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

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

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.

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

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.

Articles 1 and 2 of the Convention. Discrimination based on race, colour and national extraction. Affirmative action. The Committee notes with interest the Government’s indication, in its report, that it is implementing various initiatives in order to strengthen its efforts in promoting equality of treatment and opportunities of all designated groups, such as: (1) conducting annual employment equity workshops nationally with workers, employers and their representative organizations and other interested parties; and (2) forging strategic partnerships between the Commission for Employment Equity (CEE) and various key institutions such as the Commission for Gender Equality, the South African Human Rights Commission, the National Skills Authority, the Broad-Based Black Economic Empowerment Commission, the Department of Youth and Persons with Disabilities in the Presidency, the Commission for Conciliation, Mediation and Arbitration (CCMA), the Public Employment Services and the Inspections and Enforcement Services Branches of the Department of Employment and Labour. The main objectives of these partnerships are to raise awareness on the right to equality, dignity and fair treatment and to ensure there is coherence in the various policy instruments and implementation. The Government adds that the labour inspectors conduct employment equity inspections to assess the legal compliance with the Employment Equity Act, 1998 (EEA).

The Committee notes that the Government refers to the process of amending the Employment Equity Act 1998 with a view to: (1) empowering the Minister of Employment and Labour to regulate sector specific employment equity targets in order to address the slow pace of transformation in the labour market until now and achieve equitable representation of the designated groups, namely, black people, women, and persons with disabilities; (2) exempting employers with less than 50 employees from implementing Chapter III of the EEA on affirmative action; and (3) regulating assessment criteria for the issuing of employment equity compliance certificates as a prerequisite for accessing state contracts (section 53 of the EEA). In this regard, the Committee further notes that the Employment Equity Amendment Bill was adopted by Parliament (National Assembly and National Council of Provinces) on 17 May 2022. The Committee notes that the workers’ representatives within NEDLAC welcome the amendments of the EEA, but underline that the main issue is the non-implementation of section 53. The Committee also notes that the Chief Director of Statutory and Advocacy Services within the Department of Employment and Labour indicated in March 2022 that, in the past financial year, 60 per cent of employers had been referred to prosecution for failure to comply with the employment equity legislation; and that the review process of the Director-General of the Department of Employment and Labour (under section 43 of the EEA) revealed a 94 per cent non-compliance rate with the EEA. It further notes the information, shared by the Minister of Employment and Labour and the Chairperson of the CEE on the launch of the 22nd CEE Annual Report (April 2021-March 2022), that the labour market compliance levels with the EEA “remain[ed] regretfully low”, echoing in this the findings of the CEE. White and Indian population groups remained over-represented at top management, senior management and professionally qualified/middle management levels, against their Economically Active Population (EAP) rate. White people represented 63.2 per cent of top managers and 51.4 per cent of senior managers whereas the African and Coloured population groups were grossly under-represented at these levels (even at the professionally qualified/middle management level, the African population group was approximately 33 per cent below their EAP rate). It is worth noting that, at the top management level, the representation of the White population group was approximately seven times their EAP rate in the private sector (and just below their EAP in the public service) whereas the African population group representation was nearly six times below their EAP rate in the private sector (and almost at their EAP rate in the public service). The same pattern is reproduced at senior management level. As for the representation of the Coloured population group at top management level, it was far below their EAP rate in the private sector and slightly above their EAP rate in the public service. The Minister also noted with concern “the continued and flourishing slave conditions in the labour market, wherein the immigrants were being exploited”.

In view of the above, the Committee asks the Government to continue to strengthen its efforts in promoting equality of treatment and opportunities in employment and occupation of all the designated groups and to provide information on: (i) the results achieved in the transformation of the labour market towards a more equitable representation of the designated groups (including statistical data as shown in the annual report of the Commission for Employment Equity); and (ii) the assessment of its affirmative action measures with a view to determining whether they remain effective and are in line with the principle of non-discrimination.

It also asks the Government to provide information on: (i) the actions taken within the framework of the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance, 2019–2024, the obstacles identified and the results achieved; and (ii) the implementation of section 53 of the Employment Equity Act as amended (measures put in place to evaluate the assessment criteria for the issuing of employment equity compliance certificates and number of certificates denied based on this assessment).

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the observations made by the Solidarity Trade Union (South Africa), dated 12 May 2017.

Articles 2 and 3 of the Convention. Practical measures. The Committee notes the measures taken by the Government to raise awareness among workers’ and employers’ organizations and the wider public of the Employment Equity Act and the Employment Equity Regulations 2014, as well as the Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value. The Government also reports on capacity building of the members of the Commission for Conciliation, Mediation and Arbitration (CCMA) and of the labour inspectors and other officials of the Department of Labour in this regard. The Committee encourages the Government to continue to raise awareness and strengthen capacity regarding the employment equity legislation, among workers and employers and their organizations, as well as the enforcement authorities, and to provide information on the measures taken in this regard. Recalling its previous comments on income differentials between the designated group, the Committee also asks the Government to provide information on the measures adopted to address these differentials and to promote the use among employers of the Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value to implement pay/remuneration policies and practices free from unfair discrimination. The Government is also asked to provide information on concrete cases in which disparities have been addressed by employers.

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. With reference to its previous comments regarding claims brought under the Employment Equity Act of 1998 (EEA), the Committee notes the information provided by the Government on the number of sexual harassment cases that have been handled by the CCMA. The Committee asks that the Government provide also information on the use made by employers of the Code of Good Practice on the Handling of Sexual Harassment Cases to develop policies on sexual harassment, as well as any other measures adopted to prevent and address sexual harassment in the workplace.

Article 1(1)(b). HIV status. The Committee reiterates its request to the Government to provide information on the measures adopted in the framework of the National Strategic Plan on HIV for 2012–16 to prevent and address discrimination in employment and occupation. It also asks the Government to indicate whether any new such Strategic Plan has been adopted, and to provide a copy with its next report.

Article 2. National equality policy. Scope of application. The Committee recalls that the Convention protects all persons against discrimination in employment and occupation, and that members of the National Defence Force, National Intelligence Agency and South African Secret Service workers are excluded from the Employment Equity Act. The Government had indicated that the labour issues can be negotiated within the Military Bargaining Council (MBC). The Committee is bound to repeat its previous request to the Government to indicate how it is ensured that members of the National Defence Force, National Intelligence Agency and South African Secret Service enjoy adequate protection against discrimination in employment and occupation, including the opportunity to file complaints in the case of violations of their rights.

