Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Articles 1 and 2 of the Convention. Scope of minimum wage fixing machinery. Further to its previous comment, the Committee notes the Government’s indication that there have been no new sectoral determinations while the welfare sector investigation has been completed and the findings are currently tabled at the Employment Conditions Commission (ECC) for deliberation. It also notes that the Government is in the process of commissioning another investigation into the unskilled labour sector while a study to determine the possible impact of sectoral determinations on poverty alleviation is still under way. The Committee would be grateful if the Government would provide in its next report all relevant information concerning the progress made in publishing the new sectoral determinations for the welfare and the unskilled labour sectors.

In this respect, the Committee wishes to refer to its 2009 general observation in which reference was made to the Global Jobs Pact, adopted by the International Labour Conference in June 2009 in response to the global economic crisis, which places particular emphasis on the need to strengthen respect for international labour standards and expressly identifies wages-related ILO instruments as being relevant in order to prevent a downward spiral in labour conditions and build recovery (paragraph 14). It further suggests that governments should consider options such as minimum wages that can reduce poverty and inequity, increase demand and contribute to economic stability (paragraph 23) and points out that, in order to avoid deflationary wage spirals, minimum wages should be regularly reviewed and adapted (paragraph 12). The Committee accordingly requests the Government to provide information on any further developments concerning the readjustment of minimum wage rates or other wage policy measures taken or planned in connection with the current economic crisis.

Article 3(2). Participation of employers’ and workers’ representatives in the minimum wage fixing machinery. The Committee notes the information provided by the Government on the composition, mandate and rules of procedure of the ECC. The Committee would thank the Government for continuing to provide all relevant information concerning the full consultation and direct participation of representative employers’ and workers’ organizations at all stages of the minimum wage fixing process, as required by this Article of the Convention.

Article 4. Enforcement measures. Following up on its previous comment, the Committee would appreciate receiving concrete information concerning the operation in law and practice of the system of inspection and sanctions that ensures compliance with the minimum wage legislation.

Article 5 and Part V of the report form. Application in practice. The Committee notes the statistical data provided by the Government concerning the number of workers covered by the sectoral determinations currently in force. The Committee would be grateful if the Government would continue to supply documented information on the effect given to the Convention in practice, including, for instance, information on the evolution of minimum pay rates as compared to the evolution of economic indicators such as the consumer price index, the approximate number of workers remunerated at the minimum pay rate, if possible broken down by sex and age, inspection results showing the number of infringements of the minimum wage legislation observed and sanctions imposed, extracts from official studies or reports on minimum wage policy, etc.

Finally, as regards the possibility of ratifying the Minimum Wage Fixing Convention, 1970 (No. 131), the Committee notes the Government’s statement that there have not yet been any consultations with the social partners regarding the ratification of this Convention. The Committee requests the Government to keep the Office informed of any new developments in this regard.

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

The Committee notes the information provided by the Government in reply to its previous comment.

Articles 1 and 2 of the Convention. Scope of minimum wage-fixing machinery. The Committee notes the detailed information provided by the Government concerning the 11 sectoral determinations adopted so far for low-paid and largely unorganized sectors. It notes, in particular, that the minimum wage rates provided for in most of the determinations are linked to consumer price indices, that special measures are taken in some sectors (for example, a higher hourly rate in the domestic worker sector for employing workers for less than 27 hours per week to prevent atypical form of employment, the move towards a single minimum wage in the civil engineering sector, the exclusion from the scope of the sectoral determination for the hospitality sector of areas covered by a bargaining council with a view to encouraging collective bargaining, etc.), and that investigations are under way in the welfare and unskilled labour sectors for a possible sectoral determination. The Committee also notes the Government’s indication that the social partners usually initiate the process of sectoral determination by requesting the Minister to launch an investigation following which a notice of intention to investigate is published and the Employment Conditions Commission (ECC) is consulted. The Committee would appreciate if the Government would continue to provide information with regard to any new sectoral determinations.

Article 3, paragraph 2(1) and (2). Participation of employers’ and workers’ representatives in the minimum wage fixing machinery. Further to its previous comment, the Committee notes the Government’s explanations on the manner in which consultations take place within the ECC. When reviewing or investigating sectoral determinations, relevant terms of reference are made public through a notice published in the government Gazette, to which all interested parties can submit written inputs. This gives rise to an extensive public hearing process, the preparation of a discussion document, and a full debate in the ECC eventually leading to the adoption of a majority and a minority report. The Committee would appreciate receiving detailed particulars on the functioning of the ECC, for instance, copies of any recent surveys or activity reports.

