Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes the information in the Government’s first report on the Convention. It notes with interest the legislative initiatives taken by the Government relevant to the application of the principle of non-discrimination, particularly the enactment of the 1990 Constitution, the Racial Discrimination Prohibition Act No. 26 of 1991, the Labour Act No. 6 of 1992 and the Affirmative Action (Employment) Act No. 29 of 1998.

1. Article 1(1)(a) and (3) of the Convention. Prohibition of discrimination. The Committee notes that section 10(2) of the Constitution contains a general prohibition of discrimination based on "sex, race, colour, ethnic origin, religion, creed or social or economic origin" and that the Preamble of the Labour Act No. 6 of 1992 provides for regulation free from discrimination on the same grounds. Furthermore, the Racial Discrimination Prohibition Act No. 26 of 1991 prohibits discrimination on the basis of race, colour and ethnic origin with respect to employment, conditions of employment and dismissal. The Committee also notes the various sections under Part XIII of the Labour Act dealing with complaints in relation to unfair discrimination. It notes in particular that section 107(3) of the Labour Act provides a definition of direct sex-based discrimination with regard to conditions contained in an employment contract and that section 107(4) of the Labour Act lays down criteria for complaints of unfair discrimination in employment and occupation based on all the grounds in Article 1(1)(a) of the Convention. In addition, section 107(5)(b) defines employment and occupation in accordance with Article 1(3) of the Convention. Nonetheless, the Committee observes that there is no provision in the Labour Act explicitly prohibiting direct and indirect discrimination in employment and occupation with respect to all the Convention’s grounds. In absence of such a provision, the Committee asks the Government to provide information, including complaints received under Part XIII of the Labour Act, on how the abovementioned provisions and legislation are applied in practice. The Government may also wish to consider revising the Labour Act to prohibit explicitly direct and indirect discrimination in accordance with Article 1(1)(a) and (3), of the Convention.

2. Article 1(1)(a). Sexual harassment. The Committee notes that section 107(b) of the Labour Act 1992 lays down the criteria for complaints of harassment in employment based on, among other grounds, sex. However, noting the absence of an explicit provision in the Labour Act defining and prohibiting sexual harassment in the workplace, the Committee refers to its 2002 general observation on this Convention and asks the Government to indicate whether it envisages inserting such a provision in the Labour Act. In the meantime, the Government is asked to provide information, including complaints, on how sexual harassment is prohibited and prevented in both the private and public sectors.

3. Article 1(1)(b). Additional grounds. The Committee requests the Government to indicate whether the additional grounds set forth in the Labour Act (economic status, marital status, sexual orientation, family responsibilities and disability) are to be covered under this Article of the Convention.

4. Article 1(2). Inherent requirements of the job. The Committee notes that pursuant to section 107(2) of the Labour Act a person shall not be regarded to have been unfairly discriminated against, if that person is selected for purposes of employment or occupation according to reasonable criteria, including, but not limited to, the ability, capacity, productivity and conduct of that person or in respect of the operational requirements and needs of the particular occupation or work in the industry in question. Please provide information on how section 107(2) is applied in practice.

5. Article 2. National policy on equality of treatment and opportunity. The Committee notes with interest that both the Constitution and the Labour Act provide for affirmative action with respect to persons who have been disadvantaged by past discriminatory laws, policies or practices. In addition, the Affirmative Action (Employment) Act of 1998 provides for equal employment opportunities for women, racial and ethnic groups and persons with disabilities. Please provide practical information, such as reports and data, and any other relevant material, indicating the impact of the legislation on the promotion of equality of opportunity and treatment in respect of access to employment, vocational training and conditions of work with a view to eliminating any discrimination based on the grounds covered by the Convention, and in particular sex, race, colour and national extraction. Noting further that the Government has adopted a National Gender Policy and a National Gender Plan of Action, the Committee asks the Government to furnish copies of them.