Equality between men and women. The Committee notes from the Commission for Employment Equity’s Annual Report 2016–17 that the representation of women in top management positions has hardly changed at just over 20 per cent, with the majority of them being White women. White men are overrepresented in all sectors of the economy at the top management level. The Committee notes that Black women comprise between 40 per cent to over 53 per cent of the unskilled positions in catering, accommodation and other trades, in finance and business services, in retail and motor trade, in community, social and personal services, and in wholesale trade, commercial agents and allied services. In contrast, White and Indian women represent less than 1 per cent of the unskilled workforce in these occupations. The Committee further notes that the United Nations Committee on the Elimination of Racial Discrimination, in its concluding observations, expressed concern at the multiple forms of discrimination faced by Black and marginalized women and girls who are strongly affected by poverty and lack of access to basic services, in particular housing, education, health care and equal employment opportunities (CERD/C/ZAF/CO/4-8, 5 October 2016, paragraph 22). The Committee once again asks the Government to identify the specific vocational training and promotional measures adopted, including by the Commission on Gender Equality, to address gender occupational segregation and to increase 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. Recalling that the Women Empowerment and Gender Equality Bill was being examined by Parliament, the Committee once again asks the Government to provide information on any developments in this regard.

Article 3(e). Access to vocational training. In the absence of any further information on this matter, the Committee must reiterate its previous request to the Government to identify the measures taken in the framework of the National Skills Development Strategy III 2011–13 and their impact on the inclusion in the labour market of workers from the designated groups, namely “black” persons, women, workers with disabilities and young people. The Government is also asked to provide information on any other strategy adopted after 2013 and on the concrete measures taken by employers in the framework of the employment equity plans for the skills training of workers.

Indigenous peoples. The Committee notes that the United Nations Committee on the Elimination of Racial Discrimination, in its concluding observations, expressed concern that indigenous peoples continue to suffer from extreme poverty and marginalization and face discrimination. The Committee further notes that the Traditional and Khoi-San Leadership Bill was introduced into Parliament in 2015 (CERD/C/ZAF/CO/4-8, paragraph 24). The Committee once again asks the Government to provide information on the concrete measures adopted for the promotion of equality of opportunities and treatment in employment and occupation of indigenous peoples, including through education and vocational training. The Government is also asked to provide information on any developments regarding the Traditional and Khoi-San Leadership Bill, and supply a copy of the Bill, once adopted.

Employment equity plans. The Committee recalls the measures previously taken to strengthen the enforcement mechanisms of the EEA, as amended, including section 42(1)(c) which provides that employers must demonstrate that reasonable steps have been taken to implement employment equity plans and train and appoint qualified people from designated groups. The Committee notes that the Government does not provide information regarding further measures taken in this regard but indicates that additional mechanisms to strengthen monitoring of employers’ compliance are being developed which will assist in implementing section 53 of the EEA relating to State Contracts and the Certificate of Compliance. The Government also reports that mechanisms are being explored to assess substantive compliance with the EEA in order to expedite the promotion of employment equity in the various workplaces. The Committee asks the Government to provide information on the practical application of sections 42(1)(c) and 53 of the EEA, as amended, and on the difficulties encountered and the specific steps taken. In this regard, the Government is asked to include 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. The Committee also asks the Government to provide further information on the additional mechanisms to strengthen compliance with the EEA.

Article 5. Special measures. Affirmative action. The Committee recalls the obligation of employers, by virtue of section 21 of the EEA and section 10 of the Employment Equity Regulations, to submit information every year on the barriers to employment and the affirmative action measures adopted to overcome them. The Committee notes from the 17th Annual Report of the Employment Equity Commission that the number of employers submitting employment equity reports continues to increase. However, the Committee notes the low number of employees covered as compared to the national population. It also notes that according to the Employment Equity Commission a number of implementation challenges explain the slow progress made under the EEA, namely: the fact that employment equity is still not recognised by a number of employers as a business imperative and not yet integrated into business strategies and plans to promote equity; the absence of prescribed Employment Equity targets and benchmarks to be met by various employers in various sectors to ensure that there is equity in their various workplaces; and the inadequate monitoring of compliance by employees and trade unions in relation to the implementation of the agreed Employment Equity targets set by employers in the Employment Equity plans. The Committee asks the Government to continue 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 groups, namely Black people, women and persons with disabilities, and on any steps taken or proposed to address the implementation challenges of the EEA. The Government is also asked to provide specific information on the number and type of reasonable accommodation measures adopted in favour of workers with disabilities.

Enforcement. The Committee also notes the information provided on the cases addressed by the CCMA and the Labour Court regarding the application of the Employment Equity Act. The Committee asks the Government to provide information on efforts to strengthen mechanism for assessing compliance with the equality legislation, and the results achieved. It also requests the Government to continue to provide information on any discrimination cases addressed by the Labour Court and the Commission for Conciliation and Arbitration with respect to the principle of equality and non-discrimination in employment and occupation. The Government is also asked to provide information on any cases handled by the Commission for Employment Equity.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the observations made by the Solidarity Trade Union (South Africa) received 12 May 2017 and the Government’s response received 17 August 2017.

Articles 1 and 2 of the Convention. Discrimination based on race, colour and national extraction. Affirmative action. The Committee notes that in its observations, the Solidarity Trade Union raises concerns about the application of the Government’s affirmative action policy, including the Employment Equity Act (EEA), and the Broad-Based Black Empowerment (BBE) Act. While recognizing the need for special measures, including affirmative action, on account of the legacy of the system of apartheid, the Solidarity Trade Union emphasizes that such measures should be designed within the spirit of the Constitution and should not create new forms of racial discrimination. The Union maintains that the Government undermines the constitutional obligations of non racialism and the right to equality through a system of racial representativity which is endorsed by the courts and which is aimed at achieving a workforce which reflects the economically active population. The Union provides examples of court decisions and draws particular attention to the decision of the Constitutional Court (Case CCT 78/15) in Solidarity v. Department of Correctional Services, [2016] ZACC 18 of 16 July 2016 confirming that the EEA seeks to achieve a constitutional objective that every workforce or workplace should be broadly representative of the people of South Africa. Arguing that the affirmative action programme is not of a temporary nature, the Solidarity Trade Union submits examples of employment equity plans that have been implemented by the Department of Correctional Services during the past 16 years, and calls for a “sunset clause”. While supporting the constitutional objective of a civil service that is “broadly reflective” of the people of South Africa, the Solidarity Trade Union argues that other factors in furtherance of this objective should be taken into consideration, including the ability of the candidates to do the work and the specific demographics of the diverse communities.

The Committee notes that, in its reply, the Government emphasizes that article 9(2) of the Constitution makes explicit provision for affirmative action measures, and affirms that its affirmative action programme is a temporary measure until reasonable progress is made towards achieving the purpose of the EEA, i.e. the elimination of unfair discrimination and the achievement of the equitable representation of designated groups across all occupational levels in the workplace. Regarding the Solidarity Trade Union’s call for a “sunset clause”, the Government responds that the EEA already has an entrenched “sunset clause” against which the implementation of the Act should be measured, based on goal oriented flexible target setting, rather than on strictly time-bound and quota oriented goals that create absolute barriers. The Committee further notes the Government’s indication that with the entry into force in 2014 of the Employment Equity Amendment Act No. 47 of 2013, the need has arisen to review all provisions affected by the amendment and that a draft amended Code of Good Practice on the preparation, implementation and monitoring of the Employment Equity Plan was published on 30 September 2016. The Government indicates that, despite the comprehensive legal framework in place, the pace of change has been slow. According to the Government, there have been a number of implementation challenges which have contributed to this situation, including, among other things, resistance by employers to embracing employment equity.

