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

Article 2, paragraph 2(a), of the Convention. Application of the principle by means of legislation. In its previous direct request, the Committee asked the Government to clarify whether section 8 of the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act), prohibiting unfair discrimination on the ground of gender, encompasses the principle of equal remuneration for men and women for work of equal value. The Committee notes the Government’s indication that “the principle is covered in the spirit of the legislation as it prohibits discrimination on gender and prohibits practices that undermine the equality between men and women”. The Committee asks the Government to provide information on the practical application of section 8 of the Equality Act, including in connection with the provisions contained in Chapters IV (Equality Courts) and V (Promotion of Equality) of the Act, as it relates to the principle of equal remuneration for work of equal value.

The Committee refers to its previous comments on the application of the Employment Equity Act (EEA) and its related regulations, as well as on the scope of the employment equity report form. It notes the information provided by the Government on the aims of section 27 of the EEA. It also notes that the Employment Conditions Commission is in the process of compiling a report on income differentials on the basis of the employment equity reports submitted by the employers. The Committee further notes that the Employment Equity Regulations on Income Differentials were amended to allow for the gathering of sufficient data on remuneration at each occupational category and level, disaggregated by sex and race. The Committee notes that both large and small employers are required to submit such “income differentials statements”. However, the Committee notes that the current employment equity report form (EEA2) still exempts small employers from providing information on, among other things, barriers to employment equity in respect of remuneration and benefits and affirmative action measures adopted to address them, as section F of the report form does not apply to them. The Committee asks the Government to provide full information on income differentials between men and women workers, disaggregated by occupational category and level, based on the analysis conducted by the Employment Conditions Commission and the information contained in the income differentials statements. The Committee also asks the Government to provide information on the barriers to employment equity in remuneration identified in the employers’ reports and the affirmative action measures adopted to overcome them. Noting that similar information is not available for small employers, the Committee asks the Government to indicate the measures adopted or envisaged to ensure that such barriers are identified and addressed also in small enterprises. Please also provide examples of cases where income differentials were deemed “disproportionate” in terms of section 27(2) of the EEA and the criteria used to make this assessment.

Article 2, paragraph 2(c). Wage determination by collective agreement. The Committee recalls that once a collective agreement is concluded, its provisions become enforceable pursuant to the basic Conditions of Employment Act of 1997 and the Labour Relations Act of 1995. In the event of violation of such agreement on the part of the employer, the employee is entitled to bring a claim before the Department of Labour. Should the violation relate to an unfair labour practice, the employee can lodge a claim before the Commission for Conciliation, Mediation and Arbitration (CCMA). The Committee again asks the Government for examples of collective agreements enshrining the principle of equal remuneration for men and women for work of equal value, as well as copies of any administrative or judicial decisions or arbitration awards regarding violation of equal remuneration provisions of collective agreements.

Article 3. Objective job evaluation. With regard to its previous comments concerning job evaluations systems, the Committee notes the Government’s indication that one of the areas on which employers are required to report, in the context of the employment equity report form, is job evaluation. The Committee understands that job evaluation is covered by section F of the report form, which only applies to large enterprises. The Committee recalls that section 12.3 of the Code of Good Practice on the Integration of Employment Equity into Human Resources Policies and Practices spells out that remuneration should be based on the value of the post. Stressing once again the importance of adopting job evaluation systems, based on objective criteria free from gender bias for the purpose of ensuring equal remuneration for work of equal value, the Committee asks the Government to indicate the measures taken or envisaged to ensure that the job evaluation systems used by employers in connection with the employment equity report obligations do not undervalue jobs predominantly performed by women and contribute effectively to fostering equal remuneration for men and women for work of equal value. The Committee also asks the Government to provide information on any measures adopted or envisaged to promote the use of objective job evaluation systems among small employers. Please also indicate how the need for objective job evaluation is taken into account with regard to sectoral determinations setting minimum wages, including by the Employment Conditions Commissions when advising the Minister of Labour on sectoral determinations.

Article 4. Cooperation with social partners. The Committee notes from the Government’s report that the tripartite National Skills Authority is making efforts to promote women’s access to better paying jobs. It also notes that the CCMA, also a tripartite body, has addressed various disputes concerning unfair discrimination based on unequal remuneration for work of equal value. The Committee would appreciate receiving information on the measures taken by the National Skills Authority to foster women’s access to better paying jobs and on the number and outcomes of any relevant disputes brought before the CCMA. Please also provide information on any activities relevant to the promotion of the principle of the Convention carried out by the Labour Market Chamber, the Employment Conditions Commission and the Bargaining Councils.

Part III of the report form. Enforcement. The Committee notes the Government’s indication that it is unable to provide information on the activities of the labour inspectorate relevant to the application of the Convention as the inspection system currently in place does not allow the collecting of information directly related to the Convention. The Committee encourages the Government to take the necessary steps to ensure that the application of the Convention is duly monitored and that data relating to the number and nature of cases of unequal remuneration detected by the labour inspectorate, and any remedies provided or sanctions imposed, are collected and disseminated.

Part V of the report form. The Committee notes from the Government’s report that the Human Rights Commission (HRC) did not examine any cases directly related to the Convention. The Committee asks the Government to continue to provide information on any relevant activities carried out by the HRC, the National Office of the Status of Women, the Office on the Empowerment of Women and the Commission on Gender Equality.