6. Article 2. Application of national policy to all workers. The Committee notes that according to section 20(1) of the Affirmative Action (Employment) Act the minister identifies the employers who, as "relevant employers", shall comply with the Act. It asks the Government to provide a list of employers or categories of employers in the private sector that have been identified as relevant employers. The Committee notes that the Labour Act does not apply to workers in export processing zones (EPZs) but that under section (2) of the Export Processing Zones Act 1995 the Minister can make regulations relating to basic conditions of employment and termination of employment. It asks the Government to provide copies of any such regulations and to indicate how EPZ workers are protected against discrimination in accordance with the provisions of the Convention.

7. Article 3(a). Cooperation with social partners and other appropriate bodies. The Committee notes that the Labour Act provides for the establishment of the Labour Advisory Council and asks the Government to provide information on the manner in which the Council promotes the principle of the Convention in its consultations on national policy relating to employment and vocational training. The Committee would also be grateful if the Government would supply information on the activities of the Employment Equity Commission (EEC) in promoting the observance and acceptance of the national policy, including its activities in assisting employers to draft affirmative action plans and in disseminating information on the requirements of the Affirmative Action (Employment) Act.

8. Article 3(b). Educational programmes. The Government is requested to provide information on any public education or information programmes, including by the Employment Equity Commission, in place to promote the acceptance and observance of the national policy on equality of opportunity and treatment in employment and occupation.

9. Article 3(d). Pursuance of the policy with respect to the public service. The Committee notes that section 20(2)(a)(ii) of the Affirmative Action (Employment) Act allows the minister to name as relevant employer any office, ministry or agency as set out in the Public Service Act No. 13 of 1995. The Committee asks the Government to provide a copy of the Public Service Act and a list of relevant public service employers. Please also supply practical information, including statistics disaggregated by sex, that permit the Committee to assess how the principle of the Convention is ensured in the public service.

10. Article 3(e). Vocational training and guidance. The Committee notes the Government’s statement that the Employment Policy with regard to vocational training shall be concentrated on active labour market policies for the elimination of discriminatory practices and inequality in access to education and training. The Government is asked to provide a copy of the Employment Policy and further details regarding its practical implementation as well as information on practical steps undertaken to ensure the observance of the principle of the Convention in vocational training and placement services under the direction of a national authority.

11. Article 4. Individuals suspected or engaged in activities prejudicial to the security of the State. 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.

12. Article 5. Affirmative action with respect to women, racial and ethnic groups. The Committee notes that the Constitution and the Labour Act permit taking affirmative action measures for certain persons who have been disadvantaged in the labour field by past discriminatory laws and practices. It requests the Government to furnish further details as to what particular kinds of actions and programmes are contemplated and the groups concerned, as well as information about any such efforts already in place or planned. Furthermore, the Committee notes with interest that sections 23(1) and 27(1) of the Affirmative Action (Employment) Act 1998 respectively require relevant employers in the private and public sectors to prepare and implement affirmative action plans and affirmative action reports concerning women, racial and ethnic groups. Noting further that the EEC is undertaking an affirmative action impact study of both the public and private sectors, the Committee would appreciate receiving information on the results of this study, when completed.

13. Part III and IV of the report form. Enforcement. The Committee notes the EEC’s role in reviewing affirmative action plans and reports and ensuring compliance with the Affirmative Action (Employment) Act. It also notes that the EEC, when disapproving affirmative action reports, may refer affirmative action reports to a review panel (section 35) for a final order. The Committee asks the Government to provide information on the number of cases referred by the EEC to the review panel, and on any complaints received and decisions made by the labour courts by any other courts or administrative bodies that relate to matters of discrimination in employment and occupation on any of the Convention’s grounds.

14. Part V of the report form. Practical application and statistics. Please provide the information requested in Part V of the report form on the practical application of the Convention. Such information could include available statistical data disaggregated by sex, race, ethnicity and religion on all aspects of employment and vocational training, reports, guidelines or publications, copies of legislation, as well as any other information that may enable the Committee to assess how the provisions of the Convention are applied in practice.