The Committee notes that the Government provides statistics from the annual report of the Employment Equity Commission (EEC) which indicate that in 2016 certain groups were still visibly under-represented in certain positions. It notes, among other things, that in 2016 the economically active population was distributed as follows: African: 78 per cent (42.8 per cent men and 35.2 per cent women); Coloured: 9.8 per cent (5.3 per cent men and 4.5 per cent women); Indian: 2.8 per cent (1.8 per cent men and 1 per cent women); and White: 9.5 per cent (5.3 per cent men and 4.2 per cent women). The EEC report also shows that White persons continue to be over-represented at the higher occupational levels, in top and senior level management (in 2016, 14.4 per cent African: 4.9 per cent Coloured; 8.9 per cent Indian: 68.5 White at the top management level; and 22.1 per cent African, 7.7 per cent Coloured, 10.6 per cent Indian and 58.1 per cent White at the senior management level). In contrast, the African and Coloured groups are over-represented in the semi-skilled and unskilled professions (in 2016, 76.1 per cent of the positions in semi-skilled and 83.2 per cent in unskilled occupations were occupied by Africans, and respectively 12.3 per cent and 11.4 per cent by Coloured). Africans continue to be the most represented group in government and state-owned companies and gender gaps persist in the representation of especially Black women and persons with disabilities particularly in the middle-to-upper occupational levels.

The Committee recognizes the particularly complex reality of South Africa where racial segregation has been deeply entrenched during apartheid including in employment and occupation. The Committee has previously noted that in order to give effect to article 9(2) (affirmative action measures) of the Constitution, section 2 of the EEA places an obligation on “designated employers” to implement “affirmative action measures to redress disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels in the work force”. The Committee notes that the judgment of the Constitutional Court reiterates earlier case law supporting the affirmative action policy of the Government. The Committee recalls that in the context of measures to implement the national equality policy required under Article 2 of the Convention, treating certain groups differently may be required to eliminate discrimination and to achieve substantive equality for all groups covered by the Convention (General Survey on the fundamental Conventions, 2012, paragraph 844). The Convention therefore allows for affirmative action measures which are aimed at ensuring equality of opportunity in practice, taking into account the diversity of situations of the persons concerned, so as to halt discrimination, redress the effects of past discriminatory practices and restore a balance. They are part of a broader effort to eliminate all inequalities and an important component of the national equality policy, required under Article 2 of the Convention. To be in accordance with the Convention, such measures must genuinely pursue the objective of equality of opportunity, be proportional to the nature and scope of the protection or assistance needed or of the existing discrimination, and be examined periodically in order to ascertain whether they are still needed and remain effective. Affirmative action grounded on prior consultation and the consent of the stakeholders, including workers’ and employers’ organizations, helps to ensure that the measures taken are broadly accepted, effective and in line with the principle of non-discrimination (see General Survey, 2012, paragraph 862). Taking into account the unique situation of South Africa and the particular challenges the Government faces in implementing special measures to address inequalities, the Committee asks the Government to strengthen its efforts in promoting equality of treatment and opportunities in employment and occupation of all the designated groups, irrespective of race and colour, and of the inclusion of African and Coloured workers in the labour market, and to report on the action taken in this regard. The Committee also asks the Government, in consultation with workers’ and employers’ organizations and other stakeholders, to examine the impact of its affirmative action measures on all the affected groups, especially the most disadvantaged and vulnerable among them, in the spheres of employment and occupation with a view to determining whether the measures continue to pursue the objective of equality of opportunity, remain effective, and are in line with the principle of non-discrimination.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Article 1(1)(a) of the Convention. Sexual harassment. In its previous comments, the Committee requested the Government to provide information on the Code of Good Practice on the Handling of Sexual Harassment Cases, the extent that it had been used by employers to develop their own policies and the impact of such policies on preventing and addressing sexual harassment. The Committee notes the Government’s indication that section 10 of the Employment Equity Act of 1998 (EEA), as amended, provides that an employee who is a victim of sexual harassment may refer a claim to the Commission for Conciliation, Mediation and Arbitration with a right of appeal to the Labour Court. The Committee notes, however, that no concrete information was provided in reply to its previous request. The Committee once again requests the Government to provide information on the application of the Code of Good Practice on the Handling of Sexual Harassment Cases; the manner in which it has been used by employers to develop their own policies on sexual harassment; any other measure adopted to prevent and address sexual harassment in the workplace; and any relevant judicial or administrative decisions regarding this issue, the remedies granted and the sanctions imposed.

Article 1(1)(b). HIV and AIDS status. The Committee notes the information provided by the Government concerning the measures adopted following the decision rendered by the Labour Court of Pretoria in May 2009 relating to unfair dismissal and discrimination on the grounds of HIV status. In this respect, the Committee notes that the South African National Defence Force (SANDF) HIV policy has been revised. Moreover, the Code of Good Practice on HIV and AIDS has been amended and a new National Strategic Plan on HIV for 2012–16 has been adopted. The Committee requests the Government to continue providing information on judicial and administrative decisions concerning discrimination in employment and occupation based on HIV status, as well as on the measures adopted in the framework of the National Strategic Plan on HIV for 2012–16 to prevent and address discrimination in employment and occupation.

Article 2. National equality policy. In its previous comments, the Committee requested the Government to provide information on the implementation of the Promotion of Equality and Prevention of Discrimination Act (PEPUDA) with respect to workers excluded from the EEA, namely members of the National Defence Force, National Intelligence Agency and South African Secret Service. It further requested the Government to provide information on the investigations conducted by the Human Rights Commission, and on any activities carried out by this body for the promotion of the principle of equality of opportunity and treatment in employment. The Committee notes the Government’s indication that, according to its complaints handling procedures, the Human Rights Commission does not have the mandate to deal with labour disputes generally. The Government further indicates that labour issues can be negotiated within the Military Bargaining Council (MBC) which negotiates to reach agreement of mutual interest and to solve disputes between the Ministry of Defence and the military trade unions admitted to the MBC. In case of persisting conflict, the parties may go to the Military Arbitration Board (MAB) for resolution. With respect to the complaints dealt with by the Human Rights Commission, the Government indicates that in 2014 it examined 485 complaints concerning labour relations. Recalling that the Convention protects all persons against discrimination in employment and occupation, the Committee requests the Government to indicate how it is ensured that members of the National Defence Force, National Intelligence Agency and South African Secret Service enjoy adequate protection against discrimination in employment and occupation, including the possibility to file complaints in case of violations of their rights.