Article 3, paragraph 2(3). The binding force of minimum wage rates. The Committee notes the information provided by the Government on the instances where the Minister of Labour has exercised his discretionary power and cancelled 11 old wage determinations which in fact date back to the period preceding the advent of democratic rule in South Africa and contained provisions less beneficial than the BCEA. It also notes the Government’s statement that the Minister may not use these powers unilaterally, given that the Minister’s intention to cancel must be announced through a notice in the government Gazette, in order to allow public comments and a broad consultation process involving stakeholders.

Article 4. Enforcement measures. The Committee notes the information provided by the Government concerning the enforcement of the BCEA through labour inspection activities and communication campaigns. It would be grateful if the Government continued to supply concrete information on the enforcement of the relevant legislation, including, for instance, copies of awareness raising publications and other material used for media campaigns.

Article 5 and Part V of the report form. The Committee requests the Government to provide up to date information on the manner in which the Convention is applied in practice including, for example, statistical data on the number of workers covered by the 11 sectoral determinations currently in effect, labour inspection results showing the number of visits conducted and contraventions of minimum pay rates observed, etc.

Finally, the Committee wishes to draw the Government’s attention to the conclusions of the ILO Governing Body on the continued relevance of the Convention based on the recommendations of the Working Party on Policy regarding the Revision of Standards (GB.283/LILS/WP/PRS/1/2, paras 19 and 40). In fact, the Governing Body has decided that Convention No. 26 is among those instruments which may no longer be fully up to date but remain relevant in certain respects. The Committee therefore suggests that the Government should consider the possibility of ratifying the Minimum Wage Fixing Convention, 1970 (No. 131), which marks certain advances compared to older instruments on minimum wage fixing, for instance, as regards its broader scope of application, the requirement for a comprehensive minimum wage system, and the enumeration of the criteria for the determination of minimum wage levels. The Committee requests the Government to keep the Office informed of any decision taken or envisaged in this regard.

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

The Committee notes the Government’s detailed report and the information provided in reply to its previous comments.

Article 1 of the Convention. The Committee notes the Government’s indication that the system of minimum wages is no longer regulated by the Wages Act of 1957 which has been repealed by the Basic Conditions of Employment Act (BCEA) No. 75 of 1997, as last amended in 2002. The Government states that the BCEA does not itself lay down minimum wage rates but provides for the establishment of sectoral determinations by the Minister of Labour which lay down minimum wages for those sectors which are deemed to be vulnerable. In fact, under section 55(4) of the BCEA, the Minister of Labour, upon considering the recommendations of the Employment Conditions Commission, is empowered to make a sectoral determination setting, in respect of the sector or area concerned, minimum terms and conditions of employment, including minimum rates of remuneration, or providing for the adjustment of minimum rates of remuneration. The Committee further notes that the scope of application of the BCEA has been extended to cover domestic and agricultural workers who, prior to 1997, were excluded from the provisions of most labour laws, and that consequently sectoral determinations setting minimum wages for those workers were promulgated and came into effect on 1 September and 31 December 2002, respectively.

Article 2. The Committee notes that, according to the Government’s report, sectoral determinations are currently in place for nine low-paid and largely unorganized sectors, i.e. clothing and knitting, civil engineering, private security, wholesale and retail, domestic work, agriculture, learnerships and contract cleaning, whereas in six other sectors which are deemed to be vulnerable, namely hospitality, sheltered employment, taxi, forestry, children in the performing arts and fishing/maritime, investigations are currently being conducted with a view to making sectoral determinations. The Committee recalls that, in accordance with the provisions of the Convention, the opinion of the employers and workers concerned should be sought on all questions concerning minimum wage fixing and that consultation should first relate to preliminary questions including the determination of the trades or parts of trades, undertakings, occupations or categories of persons to which the minimum wage fixing machinery should be applied. While noting that, under sections 52(4) and 53(1) of the BCEA, the Minister of Labour or the Director-General of Labour are not under an obligation to consult the employers’ and workers’ representatives before deciding that a specific sector should be investigated for the purpose of making a sectoral determination unless an organization in that sector makes a written request to this effect, the Committee asks the Government to specify how it is ensured in law and practice that the social partners are fully consulted on the selection of the trades to be considered for minimum wage determination.

Article 3, paragraph 2(1) and (2). With reference to its previous comments concerning the equal representation of the employers and workers concerned in the operation of the minimum wage fixing machinery, the Committee notes that under sections 54(4) and 60(2) of the BCEA, the Employment Conditions Commission, which is responsible for advising the Minister of Labour on the publication of a sectoral determination, is composed of five members, including one member representing organized labour and one member representing organized business. The Committee also notes the Government’s statement that before making a sectoral determination the Department of Labour is engaged in a process of extensive public participation by consulting both employers’ and workers’ organizations, by receiving written representations from interested or affected persons and also by conducting public hearings nationally, bilateral meetings and workshops with all the stakeholders concerned.

