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Comments adopted by the CEACR: South Africa

Adopted by the CEACR in 2020

C029 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Articles 1(1) and 2(1) of the Convention. Trafficking in Persons. In its previous comments, the Committee took note of the Prevention and Combating of Trafficking in Persons Act (PCTP Act) of 2013, which prohibits trafficking in persons and related activities, and provides for the protection of victims of trafficking. The PCTP Act also provides for the adoption of a National Policy Framework. The Committee further noted that the National Prosecuting Authority (NPA) was at the advanced stages of finalizing and issuing the directives for the implementation of the PCTP Act. In addition, prosecutors had undertaken training since 2013 on trafficking in persons and related matters. The Committee requested the Government to pursue its efforts to prevent, suppress and combat trafficking in persons.
The Government indicates in its report that it launched the Prevention and Combating of Trafficking in Persons National Policy Framework (NPF) on 25 April 2019, to promote a cooperative and aligned response to trafficking among all government departments and with civil society organizations engaged in assisting and supporting victims of trafficking. The NPF intends to support the implementation of the PCTP Act. Its strategic objectives are to: prevent trafficking in persons, including through awareness-raising and reducing vulnerability to trafficking and re-trafficking; establish a coordinated and cooperative institutional framework to combat trafficking; establish an adequate regulatory framework to combat trafficking; secure resources; and identify potential and presumed victims of trafficking and provide them with comprehensive assistance.
The Committee notes that the NPF contains a national anti-trafficking strategy, which outlines the strategic goals and specific objectives to be achieved to facilitate a comprehensive implementation of the PCTP Act, as well as a national anti-trafficking action plan, detailing how to achieve these goals and objectives.
In its report under the Worst Forms of Child labour Convention, 1999 (No. 182), the Government indicates the establishment of the National Inter-Sectorial Committee on trafficking in persons, consisting of national departmental representatives, the NPA and civil society organizations, which leads the implementation and administration of the PCTP Act at the national level. The Government also indicates in its report under Convention No. 182 that provincial trafficking in persons task teams and provincial rapid response teams were established to deal with and monitor complaints and, pending cases of trafficking in persons, and to provide support to victims.
The Government further indicates, in its report under the present Convention, that South Africa is a primary destination for trafficking in persons in the Southern African region and within Africa at large, and a country of origin and transit for trafficking in persons to Europe and North America. Men and women are trafficked for the purposes of labour and sexual exploitation. The Government reports that foreign male victims of forced labour have been detected on fishing vessels in South African territorial waters. It states that trafficking in persons is rooted in South Africa’s landscape due to the country’s deep structural inequalities and that a cultural shift and a systemic response are needed in this regard, including to detect suspicions of corruption.
The Committee notes the information from the United Nations Office on Drugs and Crime (UNODC) Regional Office for Southern Africa, according to which there is a limited number of shelters for male victims of trafficking in persons in South Africa.
The Committee notes that, although two regulations were adopted in August and October 2015 under sections 43(1)(a) and 43(3) of the PCTP Act, it does not appear that regulations envisaged under section 43(1)(b) and 43(2) of the PCTP Act were formulated and adopted. It notes that regulations under section 43(1)(a) of the PCTP Act relate to the creation of a mechanism to facilitate the implementation of the Act. Regulations under section 43(2) concern the recovery and reflection period for foreign victims of trafficking and their repatriation in their country of origin. Noting the efforts made to combat trafficking in persons, the Committee strongly encourages the Government to continue to take measures in this regard, especially in light of the prevalence of the phenomenon in the country. It requests it to provide information on the implementation and results of the national Policy Framework on prevention and combating of trafficking in persons, including in the areas of prevention of trafficking and identification of victims. It further requests the Government to provide information on the activities of the National Inter-Sectorial Committee on trafficking in persons, as well as of the provincial trafficking in persons task teams and provincial rapid response teams, and on the impact of these activities on the reduction of trafficking in persons. It also requests the Government to indicate the assistance and protection services provided to victims of trafficking, as well as the number of victims that have benefited from such services. Lastly, the Committee requests the Government to provide information on any regulations made under sections 43(1)(b) and 43(2) of the PCTP Ac, and, where possible, to provide a copy of them.
Article 25. Penal sanctions. The Committee previously noted that section 13(a) of the PCTP Act provides that a person convicted of trafficking is liable to a fine or imprisonment, up to life imprisonment. It observed that persons convicted of trafficking in persons might be punished only with a fine. The Committee accordingly requested the Government to provide information on the application of the PCTP Act, in particular on the specific penalties imposed on persons under section 13(a).
The Committee notes the absence of information in the Government’s report in this respect. It notes the 2018/2019 Annual Report of the South African police service, which indicates that between 1 April 2018 and 31 March 2019, a total of 448 victims of trafficking in persons were rescued (page 214). Referring to its 2012 General Survey on the fundamental Conventions, the Committee recalls that the possibility of imposing only a fine on a person committing the offence of trafficking in persons does not constitute a sufficiently effective penalty, in light of the seriousness of the violation and the dissuasive character that the sanction should have (paragraph 319). The Committee urges the Government to take the necessary measures to ensure thorough investigations and prosecutions of the perpetrators of the above-mentioned cases of trafficking in persons that have been uncovered by the South African police service, and to provide information on any convictions and penalties imposed on these perpetrators. It once again requests the Government to supply information on the application in practice of the provisions of the PCTP Act regarding trafficking in persons, including the number of persons convicted, as well as the number and nature of penalties imposed.
The Committee is raising other matters in a request addressed directly to the Government.

C029 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 2(2)(c) of the Convention. Work of prisoners for private enterprises. In its previous comments, the Committee noted that, pursuant to sections 37(1)(b), 40(1) and 40(2) of the Correctional Services Act of 1998, a sentenced offender is obliged to perform labour. In addition, by virtue of section 23(2)(a) of the Correctional Service Regulations, private entities are allowed to hire convicted persons to perform labour against a prescribed tariff. The Committee noted that offenders who perform labour were paid a gratuity, and that the hirers of prison labour were responsible for performing the duties of correctional officers in terms of safety, security and care. It observed that the described working conditions of prisoners for private enterprises did not appear to approximate a free labour relationship in terms of wages or measures related to occupational safety and health, and requested the Government to take the necessary measures to ensure that prisoners might only perform work for private enterprises with their formal and informed consent and in conditions of work approximating a free labour relationship.
Noting that this issue has been raised since 2010, the Committee notes with regret the absence of information in the Government’s report on this point. The Committee observes that, according to the Strategic Plan for 2015/2016–2019/2020 of the Department of Correctional Services, public-private partnerships were concluded in 2000 for the design, construction, financing and operation of the Mangaung and Kutuma-Sinthumule correctional centres, for a duration of 25 years. The Committee further notes that, according to the prison visit report of the Constitutional Court of South Africa, the Mangaung correctional centre houses 2,982 inmates (page 2). The Committee once again recalls that, under Article 2(2)(c) of the Convention, the term “forced or compulsory labour” shall not include any work or service exacted from any person as a consequence of a conviction in a court of law but only if two conditions are met, namely: that the said work or service is carried out under the supervision and control of a public authority; and that the said person is not hired to, or placed at the disposal of private individuals, companies or associations. If either of the two conditions is not observed, compulsory labour exacted from convicted persons under these circumstances is prohibited by virtue of Article 1(1) of the Convention. Therefore, prisoners’ work for private entities is permissible under Article 2(2)(c) only if prisoners voluntarily enter into such an employment relationship without being subjected to pressure or the menace of any penalty, and perform work in conditions approximating a free employment relationship. This arrangement necessarily requires the formal, free and informed consent of the person concerned, as well as further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages, social security and occupational safety and health (2012 General Survey on the fundamental Conventions, paragraphs 279 and 291). The Committee therefore requests the Government to take the necessary measures without delay to ensure that convicted persons who perform work for private entities undertake it voluntarily, with their formal, freely given and informed consent, and with working conditions approximating those of a free labour relationship. The Committee requests the Government to provide information on the progress made in this regard.

C081 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Articles 5(a) and 9 of the Convention. Effective cooperation and the association of duly qualified technical experts and specialists in the work of the labour inspection services. The Committee previously noted that Department of Labour associates “approved inspection authorities” (AIAs) in the work of the labour inspection services, responsible for controls in the area of occupational safety and health (OSH) and other specialist inspectors.
The Committee notes the organizational chart of the labour inspection services, provided by the Government in its report in response to the Committee’s previous request, which indicates that a Chief Directorate on OSH, reporting to the Inspector General, is responsible for OSH inspections. The Government refers to the powers and functions of inspectors, as set out in sections 28–30 of the Occupational Health and Safety Act (OHSA), including that inspectors have the special power to impose sanctions, pursuant to section 30 of the OHSA. The Government states that AIAs and other bodies in the field of OSH are part of the self-regulatory framework in order to provide expertise services to the business, and that they do not have the authority to inspect or investigate workplaces as inspectors unless instructed to do so by the chief inspector or provincial director. Moreover, the Government refers to the definition of AIA under section 1(1)(i) of the OHSA and provides the example of AIA inspection regulations on the accreditation for the inspection of electronic installations. The Government also states that AIAs and other bodies created by OHSA are audited periodically and monitored by both the Inspection and Enforcement Services Branch (IES) and the South African National Accreditation Services (SANAS). However, the Committee notes from the information in the 2018–2023 Decent Work Country Programme (DWCP) report that the shortage of qualified OSH inspectors has forced the Government to rely heavily on the outsourcing of OSH inspection services which are not well regulated. Emphasizing that labour inspection is a public function, and with reference to its comments below on Articles 10, 11 and 16, the Committee requests the Government to provide information on the measures it is taking to address the identified shortage of qualified OSH inspectors. The Committee requests the Government to provide further information on the role and activities of the AIAs, including on the interaction between these private entities and the OSH Directorate, on how possible conflicts of interest are avoided or monitored with respect to AIAs and the employers they inspect or investigate, and a list of such accredited AIAs. It also requests the Government to provide information on results of the periodical audit or monitoring carried out by the IES and the SANAS of the activities of AIAs.