Equality between men and women. The Committee previously requested the Government to provide information on the measures taken to raise awareness regarding gender discrimination in employment and occupation, address occupational segregation and increase the participation of women, particularly black women, in the labour market. The Committee notes that, according to the Government, the Department of Labour conducts employment equity roadshows on an annual basis aimed at educating employers about policy changes and the state of the labour market with respect to race, gender and disability and to counter stereotypes in terms of those grounds. The Commission on Gender Equality (CGE) has issued recommendations concerning women’s participation in national and local governments. The Government further refers to the adoption of the Women Empowerment and Gender Equality Bill, which is being examined by Parliament. The Bill will facilitate the empowerment of women and decent work in rural areas, mainstream gender in land reform programmes, improve the housing and living conditions of women in rural areas and their equal representation and meaningful participation in traditional councils. The Committee notes from the 15th annual report of the Commission for Employment Equity (15th CEE annual report) that women represent only 20.4 per cent of top management positions, the majority of whom are white women. Women are also more represented in the services sector (30.7 per cent). The representation of black, coloured and Indian women at top management level is very low. According to the report, African and coloured women continue to bear the brunt of low-skilled jobs and are hence confined to the lower occupational levels. The Committee requests the Government to provide information on any developments concerning the adoption of the Women Empowerment and Gender Equality Bill. The Committee also requests the Government to indicate the specific vocational training and promotional measures adopted, including by the Commission on Gender Equality, to address gender occupational segregation and increase the participation of women, in particular black and coloured women, in the labour market, including in those occupations mainly carried out by men, and at the senior and top management levels.

Equality in employment and occupation irrespective of race and colour. In its previous comments, the Committee requested the Government to provide information on income differentials between designated groups and on the measures taken to address occupational segregation based on race and colour and to promote equality in employment and occupation irrespective of race and colour. The Committee notes the Government’s indication that income differentials have been assessed through the Director-General review process. The Committee further notes that, during the Employment Equity and Transformation Indaba held in 2014, “equal pay for work of equal value” was addressed, as well as the need for employers to re-evaluate their remuneration policies to ensure that employees are paid the same. Moreover, according to the 15th CEE annual report, over 200 employers in the private sector and in government have been assessed since 2010. Employers have committed to undertake affirmative action measures related to equal pay, including conducting salary audits to identify income disparities and set aside budgets to address anomalies. The Government adds that employment equity roadshows, already initiated, have continued. The Committee also notes from the 15th CEE annual report that, according to the information collected from the 24,291 employment equity reports received in 2014, the pace of transforming workplaces, taking into account the representation of the population in the country, is moving very slowly. Relative progress is smaller at the higher occupational levels, where white persons continue to be over-represented (in 2014, 3.6 per cent African, 4.7 per cent coloured, 8.4 per cent Indian and 70 per cent white at the top management level, and 20.5 per cent African, 7.2 per cent coloured, 9.9 per cent Indian and 59.3 per cent white at the senior management level). Black people are starting to become better represented at the skilled technical level (in 2014, 58 per cent African, 11.4 per cent coloured, 58 per cent Indian and 22.7 per cent white). Africans are the most represented group in government and state-owned companies. The Committee requests the Government to continue providing information on the proactive measures taken for the promotion of equal opportunities and treatment in employment and occupation for all workers, irrespective of race and colour, and the impact of those measures in the inclusion of African and coloured workers in the labour market. The Committee also requests the Government to provide information on the measures adopted to address income differentials and expresses the hope that the Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value, recently adopted, will serve to implement pay/remuneration policies and practices free from unfair discrimination. Please provide information on concrete cases in which disparities have been addressed by employers.

Employment equity plans. The Committee previously requested the Government to provide information on the measures taken to monitor employers’ compliance with the remedial action incorporated into the employment equity plans and on relevant cases of non-compliance brought before the Labour Court. The Committee notes that the EEA, as amended, has strengthened enforcement mechanisms to ensure successful prosecutions and facilitate the access of complainants to the procedures. This will bring more employers before the Labour Court. The Committee notes that, under section 42(1)(c) of the EEA, as amended, in order to evaluate whether the employer is implementing employment equity, the employer must demonstrate that reasonable steps have been taken to implement the employment equity plan and to train and appoint qualified people from designated groups. The Committee requests the Government to provide information on the practical application of section 42(1)(c) of the EEA, as amended, the difficulties encountered and the concrete measures taken, including 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.

Access to vocational training. The Committee previously requested the Government to provide information on the measures taken to address equality of opportunity through vocational training with regard to affected groups, such as black persons, women, persons with disabilities and youths. The Committee notes that the EEA, as amended, provides that the employer must take reasonable steps to train suitably qualified persons from the designated groups. The Committee notes that the Human Sciences Research Council (HSRC) has undertaken research to assess the progress made in skills development since the implementation of the National Skills Development Strategy II. The research, which focused on the unemployed, revealed that the target of training 450,000 unemployed persons was surpassed. Out of 251 persons interviewed, 75 per cent managed to find employment after receiving training. The Government further refers to the National Skills Development Strategy III 2011–13, which aimed to promote a skills development system that responds to the needs of the labour market with social equity that takes into account existing inequalities. Recalling that providing vocational guidance and taking active measures to promote access to education and training is essential to broaden the range of occupations from which men and women are able to choose, the Committee requests the Government to provide concrete information on the measures adopted in the framework of the National Skills Development Strategy III 2011–13 and their impact on the inclusion in the labour market of workers from the designated groups, namely black persons, women, workers with disabilities and young people. Please provide information on any other strategy adopted after 2013 and on the concrete measures adopted by employers in the framework of the employment equity plans for the skills training of workers.

Article 5. Special measures. The Committee previously requested the Government to provide information on the number and content of the affirmative action measures taken by employers to address discrimination against black people and women in employment and occupation. The Government indicates that the affirmative action measures have included leadership development programmes targeting mainly women. Noting that, in accordance with section 21 of the EEA and section 10 of the Employment Equity Regulations, employers have to submit information every year on the barriers to employment and the affirmative action measures adopted to overcome them, the Committee requests the Government to continue providing 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 groups, namely black people, women and persons with disabilities. The Committee also requests the Government to provide concrete information on the number and type of reasonable accommodation measures adopted in favour of workers with disabilities.