Article 3, paragraph 2(3). The Committee notes that under section 56(3) and (4) of the BCEA, the Minister of Labour may cancel or suspend any provision of a sectoral determination provided that before publishing a notice of cancellation or suspension the Minister must, by notice in the Gazette, announce its intention to do so and allow an opportunity for public comment. The Committee is bound to observe, in this respect, that this provision is contrary to the principle of the binding force of minimum wages and also inconsistent with the requirement of the Convention for full consultation and direct participation of the employers and workers concerned at all stages of the process for determining, reviewing or adjusting minimum wages. The Committee requests therefore the Government to take the necessary action in the very near future to bring its legislation into conformity with the relevant provisions of the Convention. The Committee also asks the Government to indicate whether the Minister of Labour has so far made use of this discretionary power by cancelling or suspending, either in part or in whole, any of the sectoral minimum wages.

Article 4. The Committee notes the Government’s indication that the enforcement of the provisions of the BCEA regarding conditions of employment and minimum wages is entrusted to the Inspections and Enforcement Unit (IES) of the Department of Labour which is housed in the various provincial and regional offices of the Department and is headed by a chief inspector. It also notes the provisions of Schedule Two of the BCEA which sets out the maximum permissible fines that may be imposed for failure to comply with the Act involving an underpayment. The Committee further notes the Government’s statement that once a sectoral determination has been promulgated, the Department of Labour embarks on a process of public education to raise awareness among the stakeholders about its provisions. The Committee would be grateful to the Government for continuing to provide information on all aspects of the supervision and enforcement of minimum wages, including the measures to ensure the provision of information to workers concerning not only the rates of minimum wages but also in general the rights concerning such wages.

Article 5 and Part V of the report form. The Committee notes the statistical information on the estimated number of employees and the minimum monthly and hourly wage rates applicable in each of the nine vulnerable sectors for which sectoral determinations have so far been established. The Committee requests the Government to continue to supply up-to-date information on the effect given to the Convention in practice, including the minimum rates of pay in force by sector and occupational category, the approximate number of workers covered by relevant legislation, statistics on labour inspection visits and the results obtained in matters of minimum wages as well as any other particulars bearing on the functioning of the minimum wage fixing machinery.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes that the Government’s report contains no reply to previous comments. It hopes that the next report will include full information on the matters raised in its previous direct request, which read as follows:

Article 1 of the Convention, in conjunction with point V of the report form. The Committee notes the Government’s indication that the Wage Act does not cover all workers and that it excludes the important and large sectors of agriculture and domestic workers by virtue of section 2(2). According to the Government, the proposed new legislation will cover all employees. Apart from this limitation, the procedure allows the fixing of wages for any trade and no other limitations are placed in this regard. In practice, wage determinations are made with regard to the unorganized and low wage sectors.

The Committee requests the Government to provide further information on wage determination in the unorganized and low wage sectors. It also requests the Government to provide a copy of the new legislation as soon as it is adopted.

Article 2, in conjunction with point V of the report form. The Committee notes the Government’s statement that there is no procedure in the Wage Act, 1957 determining how a selection of the trades to be considered is made. There are also no specific provisions for consultation with any organizations in this regard, but section 9(1) of the Wage Act 1957 provides that any interested persons may make representations. The Act in question is under review, but in the meantime, the Minister of Labour determines a draft programme of action for the Wage Board based on the perceived needs. According to the Government such perceptions of needs are influenced by the social partners, and although it is not a statutory requirement, the programme for 1997 was submitted to the Labour Market Chamber of National Economic, Development and Labour Council.

The Committee recalls that in accordance with the provisions of the Convention, ratifying States must undertake preliminary consultation of employers’ and workers’ representative organizations and/or the employers and workers concerned. The Committee requests the Government to indicate to what extent these organizations and employers and workers have been consulted with respect to the minimum wage determination and, as the case may be, the results of this consultation in the determination of minimum wages. It also hopes that the revision of the Wage Act, 1957 will provide for this obligation of preliminary consultation of social partners in the minimum wage fixing process.

Article 3, paragraph 2(1) and (2), in conjunction with Article 5 and point V of the report form. 1. With reference to the previous comments concerning the equality between employers and workers as to consultation and participation in the minimum wage fixing, the Committee noted that the Government cites some provisions of the Wage Act, 1957, concerning the appointment of assessors to assist the Wage Board during the investigation of a particular trade. The Committee noted that, although these provisions require the number of assessors to represent the employers to be equal to that of the workers, the appointment of such assessors itself is not mandatory. It therefore requested the Government to indicate whether, in practice, an equal number of assessors representing the employers and the workers have been appointed under these provisions.