Article 5(b). Effective collaboration between the labour inspection services and employers and workers or their organizations. The Committee previously noted the Government’s indication that the Department of Labour worked closely with bargaining councils, and it requested information on this collaboration.
The Committee notes from the information in the 2018–2023 DWCP report that a roundtable discussion by the IES and the Social Partners at the National Economic Development and Labour Council was held to discuss the implementation of the Convention and to begin a process of fostering greater collaboration around workplace compliance. The Committee further notes the indication in the DWCP that collaboration between the Government and the social partners in respect of inspections and workplace compliance still needs improvement. The Committee requests the Government to provide detailed information on the measures taken or envisaged to improve collaboration between the inspectorate and the social partners in respect of inspections and workplace compliance. In addition, the Committee once again requests the Government to provide further information on the collaboration of labour inspectors with bargaining councils.
Articles 6 and 7. Status and conditions of service of labour inspectors. Capacity of labour inspectors. The Committee previously noted the shortage of qualified labour inspectors owing to a high turnover of labour inspectors and the lack of suitably qualified candidates. The Committee notes the Government’s indication that, in order to address such a challenge, training opportunities, including overseas study travel, are provided to all staff, in particular juniors. The Government also indicates that it is in the process of establishing an academy for the inspectorate. In response to the Committee’s previous request on conditions of service, the Government indicates that the labour inspectors are paid at various salary levels linked to historical circumstances. As public sector employees, they are also provided with medical aid, a pension, a housing allowance, study subsidies, motor vehicles and IT equipment. However, the Government indicates that employees at the Department of Mineral Resources and Energy are paid at a higher level than OSH inspectors. Referring to its 2006 General Survey on labour inspection, paragraph 209, the Committee emphasizes the importance it places on the treatment of labour inspectors in a way that reflects the importance and specificities of their duties and that takes account of personal merit. The Committee therefore requests the Government to provide information on any measures taken or envisaged to review the conditions of service of labour inspectors, including their status compared with other public servants exercising similar functions. It also requests the Government to continue providing concrete information on the nature of challenges to attract, recruit and retain qualified labour inspectors and the measures taken or envisaged to address them. The Committee further requests the Government to provide further specific information on the content, frequency and duration of the training provided to labour inspectors, including progress with respect to the establishment of an academy for the inspectorate.
Articles 10, 11 and 16. Sufficient number of labour inspectors and adequate coverage of workplaces by labour inspection. Material conditions. The Committee previously noted that the IES is underfunded and understaffed. It requested the Government to provide information on the needs determined by the Department of Labour in terms of the budgetary and human resources for the effective discharge of the labour inspection functions and on any efforts undertaken to meet these needs.
The Committee notes the Government’s indication that there is a shortage of budget and human resources, in particular in relation to the recruitment of inspectors in the field of employment equity. Due to the funding reduction, the planned recruitment of 200 interns in the field of employment equity did not take place. The Government states that funding will be further reduced over the next three years. However, the Government also states that the Department of Labour will recruit 500 additional OSH inspectors (175 currently), financed by the Compensation Fund for occupational injuries and diseases. It further indicates that the work of newly recruited inspectors will primarily focus on OSH in small and medium enterprises and informal economy, and that there will be a greater focus on the occupational medicine and hygiene over the next ten years. The Committee notes that, according to the information of the Annual Report of the Department of Labour, the number of inspectors decreased from 1,452 in March 2015 to 1,412 in March 2019. It further notes that the number of inspections carried out increased by 21 per cent from 181,548 in 2014 to 218,919 in 2018. The Committee requests the Government to continue to provide information on the measures it is taking to address the identified budgetary and human resources shortage, in order to ensure the effective discharge of the labour inspection functions, and to provide information on any results achieved. It requests the Government to continue providing information on any efforts undertaken to meet these needs so as to achieve a sufficient coverage of workplaces by labour inspection. In particular, the Committee requests the Government to provide information on the follow-up to the planned recruitment of 500 additional OSH inspectors, including information on the procedures for their recruitment and the induction training planned.
Article 12(1)(a) and (b). Free access of labour inspectors to workplaces liable to inspection at any hour of the day or night. The Committee previously noted that section 65(1) of the Basic Conditions Employment Act (BCEA) provides that labour inspectors may only enter workplaces “at any reasonable time”. It notes the Government’s explanation that “reasonable time” is not a constraint in that an inspector may enter any workplace at any time within its existing operating time. The Government states that, if the business operates from Monday to Friday, it will not be reasonable for the inspector to enter the workplace on Saturday or Sunday, or if the business operates during the day, it would not be reasonable to inspect at night. The Government further states that this is addressed in the Standard Operating Procedure (SOP) for inspectors. The Committee recalls that Article 12(1)(a) of the Convention provides that labour inspectors shall be empowered to enter freely and without previous notice “at any hour of the day or night” any workplace liable to inspection, and Article 12(1)(b) provides that labour inspectors shall be empowered to enter “by day” any premises which they may have reasonable cause to believe to be liable to inspection. Referring to its 2006 General Survey on labour inspection, paragraph 270, the Committee recalls that it should be for the inspector to decide whether the timing of a visit is reasonable, such as when checking for violations that concern abusive night work conditions in a workplace officially operating during the daytime, but that obviously inspections should only be carried out at night or outside working hours where this is warranted. The Committee requests the Government to take the necessary measures to bring the national law and practice into conformity with the requirements set out in Article 12(1)(a)–(b) of the Convention. Pending the adoption of such measures, it requests the Government to provide further information on the conditions under which inspectors may enter the workplace outside of the operating time of the business concerned, and to provide a copy of the Standard Operating Procedure referenced by the Government.
Article 15(c). Obligation concerning the confidentiality of the source of a complaint and the fact that an inspection visit was made in consequence of a complaint. The Committee previously noted the absence of relevant provisions in the national legislation regarding the principle of confidentiality set forth in Article 15(c) of the Convention. The Committee notes the Government’s statement that inspectors are not permitted to reveal the source of any complaint, and that employers may obtain such information through an official process under the Promotion of Access to Information Act (PAIA), or apply for a court ruling if not granted under the PAIA. The Government also states that, in the context of a broader policy change, access to such information is possible only with the involvement of legal services. The Committee recalls that, by virtue of Article 15(c) of the Convention, labour inspectors shall treat as absolutely confidential the source of any complaint bringing to their notice a defect or breach of legal provisions and shall give no intimation to the employer or his representative that a visit of inspection was made in consequence of the receipt of such a complaint, and further recalls that without such absolute confidentiality workers might hesitate to turn to the labour inspectorate for fear of reprisals. The Committee once again requests that the Government take the necessary measures to ensure the principle of confidentiality set forth in Article 15(c) of the Convention. It requests the Government to provide information on any progress made in this regard.
Articles 20 and 21. Publication and communication of annual labour inspection reports. Following its previous comments, the Committee notes the Annual Reports of the Department of Labour contain information on the staff of the labour inspection service (Article 21(b)), the number of labour inspection visits undertaken (Article 21(d)), the number of improvement notices, compliance orders, and referrals to the courts (Article 21(e)), and the number of reported industrial accidents (Article 21(f)). The Committee also notes the Government’s indication that it is taking measures to improve the collection of information and that the annual reports with all the information required will be made available in the future. The Government indicates that the information on occupational injuries and diseases will also be made available through the statistics of the Compensation Fund. The Committee further notes from the information in the 2018–2023 DWCP report that while there have been efforts to improve the collection of inspection data including through electronic means, the use of information and communications technologies has been less than optimal and serious failures in the management of new technologies are often experienced. Therefore, the need to improve the capacity of the IES to collect and analyse data and statistics becomes critical to produce evidence-based interventions that can enhance workplace compliance. The Committee requests the Government to continue its efforts to ensure that the central authority publishes and communicates to the ILO an annual report on labour inspection activities containing all the information required by Article 21, including information on the statistics of workplaces liable to inspection and the number of workers employed therein (Article 21(b)), and statistics of occupational diseases (Article 21(g)). In this regard, the Committee also requests the Government to provide information on the measures taken or envisaged to improve the collection of inspection data, including through electronic means.

C105 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 1(c) of the Convention. Disciplinary measures applicable to seafarers. In its previous comments, the Committee noted that certain provisions of the Merchant Shipping Act of 1951 were incompatible with Article 1(c) of the Convention. In particular, it noted that sections 321, 322 and 180(2)(b) provided for the forcible conveyance of seafarers on board ship to perform their duties. It also noted that, pursuant to section 313, penalties of imprisonment (during which prison labour may be imposed, according to section 37(1)(b) of the Correctional Services Act, 1998) might be imposed for breaches of discipline by seafarers, including: wilfully disobeying any lawful command or neglecting duty; combining with any of the crew to disobey lawful commands, neglect duty, impede the navigation of the ship or retard the progress of the voyage; preventing, hindering or retarding the loading, unloading or departure of the ship; desertion; and absence without leave. The Committee noted, with concern, that the Merchant Shipping Amendment Act, 2015, did not amend any of the above-mentioned provisions, and expressed the firm hope that the Merchant Shipping Act of 1951 would be reviewed, to be in conformity with Article 1(c) of the Convention.