Indigenous peoples. The Committee previously requested the Government to provide information on any special measures aimed at addressing discrimination against indigenous peoples in employment and occupation, measures promoting educational opportunities, in particular for children from the Khomani San community, and any developments in the recognition of vulnerable indigenous communities. The Committee notes the Government’s indication that the Khomani San community has been receiving assistance from the South African San Institute, which has launched numerous projects to improve their economic situation. Measures have also been adopted, including through legislation, for the protection and development of vulnerable groups, such as the Khoi-San. The Committee requests the Government to provide information on the concrete measures adopted for the promotion of equality of opportunities and treatment in employment and occupation of indigenous peoples, including through education and vocational training. Please provide specific information on the measures adopted for the protection of vulnerable communities.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Legislation. The Committee notes with interest the adoption of the Employment Equity Amendment Act, 2013, amending the Employment Equity Act, 1998, as well as the Employment Equity Regulations, 2014, and the Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value of 1 June 2015. The Committee notes the Government’s indication that the main purposes of the amendments to the Employment Equity Act, 1998, are to be more specific on the principle of equal pay for work of equal value and to strengthen the compliance and enforcement mechanisms in the Act, including by increasing fines. The Committee notes that section 6(1) of the Employment Equity Act, 1998, as amended in 2013, includes in the list of unfair grounds of discrimination, a provision on discrimination on the basis of arbitrary grounds; that the burden of proof in relation to unfair discrimination has now been made clearer for both listed and arbitrary grounds, and that the Commission for Conciliation and Arbitration is now available to arbitrate on discrimination cases, including sexual harassment cases. The Committee requests the Government to provide information on the implementation in practice of the Employment Equity Act, 1998, as amended in 2013, the Employment Equity Regulations, 2014, and the Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value with respect to the aspects covered by the Convention. The Committee also requests the Government to provide information on any other arbitrary ground considered by administrative or judicial decisions, as well as any discrimination cases addressed by the Commission on Human Rights, the Commission for Employment Equity, the Labour Court and the Commission for Conciliation and Arbitration with respect to the principle of equality and non-discrimination in employment and occupation.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Legislative developments. The Committee notes the Government’s indication that the Employment Equity Regulations were amended in July 2009, in order to better implement employment equity at the workplace by simplifying data collection instruments and improving the quality of the data collected. The Committee also notes the Government’s indication that amendments to the Employment Equity Act (EEA) are underway and that following these amendments, the Employment Equity Regulations will once again be amended. The Committee notes from the Commission for Employment Equity’s (CEE) tenth annual report that amendment proposals include adding provisions that deal explicitly with wage discrimination on the basis of race and gender and simplifying enforcement provisions. The Committee asks the Government to provide information on the implementation of the revised Employment Equity Regulations, and in particular their impact on better implementing employment equity in the workplace. The Committee also requests information on the status of the amendments to the EEA and on any future developments concerning amendments to the Employment Equity Regulations.

Article 1(1)(a) of the Convention. Sexual harassment. The Committee notes from the Commission on Gender Equality’s annual report, that in 2009–10 three complaints relating to sexual harassment in the workplace were filed. Recalling its previous comments, the Committee reiterates its request for information on the Code of Good Practice on the Handling of Sexual Harassment Cases, including regarding the extent to which it 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. The Committee also asks the Government to provide information on any other measures adopted or envisaged to prevent and address sexual harassment in the workplace. Please continue to provide information on the outcome of any relevant judicial or administrative decisions regarding this issue including the outcome of complaints of sexual harassment referred to in the Annual Report of the Commission of Gender Equality (2009–10).

Article 2. National equality policy. The Committee notes the Government’s indication that unfair discrimination in the workplace is covered by the EEA and is an issue under the Department of Labour and the CEE established by the EEA. The Committee recalls section 4 of the EEA which excludes the following workers from the application of the Act: members of the National Defence Force; the National Intelligence Agency; and the South African Secret Service. However, these categories of workers appear to be covered by the Promotion of Equality and Prevention of Discrimination Act (PEPUDA) and therefore can file complaints to the Human Rights Commission (section 5(3)). Noting that the schedule providing the list of unfair practices refers to labour and employment, including equal access to employment opportunities (section 29, PEPUDA), the Committee requests information on the implementation of the PEPUDA with regard to workers excluded from the EEA. Please provide information on any 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 in employment and occupation.

Equality between men and women. The Committee notes from the statistical data provided by the Government that women continue to be under represented in top and senior management positions (18 per cent and 26.7 per cent). White males still dominate top management positions in the workplace and women are more widely represented in administrative functions. Recalling its previous comments, the Committee notes that there are still more black women in unskilled occupations than white women (of the total amount of people employed in unskilled occupations, 28.6 per cent are black women and 0.4 per cent are white women). The Committee also notes that the United Nations Committee on the Elimination of Discrimination against Women, in its 2011 concluding observations, expressed concern over the persisting patriarchal attitudes and deep-rooted stereotypes concerning women’s roles and responsibilities that discriminate against women and perpetuate their subordination within the family and society (CEDAW/C/ZAF/CO/4, 4 February 2011, paragraph 20). The Committee further notes from the Commission for Gender Equality’s (CGE) 2009–10 annual report that 19 complaints related to gender discrimination were investigated by the CGE. The Committee requests the Government to provide information concerning measures taken or envisaged to raise awareness regarding gender discrimination in employment and occupation, including addressing stereotyped assumptions regarding women’s roles and responsibilities. The Committee also asks the Government to provide information on measures taken to address occupational segregation, including those aimed at promoting women’s access, and particularly black women, to a greater variety of jobs and higher level positions. Please continue to provide information on the number and outcome of complaints concerning discrimination in employment and occupation based on gender dealt with by the CGE.

Equality in employment and occupation irrespective of race and colour. The Committee notes from the Government’s report that the Director-General’s reviews conducted in terms of sections 43–45 of the EEA revealed that the “white group” accounts for 62 per cent of all positions at top and senior management levels, 55 per cent of all recruitments and 52 per cent of all promotions in 2009 at these upper occupational levels. The reviews indicated that Africans and coloured, both male and female, seem to be most negatively affected by unfair discrimination and racial stereotypes in workplaces. The Government indicates that it continues to advocate and educate both employers and employees, including trade unions, on how to implement measures to redress these imbalances through employment equity road shows. The Government also refers to a skills development strategy, and black economic empowerment targets contained in the Codes published under the Broad-Based Black Economic Empowerment Act, 2003, including with respect to public procurement processes. Recalling its previous comments relative to existing wage discrimination on the grounds of colour and race, the Committee asks the Government to provide detailed information on income differentials between the designated groups which have emerged from the income differentials statements submitted by employers under the new Employment Equity Regulations. The Committee also asks the Government to provide further information on the measures taken or envisaged to address occupational segregation based on race and colour, and to promote equality in employment and occupation irrespective of race and colour, including through the employment equity road shows, the skills development strategy and the Codes developed under the Broad-Based Black Economic Empowerment Act, as well as the impact of such measures.

Employment Equity Plans. The Committee notes that following the Director-General’s reviews, 74 previously reviewed companies were followed up in 2009 in order to monitor their compliance with the Director-General’s Recommendations. The Committee also notes that when analysis of Employment Equity Plans (EEPs) revealed disparities in remuneration based on gender or race, agreements were reached with employers to incorporate remedial action into their EEPs in order to ensure that individuals were paid in terms of the “equal pay for work of equal value” principle. The Committee asks the Government to provide information on measures taken to monitor employers’ compliance with remedial action incorporated into EEPs aiming to eliminate disparities in remuneration and other discrimination based on gender or race. The Committee reiterates its requests for information on any relevant cases of non-compliance with Director-General’s Recommendations brought before the Labour Court. Please also continue to provide information on the implementation of the EEPs and the findings of the Director-General’s reviews.

