Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information in the Government’s first report and related materials.

1. Article 1(b) of the Convention. The Committee notes that section 6 of the Employment Equity Act (EEA) of 1998 prohibits any person to "unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including ... gender, sex ...", including with respect to remuneration. While this section does not specify that it prohibits unequal remuneration as between men and women, not only for equal work, but for work of equal value, the Committee notes that section 3 of the EEA provides that its provisions must be interpreted "in compliance with the international law obligations of the Republic". Recalling that the principle of the Convention is that men and women are to receive equal remuneration for work of equal value, the Committee asks the Government to indicate whether in fact section 6 requires equal remuneration as between men and women for work of equal value. At the same time, the Committee urges the Government to consider revising the legislation to include an explicit reference to the principle of equal remuneration for work of equal value.

2. The Committee notes that the Promotion of Equality and Prevention of Unfair Discrimination Act was enacted in part to implement article 9 of the Constitution, which prohibits unfair discrimination by any person or state official, either direct or indirect, based on sex among other grounds. It also notes that this Act and the Constitution are the only basis on which independent contractors and certain public servants may seek protection from discrimination in remuneration. Accordingly, the Committee asks the Government to confirm that these instruments in fact prohibit, as to these groups, unequal remuneration as between men and women for work of equal value.

3. Article 2(2)(a). The Committee notes that section 27 of the EEA requires all designated employers, as part of their reporting duties, to submit a statement "on the remuneration and benefits received in each occupational category and level of that employer’s workforce", and to take measures to reduce disproportionate income differentials whenever they are reflected in such statements. The Committee asks the Government for clarification of the meaning of the term "disproportionate income differentials". In this connection, the Committee also asks the Government for specific information on the actual differentials in income reported by designated employers, disaggregated by sex and broken down by categories as provided for in the 1998 general observation. Finally, the Committee asks the Government for information as to income differentials in workplaces of employers who are not "designated", as well as about any efforts it is undertaking to ensure compliance by these employers with the principle of the Convention.

4. The Committee notes that sections 19 and 20 of the EEA require employers, inter alia, to prepare and implement employment equity plans with specific objectives and targets, and to monitor and evaluate the implementation of the plans, and that section 20(2)(c), in particular, provides that where women (among others) are found to be under-represented in a given occupational category, specific strategies must be developed to ensure that "suitably qualified" women be assigned to the relevant category. The Committee asks the Government to indicate whether any of these employment equity plans promote equal pay for work of equal value.

5. Article 2(2)(b). The Committee notes that Chapter 8 of the Basic Conditions of Employment Act provides that the Minister may make a determination establishing "basic conditions of employment for employees in a sector and area". Such sectoral determinations may include the setting of minimum rates of remuneration, adjustments to such rates, the regulation of the manner, timing and other conditions of payment of remuneration as well as the regulation of other payments, the minimum conditions of employment for trainees, training and education schemes, or "any other matter concerning remuneration or other terms or conditions of employment". Finally, the Committee notes that such determinations are to be made based on investigations and the resulting reports. The Committee asks the Government for copies of any sectoral determinations made by the Minister, along with details as to criteria used for setting minimum wages. It also asks the Government how the principle of the Convention is applied in the development of these determinations.

6. The Committee notes that the Employment Conditions Commission is to advise the Minister of Labour on sectoral determinations, and that it is to research and investigate norms and benchmarks for proportionate income differentials and advise the Minister on appropriate measures for reducing disproportionate differentials. It also notes that the Commission for Employment Equity is charged with the responsibility of researching and reporting, in the context of the EEA, on norms and benchmarks for the setting of numerical goals in various employment sectors. The Committee asks the Government for any reports prepared, or other research carried out, by either of these bodies in these connections, as well as for information regarding any action taken to reduce gender-based income differentials.

7. Article 2(2)(c). The Committee notes the Government’s explanation that collective agreements employ a definition of "wage" which refers "to the amount of money payable to an employee as prescribed in the collective agreement in respect of the employee’s ordinary hours of work as prescribed", and that the term "equal remuneration for work of equal value" is not made use of at all in these collective agreements, but that the agreements are bound by the principles of national legislation. In view of the fact that the collective agreement definition of "wage" is much narrower than the Convention’s definition of "remuneration", the Committee asks the Government what steps it is taking to ensure that the principle of the Convention is respected in collective agreements. At the same time, it asks the Government to forward copies of the collective agreements.

8. Article 3. The Committee notes that in section 2.3.2 of the National Gender Policy Framework it is acknowledged that low value is accorded to women’s work and women are clustered in low-paid jobs, but that the report contains no information or indication that objective job evaluation is being done with respect to promoting equal pay for men and women of all races. It asks the Government for details of any such objective job evaluation that it is in the process of undertaking, and also for any plans it has for carrying out such evaluations in the future.

9. Article 4. The Committee notes the Government’s assertion that cooperation between employers’ and workers’ organizations is subject to the principles of the Constitution and the Labour Relations Act, and asks the Government for specific information as to how the principle of the Convention is applied in practice in the course of this cooperation.

10. Part III of the report form. The Committee asks the Government for information about the number of labour inspections carried out by labour inspectors, any violations of the Convention discovered, and remedies applied. At the same time, it asks the Government for details of any reviews by the Director-General of the Department of Labour, in the context of his or her duty to conduct reviews to determine if an employer is complying with the EEA, which directly relate to the implementation, or the violation, of the Convention.

11. Part V of the report form. The Committee notes with interest the creation and functioning of a wide range of governmental bodies and officials that carry out activities directly relevant to the Convention, including the National Office on the Status of Women, the Office on the Empowerment of Women, the Joint Monitoring Committee on the Improvement of the Quality of Life and the Status of Women, and the Human Rights Commission. The Committee particularly notes the functions of the Commission on Gender Equality, including (but not limited to): (i) monitoring compliance with international instruments; (ii) making recommendations on policies and practices of South African organizations, bodies and institutions to ensure they promote gender equality; (iii) evaluating proposed legislation and making recommendations regarding the adoption of new legislation that would promote gender equality; and (iv) conducting appropriate research. The Committee asks the Government for specific information with respect to the activities of any of these bodies in so far as their work implicates the principle of the Convention. It also asks the Government for statistics relating to equal remuneration as between men and women for work of equal value, in accordance with the 1998 general observation on the Convention.

12. The Committee asks the Government to forward any judicial decisions relating to the principle of equal pay as between men and women for work of equal value.