The Committee notes that the Government’s report does not provide any information on this point. The Committee takes note of the Merchant Shipping Bill, 2020, which was published for public comments in Government Gazette No. 43073 of 6 March 2020. The Committee observes that sections 397, 398 and 142(3) of the Merchant Shipping Bill, 2020, reproduce, in the same terms, sections 321, 322 and 180(2)(b) of the Merchant Shipping Act of 1951, on the forcible conveyance of seafarers on board ship. The Committee also notes that, according to section 372 of the Bill, penalties of imprisonment (during which prison labour may be imposed) may still be imposed for breaches of discipline by seafarers, including wilfully disobeying any lawful command or neglecting duty (section 134(2)(b) and (c)); combining with any of the crew to disobey lawful commands, neglect duty, impede the navigation of the ship or retard the progress of the voyage (section 134(2)(d)); preventing, hindering or retarding the loading, unloading or departure of the ship (section 134(2)(f)); desertion (section 138(1) and (2)); and absence without leave (section 139 (1) and (2)). The Committee is therefore bound to note with deep concern that the Merchant Shipping Bill, 2020, contains the same provisions as the Merchant Shipping Act of 1951, affecting the application of the Convention, despite repeated comments by the Committee since 2004. The Committee wishes to recall that Article 1(c) of the Convention expressly prohibits the use of any form of forced or compulsory labour as a means of labour discipline, covering both the due performance of a worker’s service under compulsion of law (in form of physical constraint or the menace of a penalty), and sanctions for breaches of labour discipline (such as disobedience, desertion or absence without leave) involving an obligation to perform labour. Only sanctions relating to acts that are likely to endanger the safety of the ship, or the life or health of persons (such as provided for in section 134(1) of the Merchant Shipping Bill, 2020), are excluded from the scope of application of the Convention. The Committee expresses the firm hope that the Government will take into account the Committee’s comments to review the Merchant Shipping Bill, 2020, with a view to bringing it into conformity with the Convention. In this regard, it urges the Government to ensure that breaches of discipline, especially those provided for in section 134(2)(b), (c), (d) and (f), section 138(1) and (2) and section 139(1) and (2) of the Merchant Shipping Bill, are not punishable with penalties of imprisonment involving compulsory labour, where the ship or the life or health of persons are not endangered. It also urges the Government to repeal sections 397, 398 and 142(3), which allow for the forcible return of seafarers on board ship to perform their duties, or to restrict their application to situations where the ship or the life or health of persons are endangered.
The Committee is raising other matters in a request addressed directly to the Government.

C105 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 1(a) of the Convention. Sanctions involving compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. The Committee notes that, according to court rulings of the High Court of South Africa and the Supreme Court of Appeal of South Africa, the offence of public violence consists in the unlawful and intentional commission, together with a number of people, of an act or acts which assume serious dimensions and which are intended forcibly to disturb public peace and tranquillity or to invade the rights of others (for instance, in case no. SH187/2018 and case no. 444/08). It further notes that, in the case no. SH187/2018 of the High Court of South Africa, the accused was sentenced to one year of imprisonment (during which prison labour may be imposed, according to section 37(1)(b) of the Correctional Services Act, 1998), suspended for a period of three years, for acts of unlawful assembly causing the road to be blocked. The Committee requests the Government to provide information on the manner in which the concept of public violence is interpreted by the courts, and to specify the legal provisions on which the courts have based their interpretation. It also requests the Government to provide examples of the acts that have given rise to penalties for public violence and to specify the nature of the penalties imposed.

C138 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 1 of the Convention. National policy designed to ensure the effective abolition of child labour and application of the Convention in practice. The Committee previously noted from the Government’s replies to the list of issues raised by the Committee on the Rights of the Child (CRC) of 15 August 2016 that data from the Department of Labour indicated that 784,000 children were involved in economic activities between 2013 and 2016. The CRC expressed its concern in its concluding observations of 30 September 2016 that the activities of some business enterprises, in particular, those of extractive industries, had a negative impact on the enjoyment of the rights of the child, including through the exploitation of child labour (paragraph 17). It also expressed its concern at the persistent wide engagement of children in child labour, in particular in agriculture (paragraph 65). The Committee requested the Government to strengthen its efforts to ensure the progressive elimination of child labour, and to take the necessary measures to ensure that sufficient up-to-date data on the situation of working children is made available.
The Committee notes the Government’s information in its report that the National Day Against Child Labour has been commemorated in eight of the nine provinces in order to raise awareness against child labour. It also notes the Government’s information in its report under the Worst Forms of Child Labour Convention, 1999 (No.182) that the National Child Labour Programme of Action which is aimed at addressing child labour in the country is being implemented and is now on Phase IV covering 2017–21. The Committee further notes the Government’s information that according to the Survey of Activities of Young People, 2015, (SAYP 2015) of the 11.2 million children between the ages of 7 and 17 years, 577,000 children are involved in child labour, a decrease from 779,000 in 2010. The province of KwaZulu-Natal has the highest rate with about one out of ten children engaged in child labour. Children were mainly involved in production and trade of goods and services, including in private households (52.6 per cent), followed by agriculture (46.9 per cent) and transport services (25.3 per cent). While noting the measures taken and positive results achieved in terms of the reduction of child labour, the Committee requests the Government to pursue its efforts to ensure the progressive elimination of child labour in the country. It further requests the Government to provide information on the measures taken in this regard, including the concrete measures taken within the framework of the Child Labour Action Programme 2017-2021, and the results achieved in terms of the number of children withdrawn from child labour.

C182 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 5 of the Convention. Monitoring mechanisms and application of the Convention in practice. In its previous comments, the Committee noted that, according to the Survey of Activities of Young People 2010 (SAYP 2010), exposure to hazardous work was common among children aged 7 to 17 who were engaged in economic activities, which indicated 42.3 per cent among children aged 7–10, 41.8 per cent among children aged 11–14 and 41.3 among children aged 15–17. Moreover, a total of 90,000 children were reported to have been injured in the 12 months preceding SAYP 2010 while doing an economic work activity. The Committee urged the Government to intensify its efforts to eliminate the worst forms of child labour, in particular hazardous work, including information on the number and nature of infringements reported by the labour inspectorate.
The Committee notes that the Government’s report does not provide any information on this point. However, the Committee notes the information provided by the Government under the Labour Inspection Convention, 1947 (No. 81), that the restructuring and professionalization of the labour inspectorate is on-going. This report also indicates that the labour inspectors are provided with extensive trainings on various programmes to develop their competencies and access to a motor vehicle scheme and to a motor vehicle pool has been established. Moreover, various innovative initiatives are being piloted and implemented for an able functioning of the inspectorate, including measures to improve the collection of information and data relating to labour inspection activities.
The Committee notes that according to the findings of the SAYP 2015, 34.2 per cent of the total number of 577,000 children aged 7–17 years who are involved in child labour, work in hazardous conditions, including working in dusty conditions, extreme temperatures or humidity and work in water, lake, river and sea. It also notes that the proportion of children exposed to at least one hazardous working condition decreased from 41.8 per cent in 2010 to 34.2 per cent in 2015. The SAYP report further indicates that 84,000 children were injured in the 12 months preceding the survey indicating a decline from 91,000 in 2010. While noting a reduction in the number of children involved in hazardous work, the Committee encourages the Government to continue its efforts, including by strengthening the capacities of the labour inspectorate to ensure that children under the age of 18 years are not engaged in hazardous work. In this regard, the Committee requests the Government to take the necessary measures to promote collaboration between the labour inspectorate and other relevant stakeholders and to provide training to the labour inspectors to detect cases of children engaged in hazardous work. It requests the Government to continue providing information on the measures taken in this regard and on the results achieved.
Article 7(2). Effective and time-bound measures. Clause (d). Identify and reach out to children at special risk. Child orphans of HIV/AIDS and other vulnerable children (OVCs). In its previous comments, the Committee noted that the Department of Social Development (DSD) provides support to OVCs through a basket of services, including food support, home care, drop-in centres and psychosocial support through Home and Community-Based Care (HCBC) workers. However, noting that the number of OVCs due to AIDS aged 0–17 remained high at approximately 2.1 million children (2015 UNAIDS estimates), the Committee urged the Government to strengthen its efforts to ensure the protection of OVCs from the worst forms of child labour and to provide information on the time-bound measures taken in this regard.
The Committee notes the Government’s information that in response to the growing number of orphans and vulnerable children due to the HIV/AIDS epidemic, the DSD has partnered with the National Association of Child Care Workers (NACCW) to roll out a five-year intervention programme known as Isibindi, which means bravery or courage in isiZulu. Isibindi is a community-based child and youth care prevention and early intervention service that provides support to vulnerable children, including through improving the well-being and educational outcomes for children, skills development and creation of job opportunities for young persons which benefitted over one million children. The Committee notes the Government’s indication that the Isibindi, which is being implemented in 367 sites, has been successful in ensuring that vulnerable children remain in school, particularly children in child-headed families. Furthermore, the Department of Basic Education together with the National Student Financial Aid Scheme is providing financial assistance to vulnerable children for their higher studies and technical and vocational education and training. However, according to the UNAIDS estimates of 2019 for South Africa, the number of child orphans due to AIDS aged under 17 has reached approximately 1.4 million. While noting the measures taken by the Government, the Committee must express its concern at the high number of children orphaned by HIV/AIDS who are at an increased risk of being engaged in the worst forms of child labour. The Committee therefore strongly encourages the Government to pursue its efforts to ensure that those children are prevented from being engaged in the worst forms of child labour, in particular by continuing to ensure their access to education and vocational training and providing appropriate assistance and support. The Committee requests the Government to continue to provide information on the concrete measures taken particularly within the framework of the Isibindi initiative, and the results achieved in terms of the number of orphans and vulnerable children withdrawn from the worst forms of child labour and rehabilitated into education or vocational training. To the extent possible, please disaggregate the data provided by gender and age.