Article 3(a). Cooperation with social partners. The Committee notes that the tripartite CEE consults and cooperates with the social partners in the process of amending legislation on discrimination. The CEE cooperated with the social partners concerning the amendments to the Employment Equity Regulations in 2009, and is continuing this cooperation in the process of negotiating the amendments to the EEA until the finalization through the Cabinet and Parliament. The Committee asks the Government to continue to provide information on the cooperation with employers’ and workers’ organizations in promoting equality in employment and occupation. Please continue to provide information on the activities carried out by the National Economic Development and Labour Council (NEDLAC) and its “employment equity/skills development” team with a view to promoting the implementation of the EEA.

Article 3(e). Access to vocational training. The Committee notes from the Government’s report that the National Skills Development Act aims to provide equal opportunities for people to undergo skills development programmes and that, in this connection, measures have been put in place to reach out to persons who are particularly affected by discrimination in employment and occupation. The Committee asks the Government to provide specific information on the measures taken to address equality of opportunity through vocational training and more particularly with regard to affected groups such as black persons, women, people with disabilities and youths. The Committee once again reiterates its request for information on the outcome of the second phase of the National Skills Development Strategy (NSDS) and the findings of the independent research project. Please also provide statistical information on unemployed black people, women and persons with disabilities receiving training and employment in connection with the programmes carried out by the Government.

Article 5. Special measures. The Committee notes that during the Director-General’s review process, employers must identify barriers that adversely affect black people, women and people with disabilities, and thereafter implement affirmative action measures in their EEPs to address those barriers. The Committee further notes that EEPs that do not contain clear affirmative action measures are not approved by the Director-General for implementation. The Committee asks the Government to provide specific information on the number and content of affirmative action measures taken by employers to address discrimination against black people, and women in employment and occupation. Please also provide information on measures taken to monitor employers’ compliance with their EEPs with respect to the affirmative action measures they include.

Persons with disabilities. The Committee notes from the CEE’s tenth annual report that persons with disabilities still face various challenges in terms of accessing equality in employment and occupation. The CEE’s report also indicates that workers with disabilities were concentrated in lower occupational levels, and the most under-represented groups of persons with disabilities are blacks and women, particularly Africans and coloured. In this connection the Committee notes the Government’s indication that the measures included in the Code of Good Practice on the Employment of People with Disabilities and its Technical Assistance Guidelines are “continually considered to be necessary” and include the principle of reasonable accommodation. The Committee asks the Government to provide specific information on measures taken to implement the Code of Good Practice on the Employment of People with Disabilities and its Guidelines, including any specific affirmative action measures in the EEPs relating to counteracting discrimination towards persons with disabilities. The Committee reiterates its request for a copy of the Integrated National Disability Strategy.

Indigenous peoples. The Committee notes the information provided by the Government in the study on indigenous people’s rights undertaken by the South African Human Rights Commission (SAHRC) in 2004. The Committee notes the SAHRC’s recommendations concerning education of Khomani San children, which include, inter alia, establishing a transport system to better improve attendance, encouraging the use of indigenous language through language projects, and improving collaboration between management components of schools and the Department of Social Services and Population Development. The Committee notes that in 2004, only 1.1 per cent of the Khomani San community received tertiary education or other post-school training. The Committee notes from the report published by the ILO and the African Commission on Human and Peoples’ Rights in 2009 that indigenous peoples were numbered at approximately 316,600 and constituted five groups (Khomani San, Khwe San, Xun San, Nama Khoe and Griquas). The Committee further notes that while general legislation on discrimination provides protection for indigenous peoples (sections 1 and 9 of the Constitution), the legal framework is not specific to groups self-identifying as indigenous peoples. The Committee recalls its comments concerning the adoption of special measures aimed at addressing the discrimination historically suffered by indigenous peoples in employment and occupation contemplated by Article 5(2) of the Convention. The Committee asks the Government to provide information on any special measures aimed at addressing discrimination against indigenous peoples in employment and occupation, including measures promoting educational opportunities respectful of their particular needs. Please also provide specific information regarding any developments in the access to education for children of the Khomani San community. The Committee also requests the Government to provide information on developments concerning the memorandum adopted by the Cabinet that would lead to an official policy recognizing vulnerable indigenous communities.

Part IV of the report form. Enforcement. The Committee notes the information provided by the Government concerning the seven cases which related to unfair discrimination at the workplace. The Committee asks the Government to continue providing information on discrimination cases addressed by the courts, as well as information on the number, nature and outcome of cases brought by the CEE or the Human Rights Commission to the Labour Court or the Commission for Conciliation, Mediation and Arbitration (CCMA). The Committee reiterates its requests for information on any measures taken or envisaged by the Government to address the issue of ensuring access to justice for disadvantaged groups such as indigenous peoples.

Part V. Practical application. The Committee notes from the concluding observations of the United Nations Committee on the Elimination of Discrimination against Women the establishment of the Women’s Empowerment and Gender Equality Branch within the recently created Ministry for Women, Children and People with Disabilities and the adoption of a National Gender Policy (CEDAW/C/ZAF/CO/4, 4 February 2011, paragraph 6). The Committee reiterates its request for information on whether the Commission for Gender Equality 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 and whether the Women’s Empowerment and Gender Equality Branch plays a role in attaining this objective. Please provide information concerning specific measures included in the National Gender Policy to promote equality of opportunity and treatment in employment and occupation.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 1(1)(b) of the Convention. HIV/AIDS status. The Committee notes with interest the decision rendered by the Labour Court of Johannesburg in February 2011 (Allpass v. Mooikloof Estates, Case No. JS178/09), awarding the complainant compensatory damages for unfair dismissal and discrimination on the grounds of his HIV status, and making specific reference to the Convention, and to the HIV and AIDS Recommendation, 2010 (No. 200) as a recognition of the impact of discrimination based on real or perceived HIV status and its increasing prevalence. The Court also refers to the notion of “inherent job requirement”, included in Article 1(2) of the Convention, pointing out that the Committee has emphasized the need for a strict interpretation of this notion. The Committee asks the Government to continue to provide information on judicial and administrative decisions concerning discrimination in employment and occupation based on HIV/AIDS status. The Committee also reiterates its request for information concerning the South African Defence Force Policy on HIV/AIDS status, which was to be revised following the decision rendered by the High Court of Pretoria in May 2008. The Committee also once again asks for information concerning the National Strategy Plan on HIV/AIDS (2007–11), including measures adopted under this plan to prevent and address discrimination in employment and occupation based on HIV/AIDS status.

The Committee is raising other points in a request addressed directly to the Government.

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.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Article 1(1)(a) of the Convention. Sexual harassment. The Committee recalls its previous comments regarding sexual harassment and the adoption of the Code of Good Practice on the Handling of Sexual Harassment Cases. It notes that according to the Government’s report, the Code is merely a guide to assist employers in developing their own codes of practice. The Government’s report goes on to state that the Department of Labour does not have information on the handling of sexual harassment cases since the development of the codes of practice is within the jurisdiction of the employers. The Committee reminds the Government that it has an obligation to ensure the application of the principles of non-discrimination in respect of employment, and is responsible for the supervision and effective enforcement of anti-discrimination laws, including those provisions prohibiting sexual harassment. The Committee asks 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 whether such policies have helped to prevent and address sexual harassment. The Committee also asks the Government to supply information on the practical impact of the codes developed by employers, and on any other measures to address sexual harassment in employment and occupation. Please also provide information on any judicial and administrative decisions regarding sexual harassment including on remedies provided.