The Committee notes the Government’s statement that, as a result of certain considerations, assessors are not appointed as a matter of course during Wage Board investigations. Where they are appointed they are appointed in even numbers representing labour and business respectively.

In its previous comments, the Committee considered that section 51A of the Labour Relations Act, 1956, which empowers only the employers to submit such proposal that initiates one of the minimum wage-fixing procedures does not appear to meet the requirement of the provision of the Convention under which the employers and workers concerned should be associated in the operation of the machinery "in equal numbers and on equal terms". The Committee also recalled that, as it has pointed out in paragraph 203 of the 1992 General Survey on minimum wages, one of the reasons advanced for the adoption of the Convention was the lack of organization of workers or the weakness of their organizations. Given, in addition, the terms used in these provisions (i.e. "representatives of the employers and workers concerned" (Article 3, paragraph 2(1)),and "the employers and workers concerned" (paragraph 2(2)),the fact that the workers are not sufficiently organized cannot be considered as a valid reason for not consulting the workers concerned. The Committee, therefore, requested the Government to indicate any measures taken or envisaged to bring the provisions of section 51A of the abovementioned Act and their practical application into conformity with these requirements of the Convention.

The Government indicates that the Labour Relations Act, 1956 has been repealed and replaced by the Labour Relations Act, 1995. The new legislation does not provide any mechanism similar to that contained in section 51A of the repealed Act and, therefore, the issues raised by the Committee are no longer a cause for concern.

The Committee also notes the Government’s statement that the Wage Board’s information gathering role does not take the form of a negotiation forum and any inequality of representation does not consequently have a negative impact as the procedures do not allow one party to dominate the other, even where unbalanced representation may occur. The Board ensures that it gathers balanced and valid data from which it makes its recommendations.

The Committee recalls that paragraph 195 of the 1992 General Survey on minimum wages specifies that the consultation referred to in the minimum wage instruments implies that employers and workers, their representatives or those of their organizations be able to have a real influence on the decisions to be taken. It requests the Government to provide information on the results of the consultation of the employers and workers concerned on the recommendations of the Wage Board as concerns minimum wages. It also requests the Government to continue to supply information on the minimum wage rates that have been fixed and the number of workers covered by these rates.

Article 4. The Committee notes, inter alia, the Government’s statement that the fact that contraventions of wage determinations form the subject of legal proceedings places an onerous burden on inspectors who are obliged to obtain and document sufficiently detailed evidence for the public prosecutor. This is one of the reasons why the whole legislative framework is under review. It requests the Government to continue to provide information in this respect.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes that the Government’s report only contains information which partially replies to its previous comments. It must therefore repeat its previous observation which read as follows:

The Committee notes the information supplied in the Government’s report in reply to its previous comments, including the text of the Main Agreement for the Iron, Steel, Engineering and Metallurgical Industry, as consolidated in 1996. It further notes the Government’s statement that: (i) labour legislation in South Africa is currently undergoing a complete revision, and certain regulating measures are currently still in operation as part of the transition phase; (ii) the Labour Relations Act, 1956, has been repealed and replaced by Labour Relations Act No. 66 of 1995, as amended by the Labour Relations No. 42 of 1996.

The Committee hopes that these ongoing changes will take into account the Committee’s comments concerning this Convention. It requests the Government to continue to provide information on any developments in this regard.

  Effective fixing of minimum wages

Article 1 of the Convention. The Committee notes the Main Agreement for the Iron, Steel, Engineering and Metallurgical Industry, as consolidated in 1996. It notes that this agreement does not provide for minimum wages in this sector. It also notes the Government’s indication that there are no specific measures taken or envisaged for the regulation of minimum wages during the period for which there is no collective agreement in force. In principle, however, the minimum wage would continue to be acceptable in the industry and the employer would not unilaterally be able to reduce the norm in the absence of the agreement without opening the business, enterprise or industry to an allegation of an unfair practice.

The Committee recalls the explanations provided in paragraph 62 of its 1992 General Survey on minimum wages, according to which the creation and maintenance of methods for fixing minimum wages is not enough to comply with the obligations arising from the Convention, but it is also necessary to use these methods for the effective fixing of minimum wages. The Committee hopes that, in the near future, the Government will take measures to ensure the fixing of minimum wages during the period for which there is no collective agreement in force.

  Binding force of minimum wages

Article 3, paragraph 2(3). In its previous comments, the Committee referred to the Temporary Removal of Restrictions on Economic Activities Act of 1986, under which the State President may, by proclamation, suspend, or grant exemption from, the provisions of any enactment having force of law. It requested the Government to indicate measures taken to ensure that the application of the provisions of the Convention is not affected by proclamation made under the Act of 1986.