The Committee is raising other matters in a request addressed directly to the Government.

C182 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Articles 3(a), 5 and 7(1) of the Convention. Trafficking of children, monitoring and penalties.  In its previous comments, the Committee noted that section 284 of the Children’s Act of 2005 prohibited trafficking of children under 18 years of age or allowing a child to be trafficked. It also noted that a Children’s Act reporting matrix was developed for provincial Departments of Social Development (DSD) and civil society organizations, which are the monitoring mechanisms of the Children’s Act. The Committee further noted that the Prevention and Combating of Trafficking in Persons Act (PCTP Act), which provides for a comprehensive tool to combat trafficking of persons, including trafficking of children came into force in August 2015. The Committee requested the Government to provide information on the application in practice of the PCTP Act and of the Children’s Act.
The Committee notes the Government’s information in its report that the Department of Justice and Constitutional Development, in collaboration with the United Nations Office on Drugs and Crimes (UNODC) launched the Prevention and Combating of Trafficking in Persons National Policy Framework (NPF) in April 2019. The NPF supports the implementation of the PCTP Act and seeks to ensure that all government departments and other engaged stakeholders from civil society are collectively guided in the implementation of anti-trafficking responses and of their statutory responsibilities. The Committee also notes the Government’s information that trainings were provided to immigration officers and prosecutors by the Department of Home Affairs and the National Prosecuting Authority in identifying and dealing with cases related to trafficking in persons. The Government further indicates that a National Inter-sectoral Committee of Trafficking in Persons which comprises of national departmental representatives from Justice and Constitutional Development, Health, Home Affairs, International Relations and Cooperation, Labour, Social Development, the NPA and civil society organizations was established. This Intersectoral Committee leads the implementation and administration of the PCTP Act at the national level. In addition, Provincial Task Teams and Provincial Rapid Response Teams are also established to attend and deal with complaints and pending cases related to trafficking of persons and to ensure the efficient monitoring of such cases.
The Committee, notes moreover the Government’s indication that South Africa is a primary destination for trafficked persons in the Southern African region and within Africa at large as well as an origin and transit country for trafficking to Europe and North America. Men, women and children are being trafficked for forced labour, commercial sexual exploitation and forced begging. Moreover, girls are trafficked internally, from rural to urban areas for sexual exploitation and domestic servitude, while boys are trafficked for work in street vending, begging, agriculture, and mining. The Committee, however, notes that the Government has not provided any information on the application in practice of the PCTP Act and of the Children’s Act in relation to the convictions and penalties applied for the offences of trafficking in children, despite the prevalence of this phenomenon in the country. The Committee therefore requests the Government to provide information on the application of the PCTP Act and of the Children’s Act in practice, including statistics on the number and nature of offences reported, investigations, prosecutions, convictions and penal sanctions imposed with regard to the trafficking of children under 18 years. It also requests the Government to provide information on the activities carried out by the National Inter-sectoral Committee, the Provincial Task Teams, the Provincial Rapid Response Teams and the DSDs as well as the measures taken within the NPF in effectively implementing the PCTP Act and the Children’s Act and their impact in preventing and combating trafficking of children under 18 years of age.
Articles 6 and 7(2) clause(b). Programmes of action to eliminate the worst forms of child labour and effective and time-bound measures to provide the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour. Trafficking in children.  The Committee previously noted that the PCTP Act provided for the protection and assistance for victims of trafficking. It also noted the various provisions under the Children’s Act regarding the reporting of, and dealing with child victims of trafficking, their repatriation, as well as health care services and assistance for children in need of care and protection. The Committee requested the Government to provide information on the number of child victims of trafficking, both internal and transborder, who have benefited from the rehabilitation and social integration measures pursuant to related provisions of the Children’s Act and of the PCTP Act.
The Committee notes that the Government has not provided any information in this regard. However, it notes from the Governments report that one of the objectives of the NPF is to ensure the early identification of potential and presumed victims of trafficking and to ensure their access to comprehensive assistance programmes. In this regard, the Committee notes that the NPF aims to promote a cooperative and aligned response among all government departments as well as with civil society organisations engaged in assisting and supporting victims of trafficking. The Committee also notes the Government’s information that the Global Action to Prevent and Address Trafficking in Persons and the Smuggling of Migrants (GLO-ACT) (2015-2019), a joint initiative by the European Union (EU) and the UNODC is being implemented in partnership with the International Organization for Migration and UNICEF. This project aims to support the development of more effective responses to trafficking and smuggling, including providing direct assistance to victims of trafficking and vulnerable migrants through strengthening the identification, referral and support mechanisms. The Committee requests the Government to provide information on the specific measures taken within the framework of the NPF and the GLO-ACT in providing for appropriate services and assistance to child victims of trafficking. It also requests the Government to provide information on the impact of such measures, in terms of the number of children who were prevented or withdrawn from trafficking and then rehabilitated and socially integrated.
Article 7(2). Effective and time-bound measures. Clause (a). Preventing the engagement of children in the worst forms of child labour. Access to free basic education.  In its previous comments, the Committee requested the Government to provide information on the concrete measures taken to ensure access to free basic education for all children, and their impact on increasing school enrolment rates and reducing the number of out-of-school children and drop-out rates.
The Committee notes the Government’s information that South Africa has high levels of school enrolment and attendance rates with 98 per cent of children (11.2 million) aged 7-17 years attending some form of education. Out of a total of 11.5 million children of this age group, 254,000 children were reported as not attending school in 2017. The Government indicates that the main set of reasons for non-attendance relate to financial constraints (12 per cent), learner or education system failures (8 per cent), or being unable to perform at school (7 per cent). Moreover, pregnancy accounts for around 7 per cent of drop-out amongst teenage girls. Research indicates that children from more disadvantaged backgrounds with limited economic resources, lower levels of parental education, or have lost their mother are likely to drop out of school. Moreover, physical access to school remains a problem for many children, particularly those living in remote areas. The Committee notes the Government’s statement that the Child Labour Programme of Action- Phase IV, 2017-2021, aims to focus and guide the efforts of the government departments and civil society organisations serving the interest of children. The Committee notes that according to the findings of the Survey of Activities of Young People of 2015, the proportion of children not attending school declined by 0.5 per cent compared to 2010. The Committee further notes from the official website of the Government of South Africa that the Department of Basic Education (DBE) aims to develop, maintain and support a South African School education system for the 21st century through focusing, among others, on accelerating delivery and improving school infrastructure; enhancing teaching and learning; improving Grade 12 completion rates; and implementing the National School Nutrition Programme. The Committee notes that the DBE aims to provide meals to more than nine million children each year. Considering that education is key in preventing the engagement of children in the worst forms of child labour, the Committee encourages the Government to continue its efforts to facilitate access to free basic education of all children, particularly children from disadvantaged communities and in remote areas. It requests the Government to continue to provide information on the measures taken in this regard, and the results achieved, particularly with regard to increasing school enrolment, attendance and completion rates, both at primary and secondary level, and reducing school drop-out rates as well as the number of out-of-school children.

MLC, 2006 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 and in 2016 entered into force for South Africa on 18 January 2017 and on 8 January 2019 respectively. Based on its second review of the information and documents available, the Committee draws the Government’s attention to the following issues.
Impact of the COVID-19 pandemic. The Committee takes note of the observations of the International Transport Workers' Federation (ITF) and of the International Chamber of Shipping (ICS), received by the Office on 1 October 2020 and 26 October 2020, respectively, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with deep concern the impact of the COVID pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 on this issue.
Article I of the Convention. General questions on application. Implementing measures. The Committee notes the Merchant Shipping Bill, 2020, published for public comments in Government Gazette No. 43073 of 6 March 2020, which, if adopted, would repeal the Merchant Shipping Act, 1951, as amended by the Merchant Shipping Amendment Act, No. 12 of 2015 (MSA). Noting that several sections of the MSA, as well as its implementing regulations, currently give effect to the provisions of the Convention, the Committee requests the Government to ensure that the new legislation will continue to reflect the provisions that give effect to the Convention. The Committee also hopes that the Government will take into account its comments formulated below to ensure the conformity of the new legislation with the requirements of the Convention, and reminds the Government that it may avail itself of the technical assistance of the Office in this regard. The Committee further requests the Government to provide a copy of any relevant new legislation or other regulatory instruments implementing the Convention once adopted.
Article II, paragraph 1(f) and 2. Definitions and scope of application. Seafarers. The Committee noted that, while section 2(1) of the MSA excludes masters, pilots or cadets from the definition of “seafarer”, a number of provisions of such Act apply to cadets or masters. Recalling that the Convention does not allow for the partial application of the national law implementing its provisions if the workers concerned are seafarers covered under Article II, paragraph (f) of the Convention, the Committee requested the Government to consider amending the definition of “seafarer” contained in section 2(1) of the MSA.
The Committee notes that chapter 1, section 1 of the Merchant Shipping Bill, 2020, defines “seafarer” as any person who is employed or engaged or works in any capacity on board a ship to which this Act applies. Noting that such definition of “seafarer”, if adopted, would generally bring the legislation in conformity with Article II, paragraph (f) of the Convention, the Committee requests the Government to provide information on progress made in the adoption of this Bill.
Article III. Fundamental rights and principles. Concerning the application of the Abolition of Forced Labour Convention, 1957 (No. 105), in relation to seafarers, the Committee has been raising the need to revise a number of provisions of the MSA, as amended, which provide for imprisonment of seafarers (involving compulsory labour) for certain offences. The Committee once again draws the Government’s particular attention to its comments under Convention No. 105.