2. Article 2. Promotion of national policy. The Committee recalls its previous comments on the Promotion of Equality and Prevention of Discrimination Act (“Equality Act”) and the role of the Human Rights Commission (HRC), charged with monitoring the implementation of the Equality Act. It notes that pursuant to section 25 of the Equality Act, the HRC has conducted workshops to raise awareness on fundamental rights, including issues related to employment, with a view to enabling people to use the relevant legislative instruments to protect themselves against unfair discrimination. The Committee also notes that the HRC has established an internal mechanism to deal with issues of unfair discrimination and it is said to have resolved many complaints on that topic, and conducted investigations into cases of alleged unfair discrimination. The Committee asks the Government to provide further information on the activities of the HRC, particularly as regards the number and results of the investigations conducted with respect to complaints of unfair discrimination in employment, the complaints resolved and the assistance provided, including copies of the relevant documents, in so far as they relate to discrimination in employment and occupation. The Committee asks the Government to continue to keep it informed on the measures taken or envisaged to publicize its non-discrimination policy as called for in section 25 of the Equality Act.

3. Equality between men and women. The Committee notes that, according to the Government’s report, women workers are disproportionately found in the least remunerated and lowest ranking occupations. In particular, the largest proportion is found in clerical-related occupations. The Committee also notes that according to the statistical data provided by the Government, there are proportionately more black women found 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 reminds the Government that occupational sex segregation in the labour market is one of the most common manifestations of discrimination on the ground of sex. The Committee further notes that the case Wallace v. Du Toit concerning a dismissal because of pregnancy, was decided in 2006 by the Labour Court, which held that the dismissal was unfair and unjustified. The Committee invites the Government to look into the underlying reasons for the present occupational segregation and asks the Government to indicate in its next report the measures taken or envisaged to reduce occupational segregation of women in low-skilled jobs and to promote their access to jobs with career opportunities and higher level positions. The Committee also refers to its comments addressed to the Government under the Equal Remuneration Convention, 1951 (No. 100).

4. Equality in employment and occupation with respect to race and colour. The Committee notes that the statistical data provided by the Government show a high concentration of black persons in low-skilled jobs. In particular, whereas only 17.9 per cent of African people are employed in top management occupations, compared to 72.6 per cent of white people, 83.3 per cent of African people are found in unskilled occupations. Moreover, the employment equity reports, referred to by the Government, indicate that in the reporting period of 2005, of all the top management employees recruited, 28.3 per cent were Africans compared to 58.6 per cent white people and, further, termination of employment was highest amongst Africans than in any other population group. The Committee asks the Government to keep it informed on the measures taken or envisaged to address occupational segregation on the ground of race and colour, particularly regarding access of African people to higher level occupations as well as advancement in their professional career.

5. Article 2. National equality policy. The Committee takes note of the information provided by the Government with respect to the composition of the Commission for Employment Equity and the functions which it is called to perform. The Committee also notes that a Code of Good Practice on the Preparation and Implementation of the Employment Equity Plans, as well as a user’s guide, have been developed to assist employers to prepare and implement their plans. In that respect, the Committee takes note of the creation by the Department of Labour of an employment equity database to monitor and evaluate the implementation of the relevant legislation. In particular, according to the data so far collected and the qualitative assessment of all the initiative taken in this regard, the Committee observes that the discrimination awareness programmes, diversity management programmes and other measures were implemented on a very small scale. On the other hand, 72 per cent of employers indicated that they had implemented affirmative action measures in the area of recruitment procedures, while 66.8 per cent reported that they had implemented affirmative action measures in training and development. Moreover, approximately 73.8 per cent of employers reported that they involved their employees prior to the development of their employment equity plans. The Committee would appreciate continuing to receive information on the concrete activities carried out by the Commission for Employment Equity, as well as receiving information on the activities carried out by the Equality Review Committee. In particular, the Committee invites the Government to keep it informed on the evaluation of employment equity plans.

6. Article 3(a). Cooperation with the social partners. The Committee notes the general information provided by the Government with respect to the functions to be fulfilled by the National Economic Development and Labour Council (NEDLAC). In the absence of information on the specific activities carried out by NEDLAC, the Committee again invites the Government to supply such information.

7. Article 3(e). Access to vocational training. The Committee notes that the National Skills Development Strategy (NSDS) was reviewed and phase two of this strategy, covering the period April 2005–March 2010, was launched by the Minister of Labour in 2005. The emphasis is maintained on the training of black persons, women and people with disabilities, as well as adding young people of all categories in the scope of the strategy. The Committee further notes that an independent research project is in the process of evaluating the impact of such training in relation to the placement results in employment and learning opportunities. The Committee asks the Government to continue to keep it informed on the outcomes of the second phase of the NSDS and to provide a copy of the findings of the independent research project when it is concluded. Moreover, the Committee reiterates its previous request that the Government provide indication of the number of unemployed black people, women and people with disabilities who received training and sustainable employment in connection with the programmes carried out.

8. Article 4. Individual suspected or engaged in activities prejudicial to the security of the State. The Committee again invites the Government to supply information on the practical application of this Article and on the procedures establishing the right of appeal to competent bodies, as contemplated by the Convention.

9. Article 5. Special measures. With regard to its previous request for information on the specific affirmative action measures taken to remedy the effects of past employment discrimination against black people, women and disabled persons, the Committee notes that the Government has put into practice a number of social and skills development programmes, such as the Hummer Project for unemployed youth or the Unicraft Centre for people with disabilities, aimed at disabled people or unemployed youth, mostly black persons and women. The Committee invites the Government to continue to focus on affirmative action measures in order to overcome the persistent effects of past patterns of discrimination against black persons, women and people with disabilities, and to monitor the impact of these measures. It also asks the Government to keep it informed on the further skills development programmes carried out and the progress achieved, including statistical data, disaggregated by race, gender and occupational level.

10. Persons with disabilities. The Committee notes the reference made by the Government to the Code of Good Practice on Managing Disability which was developed by the Commission for Employment Equity to assist employers with guidelines on equitable management of disability issues in the workplace. The Committee also takes note of the Integrated National Disability Strategy which shall direct all government responses to people with disabilities. The Committee asks the Government to supply a copy of the Code of Good Practice on Managing Disability and keep it informed as to the extent to which it is applied by employers in dealing with disability issues in the workplace. The Committee also invites the Government to provide information on the practical impact of the Integrated National Disability Strategy.