The Committee recalled that Article 3, paragraph 2(3), of the Convention requires minimum rates of wages to be binding on the employers and workers concerned and does not allow abatement except by collective agreement with the general or particular authorization of the competent authority. It also noted that section 2 (concerning consultation) of the 1986 Act provides only for optional consultation, inter alia, with persons representing the class of persons concerned.

The Committee notes with regret that the Government’s report does not contain any indications with respect to the above request. It hopes that the Government will indicate any measures taken or contemplated to ensure the application of the provisions of the Convention, and in particular of Article 3, paragraph 2(3), with regard to the proclamation made under the 1986 Act. It also hopes that the Government will provide information on any proclamation made under this Act that involves suspension of or exemption from enactments concerning the minimum rates of wages.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

Article 1 of the Convention, in conjunction with point V of the report form. The Committee notes the Government's indication that the Wage Act does not cover all workers and that it excludes the important and large sectors of agriculture and domestic workers by virtue of section 2(2). According to the Government, the proposed new legislation will cover all employees. Apart from this limitation, the procedure allows the fixing of wages for any trade and no other limitations are placed in this regard. In practice, wage determinations are made with regard to the unorganized and low wage sectors.

The Committee requests the Government to provide further information on wage determination in the unorganized and low wage sectors. It also requests the Government to provide a copy of the new legislation as soon as it is adopted.

Article 2, in conjunction with point V of the report form. The Committee notes the Government's statement that there is no procedure in the Wage Act, 1957 determining how a selection of the trades to be considered is made. There are also no specific provisions for consultation with any organizations in this regard, but section 9(1) of the Wage Act 1957 provides that any interested persons may make representations. The Act in question is under review, but in the meantime, the Minister of Labour determines a draft programme of action for the Wage Board based on the perceived needs. According to the Government such perceptions of needs are influenced by the social partners, and although it is not a statutory requirement, the programme for 1997 was submitted to the Labour Market Chamber of National Economic, Development and Labour Council.

The Committee recalls that in accordance with the provisions of the Convention, ratifying States must undertake preliminary consultation of employers' and workers' representative organizations and/or the employers and workers concerned. The Committee requests the Government to indicate to what extent these organizations and employers and workers have been consulted with respect to the minimum wage determination and, as the case may be, the results of this consultation in the determination of minimum wages. It also hopes that the revision of the Wage Act, 1957 will provide for this obligation of preliminary consultation of social partners in the minimum wage fixing process.

Article 3, paragraph 2(1) and (2), in conjunction with Article 5 and point V of the report form. 1. With reference to the previous comments concerning the equality between employers and workers as to consultation and participation in the minimum wage fixing, the Committee noted that the Government cites some provisions of the Wage Act, 1957, concerning the appointment of assessors to assist the Wage Board during the investigation of a particular trade. The Committee noted that, although these provisions require the number of assessors to represent the employers to be equal to that of the workers, the appointment of such assessors itself is not mandatory. It therefore requested the Government to indicate whether, in practice, an equal number of assessors representing the employers and the workers have been appointed under these provisions.

The Committee notes the Government's statement that, as a result of certain considerations, assessors are not appointed as a matter of course during Wage Board investigations. Where they are appointed they are appointed in even numbers representing labour and business respectively.

2. In its previous comments, the Committee considered that section 51A of the Labour Relations Act, 1956, which empowers only the employers to submit such proposal that initiates one of the minimum wage-fixing procedures does not appear to meet the requirement of the provision of the Convention under which the employers and workers concerned should be associated in the operation of the machinery "in equal numbers and on equal terms". The Committee also recalled that, as it has pointed out in paragraph 203 of the 1992 General Survey on minimum wages, one of the reasons advanced for the adoption of the Convention was the lack of organization of workers or the weakness of their organizations. Given, in addition, the terms used in these provisions (i.e. "representatives of the employers and workers concerned" (Article 3, paragraph 2(1)), and "the employers and workers concerned" (paragraph 2(2)), the fact that the workers are not sufficiently organized cannot be considered as a valid reason for not consulting the workers concerned. The Committee, therefore, requested the Government to indicate any measures taken or envisaged to bring the provisions of section 51A of the above-mentioned Act and their practical application into conformity with these requirements of the Convention.

The Government indicates that the Labour Relations Act, 1956 has been repealed and replaced by the Labour Relations Act, 1995. The new legislation does not provide any mechanism similar to that contained in section 51A of the repealed Act and, therefore, the issues raised by the Committee are no longer a cause for concern.

The Committee also notes the Government's statement that the Wage Board's information gathering role does not take the form of a negotiation forum and any inequality of representation does not consequently have a negative impact as the procedures do not allow one party to dominate the other, even where unbalanced representation may occur. The Board ensures that it gathers balanced and valid data from which it makes its recommendations.