Article VII. Consultations. Noting that the South African Transport and Allied Workers Union (SATAWU) and the South African Association of Ship Operators and Agents (SAASOA) are the organizations that the competent authority consults in matters relating to the implementation of the Convention, the Committee requested the Government to provide information on consultations held regarding the provisions of the Convention which specifically require them, such as Standard A1.1, paragraph 4 (types of work likely to jeopardize the health or safety of seafarers under 18), Standard A1.2, paragraph 2 (nature of the medical examination and certificate), Standard A2.1, paragraph 5 (minimum notice periods for the early termination of a seafarers’ employment agreement), Standard A3.1, paragraph 2 (accommodation and recreational facilities), Regulation 4.3, paragraph 2 (national guidelines for the management of occupational safety and health on board ships).
The Committee notes that the Government's report does not contain information in this respect. The Committee also notes that the Merchant Shipping Bill, 2020, provides, among others, for the application of the labour laws to seafarers, the conditions of employment of seafarers and the health and well-being of seafarers on board a vessel. According to the Memorandum of Objects of the Merchant Shipping Bill, 2020, the draft Merchant Shipping Bill was presented and discussed in stakeholders meetings convened nationally by the Department throughout 2018-2019. The Committee therefore requests the Government to provide detailed information on the consultations held concerning the adoption of the Merchant Shipping Bill, 2020, its implementing regulations and any other national measures intended to give effect to the Convention, notably whether consultations have taken place with the shipowners' and seafarers' organizations concerned when required by the relevant provisions of the Convention.
Regulation 1.1 and Standard A1.1, paragraph 4. Prohibition of hazardous work for persons under the age of 18. The Committee previously noted that section 10(3)(a) of the Maritime Occupational Safety Regulations, 1994, provides that the safety officer shall ensure that the crew of the vessel comply with the provisions of the Code of Safe Working Practices for Merchant Seamen, which does not contain a prohibition of specific types of work for persons under the age of 18, but indicates under which conditions they may perform it. Noting that the “Regulations on hazardous work by children in South Africa” adopted on 15 January 2010 do not deal expressly with work on board seagoing ships, the Committee requested the Government to indicate the measures taken or envisaged to prohibit the work likely to jeopardize the health or safety of seafarers under the age of 18 and to adopt a list of the types of such work.
The Committee notes that, while the Declaration of Maritime Labour Compliance (DMLC), Part I, submitted by the Government states that any work that is likely to jeopardize the health and/or safety of young persons is prohibited and measures must be put in place to protect young persons from this type of work and refers to articles 110 and 111 of the Merchant Shipping Act, such articles do not contain such a prohibition. The Committee has not found any provision in the relevant legislation containing a prohibition of employment of seafarers under 18 years of age where the work is likely to jeopardize their health and safety. The Committee also notes that, according to Sections 94 and 95 of the Merchant Shipping Bill, 2020, the owner or master of a South African ship must not permit a young person to perform any work (a) that is inappropriate for a person of that age; (b) that places the young person’s well-being, education, physical or mental health, or spiritual, moral or social development at risk; in the case of ships engaged in coastwise traffic, it is prohibited to employ children under the age of 18 years in any capacity on board the ship. However, the proposed Bill does not contain the list of hazardous activities on board seagoing ships, which is required under of Standard A1.1, paragraph 4 of the Convention, and that must be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned, taking into consideration relevant international standards. The Committee therefore requests the Government to adopt the necessary measures to prohibit work that is likely to jeopardize the health and safety of seafarers under 18 years of age and to indicate whether it has adopted a list of types of hazardous work prohibited for young persons, taking into account the specific conditions of work and risks on board ships, after consultations with the shipowners’ and seafarers’ organizations concerned, as required by the Convention.
Regulation 1.4, paragraph 3 and Standard A1.4, paragraphs 9 and 10. Recruitment and placement. Services based in countries in which the Convention does not apply. The Committee notes with interest the adoption of the Merchant Shipping (Seafarer Recruitment and Placement) Regulations, 2017, which give effect to most of the provisions of Regulation 1.4 and the Code. The Committee further notes that the DMLC, Part I, submitted by the Government, indicates that shipowners using services based in States not party to the MLC, 2006 must ensure, as far as practicable, that these services meet the requirements of the Convention. The Committee notes this information, which addresses its previous request.
Regulation 2.1 and the Code. Seafarers’ employment agreements. Masters. The Committee previously noted that the provisions of the MSA which implement Regulation 2.1 do not cover masters and requested the Government to indicate how effect is given to this Regulation in the case of masters. The Committee notes that the Government does not provide information in this regard. The Committee asks the Government to indicate how it ensures that it complies with this provision of the convention with respect to masters.
Regulation 2.1 and Standard A2.1, paragraph 1(a). Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative. The Committee noted that section 102(1) and (2) of the MSA provides that the master of every South African ship shall enter into an agreement on behalf of the employer with every seafarer whom the master engages to serve in that ship; and that the agreement shall be signed by the master before any seafarer signs it. The “employer” is defined in this Act as any person, including the owner or master of a vessel, who employs any person or provides work for him/her on a vessel and who remunerates that person or expressly or tacitly undertakes to remunerate him/her, except as provided otherwise by regulation. The Committee recalled that any signatory of the seafarers’ employment agreement (SEA) other than a shipowner should produce a signed “power of attorney” or other document showing that he/she is authorized to represent the shipowner and requested the Government to indicate how it is ensured that the SEA is signed by the shipowner or shipowner's representative as required by Standard A2.1, paragraph 1(a). The Committee notes that the Government does not provide any information in its report and that the Merchant Shipping Bill, 2020, does not address this issue. The Committee therefore asks the Government to indicate how it complies with this provision of the Convention.
Regulation 2.1 and Standard A2.1, paragraph 1(c). Seafarers’ employment agreements. Signed Original. The Committee noted that section 103(c) of the MSA provides that when the crew is first engaged the agreement shall be signed in duplicate, and one agreement shall be delivered to the proper officer and the other shall be retained by the master, and requested the Government to indicate how effect is given to Standard A2.1, paragraph 1(c). The Committee notes that the Government does not reply to this request. The Committee therefore asks the Government to indicate the measures taken to ensure that the shipowner and seafarer concerned shall each have a signed original of the SEA.
Regulation 2.1 and Standard A2.1, paragraph 2. Seafarers’ employment agreement. Documents available in English. The Committee previously noted the absence of information on the application of this provision, and requested the Government to indicate how effect is given to this requirement of the Convention. The Committee notes that the Government submitted a standard form, in English, of a copy of an agreement with foreign going ships for framing and displaying. The Committee also notes that according to MSA Section 102(3)(l), crew agreements shall contain, inter alia, reference to any collective bargaining agreement and that the MSA Section 109 foresees that the master of a South African ship shall at the beginning of every voyage or engagement cause a legible copy of the agreement with the crew (omitting the signatures) to be framed and displayed in some conspicuous place on board the ship which is accessible to the crew, and shall cause it to be kept so framed and displayed during its currency. The Committee notes this information, which addresses its previous request.
Regulation 2.1 and Standard A2.1, paragraph 3. Seafarers’ record of employment. The Committee previously noted that section 113(2) and (4) of the MSA provides that, upon the discharge of a seafarer, the master shall issue to the seafarer a certificate of his/her discharge and that when the master declines to express an opinion on the conduct, character and ability of the seafarer, the discharge shall be made before a proper officer, to whom he/she shall furnish a report stating that he/she so declines, and, if the seafarer so desires, the proper officer shall give to him/her or endorse on his/her certificate of discharge a copy of such report. Noting the form for seafarers’ Record Book and Certificates of Discharge contained in the Merchant Shipping (Seamen’s Documents) Regulations, 2000, includes a “report of character”, the Committee recalled that Standard A2.1, paragraph 3, provides that the document to be given to seafarers containing a record of their employment on board the ship shall not contain any statement as to the quality of the seafarers’ work. Noting that the Government provides no information on how it ensures conformity with this provision of the Convention, the Committee once again requests the Government to indicate how conformity with Standard A2.1, paragraph 3, is ensured.
Regulation 2.1 and Standard A2.1, paragraph 4. Seafarers’ employment agreement. Content. The Committee previously noted that section 102(3) of the MSA, which provides for the particulars to be contained in the agreement with the crew, does not include the particulars specified in Standard A2.1, paragraph 4(a–c) and (g). The Committee notes that the Government does not indicate how it ensures that the content of a seafarer’s employment agreement fully complies with the Convention. The Committee therefore asks the Government to indicate how it is ensured that the particulars to be contained in the SEA include the seafarer’s full name, date of birth or age, and birthplace; the shipowner’s name and address; the place where and date when the seafarers’ employment agreement is entered into; and the conditions of termination of the agreement, in conformity with Standard A2.1, paragraph 4(g). The Committee further requests the Government to provide an updated model of a seafarers’ employment agreement that is in conformity with Standard A2.1, paragraph 4, of the Convention.
Regulation 2.1 and Standard A2.1, paragraph 6. Seafarers’ employment agreement. Termination. Shorter notice period for urgent reasons. In its previous comment, the Committee noted that no circumstances justifying termination of the employment agreement at shorter notice or without notice have been provided for in national laws or regulations or collective agreements and requested the Government to indicate how the need of the seafarer to terminate the contract without penalty on shorter notice or without notice for compassionate or other urgent reasons has been taken into account, in accordance with Standard A2.1, paragraph 6. The Committee notes that the example of DMLC, part II, submitted by the Government foresees that the company shall allow a seafarer to terminate the SEA at short notice or without notice and without any penalty in case of a reasonable urgent or compassionate reason. The committee notes however that, under the terms of national law, there are no provisions which allow the termination of an employment agreement with shorter notice or without notice. Recalling that Standard A2.1, paragraph 6, requires the circumstances which justify the termination of an employment agreement at shorter or without notice to be recognized under national law or regulations or collective bargaining agreements, the Committee requests the Government to specify the national provisions which give effect to this prescription of the Convention. The Committee further requests the Government to indicate how it is ensured that such circumstances take into account the need of the seafarer to terminate, without penalty, the employment agreement for compassionate or other urgent reasons.
