indigenous peoples in employment and occupation, including measures promoting educational opportunities respectful of their particular needs. It also reiterates its request for a copy of the study on indigenous peoples’ rights, undertaken by the South African Human Rights Commission, and for information on whether the official policy on recognizing vulnerable indigenous communities has been adopted. Should this be the case, please provide a copy of this policy.

Part IV of the report form. Enforcement. The Committee notes the decision by the Labour Court of Johannesburg of March 2008, highlighting that irregular migrant workers enjoy the right to fair labour practices laid down in article 23 of the Constitution, and the protections enshrined in the Labour Relations Act. The Committee requests the Government to continue to provide information on relevant court rulings. Noting the difficulties faced by the most disadvantaged groups, including indigenous peoples, in accessing justice, the Committee again requests the Government to provide information on any measures taken or envisaged to address this problem.

Part V. Practical application. The Committee notes from the information supplied by the Government on the activities of the Commission of Gender Equality, that the Commission is in the process of holding talks with the House of Traditional Leaders as a response to the violent killing of two women in Mthonjana. The Committee requests the Government to continue to provide information on the activities undertaken by the Commission of Gender Equality, including information on whether the Commission 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. Please also provide information on any initiatives carried out by the Office of the Status of Women and the Commission for the Protection of the Rights of Cultural, Religious and Linguistic Communities to promote equality of opportunity and treatment in employment and occupation, irrespective, in particular, of sex, race, colour, national extraction and social origin.