The Committee recalls that paragraph 195 of the 1992 General Survey on minimum wages specifies that the consultation referred to in the minimum wage instruments implies that employers and workers, their representatives or those of their organizations be able to have a real influence on the decisions to be taken. It requests the Government to provide information on the results of the consultation of the employers and workers concerned on the recommendations of the Wage Board as concerns minimum wages. It also requests the Government to continue to supply information on the minimum wage rates that have been fixed and the number of workers covered by these rates.

Article 4. The Committee notes, inter alia, the Government's statement that the fact that contraventions of wage determinations form the subject of legal proceedings places an onerous burden on inspectors who are obliged to obtain and document sufficiently detailed evidence for the public prosecutor. This is one of the reasons why the whole legislative framework is under review. It requests the Government to continue to provide information in this respect.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the information supplied in the Government's report in reply to its previous comments, including the text of the Main Agreement for the Iron, Steel, Engineering and Metallurgical Industry, as consolidated in 1996. It further notes the Government's statement that: (i) labour legislation in South Africa is currently undergoing a complete overhaul, and certain regulating measures are currently still in operation as part of the transition phase; (ii) the Labour Relations Act, 1956, has been repealed and replaced by Labour Relations Act No. 66 of 1995, as amended by the Labour Relations No. 42 of 1996.

The Committee hopes that these ongoing changes will take into account the Committee's comments concerning this Convention. It requests the Government to continue to provide information on any developments in this regard.

Effective fixing of minimum wages

Article 1 of the Convention.The Committee notes the Main Agreement for the Iron, Steel, Engineering and Metallurgical Industry, as consolidated in 1996. It notes that this agreement does not provide for minimum wages in this sector. It also notes the Government's indication that there are no specific measures taken or envisaged for the regulation of minimum wages during the period for which there is no collective agreement in force. In principle, however, the minimum wage would continue to be acceptable in the industry and the employer would not unilaterally be able to reduce the norm in the absence of the agreement without opening the business, enterprise or industry to an allegation of an unfair practice.

The Committee recalls the explanations provided in paragraph 62 of its 1992 General Survey on minimum wages, according to which the creation and maintenance of methods for fixing minimum wages is not enough to comply with the obligations arising from the Convention, but it is also necessary to use these methods for the effective fixing of minimum wages. The Committee hopes that, in the near future, the Government will take measures to ensure the fixing of minimum wages during the period for which there is no collective agreement in force.

Binding force of minimum wages

Article 3, paragraph 2(3).In its previous comments, the Committee referred to the Temporary Removal of Restrictions on Economic Activities Act of 1986, under which the State President may, by proclamation, suspend, or grant exemption from, the provisions of any enactment having force of law. It requested the Government to indicate measures taken to ensure that the application of the provisions of the Convention is not affected by proclamation made under the Act of 1986.

The Committee recalled that Article 3, paragraph 2(3), of the Convention requires minimum rates of wages to be binding on the employers and workers concerned and does not allow abatement except by collective agreement with the general or particular authorization of the competent authority. It also noted that section 2 (concerning consultation) of the 1986 Act provides only for optional consultation, inter alia, with persons representing the class of persons concerned.

The Committee notes with regret that the Government's report does not contain any indications with respect to the above request. It hopes that the Government will indicate any measures taken or contemplated to ensure the application of the provisions of the Convention, and in particular of Article 3, paragraph 2(3), with regard to the proclamation made under the 1986 Act. It also hopes that the Government will provide information on any proclamation made under this Act that involves suspension of or exemption from enactments concerning the minimum rates of wages.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

Article 3, paragraph 2(1) and (2), of the Convention.

1. With reference to the previous comments concerning the equality between employers and workers as to consultation and association in the minimum wage fixing, the Committee notes that the Government cites some provisions of the Wage Act, 1957, concerning the appointment of assessors to assist the Wage Board during the investigation of a particular trade. The Committee notes that, although these provisions require the number of assessors to represent the employers to be equal to that of the workers, the appointment of such assessors itself is not mandatory. It therefore requests the Government to indicate whether, in practice, the equal number of assessors representing the employers and the workers have been appointed under these provisions.