Regulation 2.2 and the Code. Wages. The Committee previously noted that the provisions of the MSA which implement Regulation 2.2 do not cover cadets and that section 122 of the MSA, which addresses the time of payment of wages, does not provide that payments due to seafarers are made at no greater than monthly intervals and in accordance with any applicable collective agreement, as required by Standard A2.2, paragraph 1. The Committee requested the Government to indicate how effect is given to this Regulation, including with respect to cadets. The Committee notes that point 14(d) of the DMLC, Part I, provided by the Government, referring to Sections 119-144 of the MSA, foresees that seafarers must be paid at no greater than monthly intervals and in full for their work in accordance with their employment agreements. The Committee also notes that Section 100(2) of the Merchant Shipping Bill, 2020, foresees that the frequency of providing a payment advice must be at least every 30 days or as may be agreed in the crew agreement, which must require a payment advice at least every 30 days. Noting that the draft Merchant Shipping Bill, 2020, contains provisions implementing the Convention, the Committee requests the Government to adopt the necessary measures in the near future to ensure the conformity of its legislation with Regulation 2.2. and the Code, including with respect to cadets. The Committee further requests the Government to explain how the guidance provided in Guideline B2.2 is given due consideration in the national measures adopted.
Regulation 2.3 and Standard A2.3, paragraphs 2 and 5. Hours of rest. The Committee previously requested the Government to indicate how effect is given to Standard A2.3, paragraphs 2 and 5, in the case of seafarers who are not covered by Regulation 93(2) of the Merchant Shipping (Safe Manning, Certification and Training) Regulations, 2013, which provides that all persons who are assigned duty as officer in charge of a watch or as a rating forming part of a watch and those whose duties involve designated safety, prevention of pollution and security duties shall be provided with a rest period of not less than: (a) a minimum of ten hours of rest in any 24-hour period; and (b) 77 hours in any seven-day period. The Committee notes that Marine Notice No. 13 of 2018 relating to Hours of Work and the Maritime Labour Convention, provides that South Africa implements the requirement of Standard A2.3 Paragraph 5(b) under the above mentioned Regulations Section 93 – “Hours of work: general duty of owners, masters and others’’ and that the requirements of this section are the same for all seafarers operating on all commercial vessel types, and for all areas of operation. The Committee notes this information, which addresses its previous request.
Regulation 2.3 and Standard A2.3, paragraph 13. Hours of work and hours of rest. Exceptions. The Committee previously requested the Government to review paragraphs 9–11 of Regulation 93 of the Merchant Shipping (Safe Manning, Certification and Training) Regulations 2013, which provide for possible exceptions to the hours of rest. The Committee notes that the revised paragraphs 9–11 of Regulation 93 of the Draft Merchant Shipping (Training Certification and Manning) Regulations, 2020, published by the department of transport Notice No. 232 of 2020, in the Government Gazette of 3 April 2020, do not ensure that any exception regarding hours of work is only authorized by collective agreement, in accordance with the requirements of Standard A2.3, paragraph 13. Recalling that any exception to the hours of rest may only be authorized by collective agreement, the Committee once again requests the Government to review paragraphs 9–11 of Regulation 93 to give full effect to Standard A2.3, paragraph 13, and to provide information on measures taken in this regard.
Regulation 2.4 and the Code. Entitlement to leave for masters and cadets. The Committee previously noted that the provisions of the Merchant Shipping (Safe Manning, Certification and Training) Regulations, 2013, which implement Regulation 2.4, do not cover masters and cadets. Noting that the Government does not provide information on this point, the Committee once again refers to its comments under Article II of the Convention, and asks the Government to indicate how effect is given to this Regulation in the case of masters and cadets.
Regulation 2.4, paragraph 2. Entitlement to leave. Shore leave. The Committee previously noted the Government’s indication that shipowners are required to give seafarers appropriate shore leave. In the absence of information on the corresponding measures adopted to ensure compliance with this obligation, the Committee once again asks the Government to indicate how it is ensured that seafarers are granted shore leave to benefit their health and well-being and consistent with the operational requirements of their positions, in accordance with Regulation 2.4, paragraph 2.
Regulation 2.4 and Standard A2.4, paragraph 2. Entitlement to leave. Minimum paid annual leave. Method of calculation. The Committee notes that the MSA section 111A (1)(a) and (2) foresees that every seafarer employed or engaged on a South African ship is entitled to leave accrued at the rate of at least 2.5 days per month of employment, and that “month” means a period of 30 days including Saturdays, Sundays and public holidays, as defined in section 1 of the Public Holidays Act, 1994. The Committee requests the Government to clarify if justified absences from work are not considered as annual leave (Standard A2.4, paragraph 2).
Standard A2.4, paragraph 3. Prohibition of agreements to forgo annual leave. In the absence of information on the measures adopted to ensure that any agreement to forgo the minimum annual leave with pay is prohibited, except in cases provided for by the competent authority, the Committee once again requests the Government to indicate how effect is given to this provision of the Convention.
Regulation 2.5 and Standard A2.5.1, paragraphs 1 to 3. Repatriation. The Committee previously noted that, while sections 114, 116, 140, 154 and 155 of the MSA relate to repatriation, these provisions do not cover all the circumstances in which seafarers are entitled to repatriation under the Convention. The Committee also noted that the MSA does not provide for a maximum period of service on board following which a seafarer is entitled to repatriation, which must be less than 12 months. Moreover, it noted that section 114(3) provides for an exception to the entitlement to repatriation in the case of a seafarer who is not a South African citizen or a citizen of a treaty country and who was engaged at a port out of the Republic and discharged at a port outside the Republic. In addition, noting that, pursuant to section 114(2) of the MSA, the shipowner may invoke a “reasonable cause” to be discharged from the obligations related to repatriation, the Committee recalled that while the shipowner may recover the cost of the repatriation under the limited circumstances provided for under Standard A2.5, paragraph 3 (i.e. where the seafarer has been found to be in serious default of the seafarer’s employment obligations, in accordance with national laws or regulations or other measures of applicable collective bargaining agreements), this situation does not release the shipowner from the obligation to pay for the repatriation in the first instance. With regard to the definition of “proper return port”, the Committee also requested the Government to indicate how it has given due consideration to Guideline B2.5 on repatriation. The Committee therefore requested the Government to indicate how it ensures that all seafarers on board a South African ship are entitled to repatriation in all the circumstances provided for in Standard A2.5.1, paragraphs 1, 2 and 3. It further requested the Government to provide the provisions in national laws or regulations or other measures or applicable collective agreements setting out the procedure to be followed and the standard of proof to be applied before a seafarer can be found to be in “serious default of the seafarer’s employment obligations”. With regard to the definition of “proper return port”, the Committee requested the Government to indicate how it has given due consideration to Guideline B2.5 on repatriation. While noting that the Merchant Shipping Bill, 2020, contains provisions which, if adopted, would implement some of the requirements of the Convention, the Committee notes that such provisions do not ensure full conformity with Regulation 2.5 and the related provisions of the Code. Hoping that the relevant amendments will be introduced in the near future to ensure full compliance with Standard A2.5.1, paragraphs 1 to 3, the Committee reiterates its previous request.
Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. The Committee previously requested the Government to indicate how it is ensured that all ships that fly its flag provide financial security to ensure that seafarers are duly repatriated in accordance with the Code, as provided for in Regulation 2.5, paragraph 2. The Committee notes that Regulation 7(k)(iv) of the Merchant Shipping (Seafarer Recruitment and Placement) Regulations (SRPR), 2017, provides that a seafarer recruitment and placement service must ensure that the shipowner has in place financial protection to cover repatriation costs in the event that the seafarer is stranded in any port. The Committee notes, however, that such provision only addresses the obligations placed on seafarer recruitment and placement services in this respect. The Committee also notes that the DMLC, part I, submitted by the Government, requires the provision of an expeditious and effective financial security system to assist seafarers in the event of abandonment, defined in the same terms as prescribed by Standard A2.5.2, paragraph 2 of the Convention. Ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider, a copy of which must be placed in a conspicuous place on board the vessel, and that completed evidence of financial security forms must be submitted for approval of the Maritime Authority. While taking note of the information contained in the DMLC, Part I, the Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (e) does national legislation require that the financial security system is sufficient to cover outstanding wages and other entitlements, all expenses incurred by the seafarer (including the cost of repatriation), and the essential needs of the seafarers, as defined in Standard A2.5.2, paragraph 9?; and (f) does national legislation provide for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease? The Committee requests the Government to reply to the above-mentioned questions, indicating the national laws and regulations adopted to give effect to the requirements of Regulation 2.5 and Standard A2.5.2.
Regulation 2.6 and Standard A2.6, paragraph 1. Compensation for the ship’s loss or foundering. Unemployment Indemnity. In the absence of information in the Government report, the Committee reiterates its previous request to the Government to indicate how effect is given to this provision of the Convention.
Regulation 2.7 and the Code. Manning Levels. The Committee previously noted the power given to the Authority in section 85 of the MSA to grant exceptions to the safe manning provisions, and requested the Government to provide information on its application in practice. Noting the absence of reply from the Government, the Committee once again requests the Government to provide information on the application of this provision in practice. The Committee also requests the Government to provide information on how complaints or disputes about determinations on the safe manning levels on a ship are investigated and settled (see guidance in Guideline B2.7).
Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee previously noted that the DMLC, Part I, indicated that ships constructed after 20 August 2013 shall comply with the accommodation and recreational facility requirements as specified in the Convention, which was yet to be domesticated in South Africa. Taking note of the 2007 draft Amendments to the Crew Accommodation Regulations, 1961, which, if adopted, would generally bring the legislation in conformity with Standard A3.1, the Committee requested the Government to indicate how it is ensuring, while awaiting that the relevant legislation is adopted, that ships constructed after 20 August 2013 comply with the accommodation and recreational facility requirements of the Convention, in accordance with the indication contained in the DMLC, Part I. The Government indicates in its report that the Draft Merchant Shipping (Crew Accommodation) Amendment Regulations, 1961, are still in progress. While noting this information, the Committee notes that the new DMLC, Part I, provided by the Government, indicates that ships constructed before 21 June 2014 shall comply with the Crew Accommodation Regulations, 1961 and that ships constructed after that date shall comply with the accommodation and recreational facilities requirements (regulation 3.1) as specified in the Convention, which is a schedule to the MSA. The Committee also notes that according to section 356bis of the MSA, the Convention has the force of Law in South Africa. The Committee therefore requests the Government to provide a copy of the Draft Merchant Shipping (Crew Accommodation) Amendment Regulations, 1961, once adopted, which would apply to ships constructed before 21 June 2014. With respect to ships constructed after that date, the Committee requests the Government to provide information on the implementation of Standard A3.1, paragraph 19 (variations of accommodation standards for differing religious and social practices), as well as to indicate whether any exemptions for ships of less than 200 gross tonnage have been granted pursuant to Standard A3.1, paragraphs 20 and 21, of the Convention.
Regulation 3.2 and the Code. Food and Catering. The Committee previously noted that section 156(1) of the MSA provides that the master of a South African ship of more than 100 gross tons shall furnish provisions to every seafarer (who does not furnish his/her own provisions) in accordance with the prescribed scale. Noting that the 2007 draft Amendments to the Merchant Shipping (Provisions) Regulations, 1961, as amended, include ships of more than 100 gross tons and do not provide for the possibility that seafarers furnish their own provisions, the Committee requested the Government to indicate the progress made in the adoption of these Amendments. The Committee notes that the Government provides no information on the state of adoption of the 2007 Draft Merchant Shipping (Provisions) Amendment Regulations. The Committee notes, however, that section 119 of the Merchant Shipping Bill, 2020, provides that the owner of a prescribed ship must provide or ensure the provision of free provisions to the seafarers employed on that ship for the period of employment, as required by Regulation 3.2, paragraph 2. The Committee therefore requests the Government to provide information on the adoption of new or amended legislation in compliance with the Convention.
Regulation 3.2 and Standard A3.2, paragraph 2. Food and Catering. Religious and cultural practices. Organization and equipment. Noting that the food supplies provided for in the Annex to the Merchant Shipping (Provisions) Regulations, 1961, as amended, did not take into account the differing cultural and religious backgrounds of seafarers, the Committee previously requested the Government to indicate how effect is given to this requirement of the Convention when determining the suitability of food supplies. It also requested the Government to indicate how effect is given to standard A3.2, paragraph 2(b) regarding the organization and equipment of the catering department. The Committee notes that sections 120 and 121 of the Merchant Shipping Bill, 2020, provide that the master must not take the ship to sea or cause or permit that ship to be taken to sea, unless the ship: i) is carrying (a) drinking water of suitable quality and quantity; (b) food of suitable quality, quantity, nutritive value and variety; and (c) provisions having regard to the nature and duration of the voyage and the number, and cultural and religious backgrounds, of the seafarers employed on the ship; and ii) has catering facilities that are arranged and equipped so as to enable proper meals to be served to the seafarers employed on the ship. Noting that these provisions would bring the legislation in conformity with Standard A3.2, paragraph 2, the Committee requests the Government to provide information on progress made in the adoption of the Merchant Shipping Bill, 2020.
Regulation 4.1 and Standard A4.1, paragraph 1 (c). Medical care on board and ashore. Right to visit a doctor or dentist in ports of call. The Committee notes that, while the Government indicates that the shipowner shall be liable for medical costs on board and ashore, no information is provided on the measures adopted to ensure that seafarers are permitted by the shipowner/master to visit a qualified medical doctor or dentist without delay in ports of call, where practicable. The Committee therefore requests the Government to indicate how it ensures full compliance with this provision of the Convention.
Regulation 4.1 and Standard A4.1, paragraph 2. Medical care on board and ashore. Standard medical report form. Noting that the Government does not provide any information in reply to its previous request, the Committee asks the Government to provide an example of the standard medical report form for use by the ships’ masters and relevant onshore and onboard medical personnel and to indicate how it is ensured that the form, when completed, and its contents shall be kept confidential and shall only be used to facilitate the treatment of seafarers.
Regulation 4.1 and Standard A4.1, paragraph 4(b). Medical care on board and ashore. Minimum Requirements. Medical doctor on board. The Committee previously noted that while Regulation 5 of the Ship’s Medicines and Medical Appliances Regulations, 1991, provides that a medical practitioner shall be employed on every Class 1 (that is foreign-going) ship which carries 100 or more persons, Regulation 13 allows the authority to exempt any ship from any of the requirements of these Regulations. Recalling that the Convention does not allow for any exception to the requirement of carrying a qualified medical doctor on ships carrying 100 or more persons and ordinarily engaged on international voyages of more than three days’ duration, the Committee requested the Government to provide information on the exemptions granted in application of this provision, if any, in particular in relation to Regulation 5. Noting the absence of reply from the Government, the Committee reiterates its previous request.
Regulation 4.1 and Standard A4.1, paragraph 4(d). Medical care on board and ashore. Minimum Requirements. Medical advice by radio or satellite. Noting that the Government does not provide information in reply to the its previous request to indicate how effect is given to this Standard, the Committee notes that, according to the annual report 2018-19, the South African Maritime Safety Authority (SAMSA) assisted in 86 medical advice incidents by connecting vessels to local telemedical services and coordinated the evacuation of 22 crew/passengers from vessels offshore to local hospitals. The Committee also notes that, according to MN No. 14 of 2019, a Maritime Radio Coastal Infrastructure is available. Furthermore, the Committee notes that the South African Search And Rescue Organisation (SASAR), which is available 24h, provides medical advice, an exchange of medical information and recommended treatment for sick or injured persons where treatment cannot be administered directly by prescribing medical personnel, as well as medical evacuation of a seriously ill or injured person on board a vessel at sea. Noting the absence of information on whether medical assistance by radio or satellite is provided free of charge to all ships irrespective of the flag that they fly, the Committee requests the Government to indicate the measures giving full effect to Standard A4.1, paragraph 4(d).
Regulation 4.2 and the Code. Shipowners’ Liability. The Committee previously requested the Government to provide information on the draft Bill published for comments in Notice 356 of 2009 (Government Gazette of 15 April 2009), which would insert a new Chapter IV-A in the MSA providing for financial security for loss of life and personal injury, and on the Merchant Shipping (Seafarer Accident Insurance) Regulations, 2015, advertised for comments in Notice 942 of 2015 (Government Gazette of 25 September 2015), which, when adopted, would give a legal basis to the shipowners’ obligation to provide financial security to assure compensation in the event of death or long-term disability of seafarers due to an occupational injury, illness or hazard. . The Committee notes that the Government does not provide any new information on the adoption of such drafts, the Committee notes that the Merchant Shipping Bill, 2020, provides that the owner of a ship must maintain insurance or other financial security to provide compensation for every seafarer belonging to the ship who suffers loss of life or personal injury as a result of an accident and that such insurance or financial security must be evidenced by a certificate, which must be carried on board the ship at all times. The Committee further notes that section 16 of the DMLC, Part I, submitted by the Government, refers succinctly to the financial security relating to shipowners liability. While noting this information, the Committee recalls that, in relation to the 2014 amendments to the Code of the Convention, pursuant to Standards A4.2. and A4.2.2, national laws and regulations shall provide that the financial security system to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard meet certain minimum requirements. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned?; (b) how do national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay, (ii) no pressure to accept payment less than the contractual amount, (iii) interim payments (while situation is being assessed) to avoid undue hardship, (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident, and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary)?; (c) does national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation provide: (i) for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease, (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated, and (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated?; and (e) how does national legislation ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures?  The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of an example of the kind of certificate or other documentary evidence of financial security that must be provided by shipowners containing the information required in Appendix A4-I of the Convention (Standard A4.2.1, paragraph 14).
Regulation 4.2 and Standard A4.2.1, paragraph 2. Shipowners’ liability. Expenses of medical care and board and lodging away from home. Limits. The Committee previously noted that section 140(1)(b) of the MSA limits to a maximum of 60 days the period for which a seafarer shall be entitled to receive wages in case of incapacity for work resulting from illness or injury; and that section 169(1) limits the shipowner liability to cover medical and other expenses incurred due to illness or injury until the seafarer concerned is cured or dies or is returned to and arrives at a proper return port. Noting that the liability of the shipowner to defray the expense of medical care and board and lodging and to pay wages in whole or in part in respect of a seafarer no longer on board may be limited to a period which shall not be less than 16 weeks from the day of the injury or the commencement of the sickness, the Committee requested the Government to indicate how effect is given to Standard A4.2, paragraphs 2 and 4. Noting that the Government does not provide relevant information in reply to its request and that the Merchant Shipping Bill, 2020, does not address this issue, requests the Government to indicate the measures adopted to ensure full conformity with this provision of the Convention.