11. Indigenous peoples. The Committee notes that according to the report on the Mission to South Africa of the UN Special Rapporteur on the situation of indigenous peoples, there are six large groups in South Africa who identify themselves as indigenous, namely three main San peoples (!Xun, Khwe and Khomani), various Nama descendants (Khoekhoen), the Griqua, the Koranna descendants and the “revivalist Khoisan” (E/CN.4/2006/78/Add.2). They all tend to be highly marginalized and concentrated at the lower end of the socio-economic scale. The Committee also notes that in 2000 the South African Human Rights Commission prepared an extensive study on indigenous peoples’ rights and in 2004 the Government Cabinet adopted a memorandum that would lead to an official policy on recognizing “vulnerable indigenous communities”. Additionally, the Committee notes that according to the 2003 Report of the African Commission on Human and Peoples’ Rights on indigenous populations/communities, South Africa provides an “encouraging example of an attempt to safeguard the land rights of indigenous communities” (p. 34). The Committee, however, notes that in its 2006 Concluding Observations on South Africa the UN Committee on the Elimination of Racial Discrimination (CERD) voiced its concern about the situation of indigenous peoples in South Africa and recommended that the Government take special measures in that regard (CERD/C/ZAF/CO/3, paragraph 19). The Committee recalls 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 would therefore appreciate being informed by the Government on the special measures taken or envisaged to address the discrimination historically suffered by indigenous peoples in employment and occupation. It also asks the Government to provide copies of the study on indigenous peoples’ rights undertaken by the South African Human Rights Commission and to supply 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.

12. Part IV of the report form. Enforcement. The Committee notes the extensive information on judicial decisions concerning discrimination in employment and occupation provided by the Government. Nevertheless, the Committee observes that according to the 2006 CERD general observations on South Africa there exist major difficulties in access to justice, especially for members of the most disadvantaged groups, including indigenous peoples, and those unfamiliar with English or Africaans (CERD/C/ZAF/CO/3, paragraph 24). The Committee invites the Government to continue to provide information on relevant court rulings. Noting the difficulties faced by some groups in accessing  justice, the Committee asks the Government to provide information on any measures taken or envisaged to address this problem.

13. Part V of the report form. Practical application. The Committee notes that the National Policy Framework on Women Empowerment and Gender Equality has now institutionalized gender mainstreaming. It also notes the general description of the tasks to be performed by the Commission on Gender Equality, the Office on the Status of Women, and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, included in the Government’s report. The Committee would appreciate receiving information on the practical activities carried out by these bodies and the impact of the National Policy Framework on Women Empowerment and Gender Equality.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

1. Article 1(1)(a) of the Convention. Sexual harassment. The Committee notes that the Government has indicated in reply to the 2002 general observation that section 6(3) of the Employment Equity Act, of 1998, prohibits harassment on the basis of sex, amongst other grounds, as unfair discrimination. Section 54 provides that the Minister may issue codes of practice intended to provide guidance to employers to implement the Act, including on sexual harassment. In this context, the Committee notes with interest the Code of Good Practice on the Handling of Sexual Harassment Cases which prohibits both quid pro quo and hostile environment harassment. It notes that one of the guiding principles of the Code is to recognize the primacy of collective agreements regulating the handling of sexual harassment cases. The Committee asks the Government to provide copies of such collective agreements and information on the impact of the Code on the handling of sexual harassment in workplaces in the private and public sector, including judicial and administrative decisions and remedies provided.

2. Article 1(1)(b). Additional grounds of discrimination. The Committee notes with interest the Government’s confirmation that the additional grounds (pregnancy, marital status, sexual orientation, age, disability, culture, and language) set forth in the Constitution, the Employment Equity Act of 1998 and the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 are to be covered under the Convention.

3. Article 2. Promotion of national policy. The Committee notes that the Human Rights Commission (HRC) is specifically mandated to monitor the implementation of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Equality Act), especially with regard to independent contractors and members of defence forces and the secret service, who are excluded from the application of the Employment Equity Act of 1998. Noting that regulations related to the Promotion of Equality Act were expected to be in place in August 2004, the Committee asks the Government to provide copies of these regulations and information on the promotional activities of the HRC in the field of labour and employment, in general, and more specifically with regard to the abovementioned workers. Furthermore, as no information is provided on this matter, the Government is asked to indicate the measures taken or envisaged to publicize its non-discrimination policy as called for in section 25 of the Equality Act of 2000.

4. Article 2. Please supply the information requested previously on the activities of the Equality Review Committee and the Commission for Employment Equity relevant to the application of the national non-discrimination and equality policy. Please also include details 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 Employment Equity Act.

5. Article 3(a). Cooperation with relevant bodies. The Committee notes the information provided by the Government on the activities carried out by the National Economic Development and Labour Council (NEDLAC), including its contribution to the Equality Act and the development of the codes of practice on HIV/AIDS and disability. It asks the Government to continue to provide information on NEDLAC’s activities in implementing the national non-discrimination policy, including their practical impact on the promotion of equality of opportunity in employment and occupation.

6. Article 3(e). Access to vocational training. With reference to its previous comments, the Committee notes the progress made on the equity targets across all the objectives of the National Skills Development Strategy (NSDS) [85 per cent black people, 54 per cent women and 4 per cent people with disabilities]. It notes in particular that with respect to training for a level 1 qualification on the National Qualifications Framework (NQF), the target for black people was almost achieved (84 per cent) but was still low for women (35 per cent) and people with disabilities (0.4 per cent). The Committee also notes the progress made towards the set targets for these groups with regard to their participation in structural learning programmes and their participation in social development projects. It asks the Government to continue to provide information on the progress made regarding participation of black people, women and people with disabilities in training and education programmes with an indication of the number of persons from these groups who have actually found work after completing their training. Please also provide information on the number of unemployed black people, women and people with disabilities who received training by the labour centres and who obtained sustainable employment, as well as on the specific manner in which the SETAs work to improve the employment prospects of persons previously disadvantaged by unfair discrimination and to redress those disadvantages through training and education.

7. Article 4. Individuals suspected or engaged in activities prejudicial to the security of the State. The Committee reiterates its request to 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.

8. Article 5. Special measures. 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 black people, women and disabled persons, as well as information, including statistical data, on the progress achieved to date in this regard.

9. Part IV of the report form. Enforcement. With reference to its previous comments, the Committee notes the final outcome of Whitehead v. Woolwoths (Pty) (Case No. 6/99) at the Labour Appeal Court holding that there was no causal connection between the respondent’s pregnancy and the fact that she was not appointed. It asks the Government to continue to provide information on relevant court cases and to indicate the measures taken to protect women in practice from discrimination in employment and occupation on the basis of pregnancy. Please also supply information on the nature of the discrimination cases, including dismissal, handled by the labour courts indicating the grounds of discrimination alleged and the action taken, as this information has not been included in the report.

10. Part V of the report form. Practical application. With reference to its previous comments noting the various national bodies established in the area of gender equality, the Committee would also be grateful if the Government’s next report would include information on the activities of the Commission for Gender Equality, the Office on the Empowerment of Women and the Office on the Status of Women, and the gender desks, relevant to the application of the Convention. Please also provide information on the promotional, advocacy and enforcement activities of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities relevant to the application of the Convention.

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

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.