2. In the previous comments, the Committee requested the Government for detailed information on the consultations with the employers and workers regarding the minimum wage fixing in pursuance of proposals by employers under section 51A of the Labour Relations Act, 1956, as amended in 1981. The Government indicates that the policy of the Minister of Manpower in exercising the powers under this section is that the industry concerned must be sufficiently organized and that the parties concerned are sufficiently representative. It further states that in all cases where possible known trade unions are consulted. The Committee notes these indications. It would point out that section 51A of the said Act which empowers only the employers to submit such proposal that initiates one of the minimum wage fixing procedures does not appear to meet the requirement of the provision of the Convention that the employers and workers concerned should be associated in the operation of the machinery "in equal numbers and on equal terms". The Committee also recalls that, as it has pointed out in paragraph 203 of the General Survey of 1992 on Minimum Wages, one of the reasons advanced for the adoption of the Convention was the lack of organization of workers or the weakness of their organizations. Given, in addition, the terms used in these provisions (i.e. "representatives of the employers and workers concerned" (Article 3, paragraph 2(1)), and "the employers and workers concerned" (paragraph 2(2))), the fact that the workers are not sufficiently organized cannot be considered as a valid reason for not consulting the workers concerned. The Committee therefore requests the Government to indicate any measures taken or envisaged to bring the provisions of section 51A of the above-mentioned Act and their practical application into conformity with these requirements of the Convention. It would also be grateful to the Government for supplying information on the results of minimum wage fixing through this procedure, including the numbers of workers covered and the minimum rates fixed in accordance with Article 5.

Article 3, paragraph 2(3). Noting the Government's indication that during the period covered by the report no exemptions from the requirement to pay minimum wages were granted under section 51A(5) of the Labour Relations Act, the Committee requests the Government to continue supplying information on this matter in future reports.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

1. The Committee referred in the previous comments to the Temporary Removal of Restrictions on Economic Activities Act of 1986, under which the State President may, by proclamation, suspend, or grant exemption from, the provisions of any enactment having force of law. It requested the Government to indicate measures taken to ensure that the application of the provisions of the Convention is not affected by proclamation made under the Act of 1986.

The Committee notes the Government's indication that the objective of this 1986 Act can better be achieved by way of exemption which is subject to consultation between the parties concerned. It recalls that Article 3, paragraph 2(3), of the Convention requires minimum rates of wages to be binding on the employers and workers concerned and does not allow abatement except by collective agreement with the general or particular authorization of the competent authority. The Committee also notes that section 2 (concerning consultation) of the 1986 Act provides only for optional consultation, inter alia, with persons representing the class of persons concerned.

The Committee requests the Government to indicate any measures taken or contemplated to ensure the application of the provisions of the Convention, and in particular of Article 3, paragraph 2(3), with regard to the proclamation made under the 1986 Act. It also requests the Government to provide information on any proclamation made under this Act that involves suspension of or exemption from enactments concerning the minimum rates of wages.

2. With reference to the previous comments concerning the fixing and implementation of the minimum wages in the metal industry, the Committee notes that the Government refers to the latest Iron, Steel and Metallurgical Industry's Main Industrial Council Agreement concluded on 3 September 1991 and provides a list of the representative employers' amd workers' organizations concerned. The Government indicates that a copy of this agreement, which expired on 30 June 1992, has already been submitted to the Committee and that no collective agreement fixing minimum wages is currently in force in this industry, a new agreement still being under negotiation.

The Committee notes this information. It also notes that the copy of the above-mentioned agreement has not been received.

The Committee notes the information provided in the Special Report of the Director-General on the Application of the Declaration concerning Action against Apartheid in South Africa (ILC, 79th Session 1992) according to which an agreement in the steel industry between the National Union of Metalworkers of South Africa (NUMSA), the Confederation of Metal and Building Unions (CMBU) and the Steel and Engineering Industries Federation of South Africa (SEIFSA) included wage increases.

The Committee again requests the Government to communicate copies of any collective agreements fixing minimum wages currently in force in the metal industry. It also requests the Government to indicate any measures taken or envisaged for the regulation of minimum wages during the period for which there is no collective agreement in force for this purpose.

3. The Committee notes the Government's statement that the areas of Transkei, Bophuthatswana, Venda and Ciskei can be approached directly for information concerning the application of the Convention. With reference to the general observations it has been making, the Committee can only reiterate its request that the Government should provide full information on the application of the Convention in these areas.

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

Article 3, paragraph 2(1) and (2), of the Convention. 1. In previous comments, the Committee noted that under the Wage Act of 1957 there is no requirement that workers or their representatives be always consulted before the minimum wage rates are set, although there are provisions allowing them to make submissions along with the general public or other interested parties. It also pointed out that the supplied information indicates that the employers concerned were consulted and were even empowered to make proposals for the fixing of minimum wage rates, and it requested the Government to indicate the measures taken or contemplated to meet the requirements of Article 3, paragraph 2(2), of the Convention as regards equal treatment of workers and employers.

The Government states that employers and employees are in fact invited to make written or oral representations to the Wage Board before wages are determined by the Board. The Committee requests the Government to supply further information on measures taken or envisaged to ensure that such representations of the employers and workers are made in any case on equal terms. In this connection, the Committee notes the Government's statement that provisions also exist for representatives in equal numbers of employers and employees to be appointed as assessors to assist the Board during the investigation of a particular trade. It asks the Government to detail such provisions in the next report.

2. With reference to the Labour Relations Act, 1956, as amended in 1981, under section 51A of which the Minister of Manpower may make a wage order binding upon employers and employees, after consultation with the Wage Board established by the Wage Act, following proposals submitted by employers engaged in any undertaking, industry, trade or occupation in any area in respect of which no industrial council is registered, the Government states that although there is no legal requirement for employers and employees concerned to be consulted before minimum wage rates are implemented, such consultations are in fact a prerequisite set by the Minister for the application of negotiated wage agreement to them. The Committee again points out that the Convention requires that the workers or their representatives always be consulted before fixing minimum wages and that the employers and workers be associated in the operation of the minimum wage-fixing machinery in any case in equal numbers and on equal terms. The Committee requests the Government to indicate, in addition to providing information on the measures to ensure the equal association of the employers and workers in the Wage Board, as requested above, in detail in what manner the consultations with the employers and workers that the Government refers to have been held.

Article 3, paragraph 2(3). 3. The Committee notes from the Government's report that during the period covered by the report no exemptions in terms of section 51A(5) of the Labour Relations Act were granted from the requirement to pay minimum wages. The Committee hopes that the Government will continue to supply information on this matter in future reports.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

1. The Committee notes that under the Temporary Removal of Restrictions on Economic Activities Act of 1986, the State President may, by proclamation, suspend, or grant exemption from, the provisions of any enactment having force of law (but excluding an Act of Parliament) if he is of the opinion that circumstances exist under which the application of such law, or compliance with any condition, limitation or obligation relating to the carrying on or exercising of an undertaking, industry, trade or occupation unduly impedes the economic progress of the persons engaged in the carrying on or exercising of that undertaking, industry, trade or occupation, or competition in the fields in question, or the creation of job opportunities.

The Committee requests the Government to indicate any measures taken or contemplated to ensure that the application of the provisions of the Convention is not affected by proclamation made under the Act of 1986.

2. In its previous observation, the Committee noted comments from the International Metalworkers' Federation transmitting a memorandum from the Metal and Allied Workers' Union of South Africa, according to which wages below the minimum fixed were being paid in part of the metalworking industry, in particular at the Transvaal Alloys (Pty) Ltd. The Committee noted that, from the Government's reply to these comments, it appeared that the workers in the metalworking industry were not covered by generally applicable minimum wages rates, since minimum wages were fixed on an undertaking basis by in-house collective agreements; the Government considered that the minimum wage-fixing system contemplated in the Convention was not applicable to this sector, or at least was not applicable to all parts of it. The Committee requested the Government to indicate the consultations carried out with the employers' and workers' organisations in the trade or part of the trade concerned, as required in Article 2 of the Convention.

The Committee notes from the Government's report that the Labour Relations Act provides for the registration of employers' organisations and trade unions which may establish industrial councils on which the parties are equally represented; such councils are registered under the Act for a particular industry and area. In the metalworking industry, the minimum wages being paid in certain sectors are contained in separate collective agreements entered into between some of the trade unions and employers' organisations or individual employers. The Government states that the Wage Act of 1957 is complementary to the Labour Relations Act of 1956 and is primarily designed for the prescription of minimum wages for industries and trades in which employers and employees are not sufficiently organised to permit their negotiating collective agreements. Consequently, minimum wages cannot be fixed in terms of the Wage Act for workers to whom collective agreements apply. The various employers' organisations and trade unions which are parties to the industrial council for the metal industry have, after consultations between themselves, opted for the regulation of minimum wages in that industry by collective agreements.

The Committee takes note of this information.

The Committee notes the information provided in the Special Report of the Director-General on the Application of the Declaration concerning the Policy of Apartheid in South Africa (ILC, 75th Session, 1988) according to which the Metal and Allied Workers' Union, which merged with other unions to form the National Union of Metalworkers of South Africa (NUMSA), rejected an agreement reached with the employers in July 1987 by certain smaller unions within the industrial council for the metal industry. The Minister of Manpower extended the life of the industrial council agreement of the previous year by virtue of provisions of the Labour Relations Act authorising such extension when requested by both parties and prohibiting strikes during the currency of an agreement.

The Committee requests the Government to indicate the representative employers' and workers' organisations concerned in the metalworking industry which have been associated in the operation of the industrial council machinery for the metal industry and whether they have been so associated in equal numbers and on equal terms. It also requests the Government to communicate copies of any collective agreements fixing minimum wages currently in force in this industry.

3. The Committee notes that the Government's report contains no information on the application of the Convention in the areas of Transkei, Bophuthatswana, Venda and Ciskei to which the Convention also applies. It requests the Government to provide full information on the application of the Convention in these areas.