Regulation 4.2 and Standard A4.2.1, paragraph 5. Shipowners’ liability. Possible exclusion. The Committee previously noted that section 140(1)(b) of the MSA provides for an exception to seafarers’ entitlement to wages in cases of sickness or injury when the seafarer unreasonably refused medical treatment for such sickness or injury. The Committee recalled that such exclusion is not permitted by Standard A4.2, paragraph 5, and requested the Government to explain how it gives full effect to this provision of the Convention. Noting that the Government does not provide relevant information in reply to its request and that the Merchant Shipping Bill, 2020, does not address this issue, the Committee requests the Government to indicate the measures adopted to ensure full conformity with this provision of the Convention.
Regulation 4.5 and Standard A4.5, paragraphs 1-3. Social security. Branches. Protection for seafarers ordinarily resident in its territory. Recalling that, at the time of ratification, the Government has specified sickness benefit; unemployment benefit, employment injury benefit and maternity benefit as the branches of social security for which protection is provided, and noting the Government’s indication that no maternity benefit is given to seafarers ordinarily resident in the country, unless provided for in the contract of employment, the Committee previously requested the Government to indicate how it envisaged to give effect to its obligations in this respect. The Committee notes the Government’s reply indicating that the maternity benefit may be claimed from the Unemployment Insurance Fund (UIF) administered by the Department of Labour. While noting this information, the Committee requests the Government to provide statistical information on the number of seafarers who are actually affiliated to the Unemployment Insurance Fund. The Committee further requests the Government to provide detailed information on all the measures that provide seafarers ordinarily resident in South Africa with protection for the branches which it has declared applicable, specifying the applicable national provisions and including details of the benefits provided under each of the branches mentioned above.
Standard A4.5, paragraph 6. Comparable social security benefits for seafarers in the absence of adequate coverage. The Committee previously noted that the Government has not adopted any measures for providing benefits to non-resident seafarers working on ships flying its flag who do not have adequate security coverage. Recalling that, although the primary obligation rests with the Member in which the seafarer is ordinarily resident, Standard A4.5, paragraph 6 requires Members to give consideration to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers in the absence of adequate coverage in the applicable branches of social security, the Committee requested the Government to provide information on any measures adopted to give effect to this provision of the Convention. Noting the absence of reply from the Government, the Committee reiterates its previous request.
Regulation 4.5 and Standard A4.5, paragraph 9. Social security. Fair and effective procedures for the settlement of disputes. The Committee requests the Government to provide information on the procedures of the settlement of disputes relating to social security for seafarers, as per Standard A4.5, paragraph 9 of the Convention.
Regulation 5.1.1 and the Code. Flag State responsibilities. General principles.  The Government indicates in its report that it conducts flag state inspections and an audit of recognised organisations through SAMSA. The Committee notes, however, that the Government does not provide any information regarding the objectives and standards established for the inspection and certification system, as well as on the specific measures taken to ensure the effectiveness of the system in place for the inspection and certification of maritime labour conditions on ships. Noting that the Government did not provide, in its first and second reports, information on the objectives and standards defined for the inspection and certification system, and on the methods in place for its assessment (Regulation 5.1.1, paragraphs 1 and 5) the Committee requests the Government to provide detailed information in this respect.
Regulation 5.1.2 and the Code. Authorization of recognized organizations. The Committee notes the Government’s indication that the organizations recognized for the purposes of carrying out inspection and certification functions follow the guidelines established by the International Maritime Organization in its Resolution No. A.739(18). The Committee emphasizes the need to take into account specific standards in this field, including Standard A5.1.2 and Guideline B5.1.2 of the Convention. While taking note of the list of recognized organizations contained in Marine Notice No. 40 of 2016, the Committee notes that such list does not include an indication of the functions that they are authorized to carry out, and the Government has not provided information concerning the relevant legislation or other measures governing the authorization of such recognized organizations. The Committee therefore requests the Government, on the one hand, to provide information on the laws and regulations or other measures governing the authorization of recognized organizations and, on the other, to provide the Office with the information required by paragraph 4 of Standard A5.1.2.
Regulation 5.1.3. Maritime labour certificate and declaration of maritime labour compliance. Implementing legislation. The Committee notes with interest that the Maritime Labour Certificate and Declaration of Compliance Regulations, 2017 were adopted and published in the Government Gazette of 6 June 2017 and give effect to most of South Africa’s obligations under Regulation 5.1.3. The Committee notes this information, which addresses its previous request.
Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Flag State responsibilities. Declaration of Maritime Labour Compliance. Content. The Committee previously requested the Government to review the DMLC, Part I, so as to ensure that it provides a reference to the national legal provisions embodying the relevant provisions of the Convention as well as concise information on the main content of the national requirements. It also requested the Government to ensure that the DMLC, Part II, approved by the competent authority provides specific information on the ways in which the national requirements are to be implemented between inspections. The Committee notes that the Government has revised the DMLC Part I and that the copy submitted by the Government contains information on the 16 matters to be inspected in line with the relevant provisions of the MLC, 2006, as well as reference to the national legal provisions and concise information on their main content. The Committee also takes note of the example of an approved DMLC, Part II, that has been drawn up by a shipowner to set out the measures adopted to ensure ongoing compliance with the national requirements and measures proposed to ensure that there is continuous improvement, as provided under Standard A5.1.3, paragraph 10(b). The Committee notes this information, which addresses its previous request.
Regulation 5.1.3 and Standard A5.1.3, paragraphs 14 and 15. Flag State responsibilities. End of validity of the Maritime Labour Certificate and the Declaration of Maritime Labour Compliance. The Committee notes that, while Regulation 11 of the Maritime Labour Certificate and Declaration of Compliance Regulations, 2017, enumerates the cases in which a maritime labour certificate and a Declaration of Maritime Compliance may be suspended or cancelled, these do not include the circumstances in which a Maritime Labour Certificate shall cease to be valid (Standard A5.1.3, paragraphs 14 and 15; Guideline B5.1.3, paragraph 6) and must be withdrawn (Standard A5.1.3, paragraphs 16 and 17) according to the Convention. The Committee therefore requests the Government to indicate the measures adopted to ensure full conformity with these requirements of the Convention.
Regulation 5.1.4 and Standard A5.1.4, paragraphs 2 and 3. Flag State responsibilities. Inspection and enforcement. Qualified inspectors.  The Committee notes the Government’s indication that appointed Flag State Inspectors are STCW Deck and Engineer Officers who have undertaken in-house and/or ILO training. While noting this information, the Committee requests the Government to indicate the national measures adopted to ensure that inspectors have the competence, terms of reference and powers necessary so as to enable them to carry out verifications that the measures relating to working and living conditions are being followed, and that the requirements of this Convention are met (Standard A5.1.4, paragraph 3).
Regulation 5.1.4 and Standard A5.1.4, paragraph 6. Flag State responsibilities. Inspection and enforcement. Independence of inspectors. The Committee notes that section 4 of the MSA provides that SAMSA may appoint any qualified person whom it deems fit to act as a surveyor to inspect any South African ship wherever she may be or any ship not registered in the Republic while she is within the Republic or the territorial waters of the Republic for the purpose of ascertaining whether she complies with the provisions of this Act. The Committee also notes the Government’s statement that surveyors are not Government employees or civil servants. Recalling that adequate rules must be provided and enforced to guarantee that inspectors have a status and conditions of service ensuring that they are independent of changes of Government and of improper external influences, as required by Standard A5.1.4, paragraphs 6, 11(a) and 17 of the Convention, the Committee requests the Government to indicate how it gives effect to these provisions of the Convention.
Regulation 5.1.5 and Standard A5.1.5. Flag State responsibilities. On-board complaint procedures. The Committee previously requested the Government to indicate the measures taken to prohibit and penalize any kind of victimization of a seafarer for filing a complaint. The Committee notes that section 158A of the MSA and Marine Notice No. 48 of 9 October 2020, which provides the standard form which the seafarer may use to file complaints, regulate onboard complaints procedures and include safeguards against victimization of the seafarer, notably the right for the seafarer i) to obtain guidance or to submit the complaint directly to the Competent Authority; and ii) to be accompanied and represented by a labour organization or by another seafarer of their choice on board the ship concerned at all times. The Committee also notes that any claims of victimisation should be investigated by the master or shipowner and where instances of victimisation are found to occur, these must be dealt with under the Company's disciplinary procedures in the shortest possible time, and the outcome reported to the Competent Authority. The Committee notes this information, which addresses its previous request.
Regulation 5.2.1. Port State responsibilities. The Committee previously noted that the national port State control system was under development and requested the Government to indicate the measures taken to establish an effective port State inspection and monitoring system, for the purpose of reviewing compliance with the requirements of the Convention, including the method used for assessing its effectiveness, as provided for under Regulation 5.2.1. The Government indicates in its report that the national port State control system is still under development and that inspectors use the ILO guidelines on port State control, having carried out 63 detailed inspections to Standard A5.2.1. Regarding compensation to be paid for any loss or damage for a ship being unduly detained or delayed, the Government states that any loss or damage from the wrongful exercise of the inspectors' powers would require the shipowner to approach SAMSA, and in the event that the shipowner was not satisfied with the decision of the Authority, relief would require an approach through the judicial systems of the Republic. The Committee also notes that South Africa is a Member to the Indian Ocean Memorandum of Understanding on Port State Control (Indian Ocean MoU) as well as to the Memorandum of Understanding on Port State Control for the West and Central Africa Region (Abuja MoU). The Abuja MoU includes among the relevant instruments underlying its port State control mechanism, the MLC, 2006, the 1978 International Convention on Seafarer Training, Patenting and Watch Standards, as amended (STCW) and the Convention (No. 147) on Merchant Marine (minimum standards), 1976. While recognising the value of the coordinated implementation of inspections under port State control at the level of these regional organizations, the Committee recalls that national authorities have an obligation to give full effect to the provisions of the MLC, 2006, in their own legislation. Hoping that, in its next report, the Government will be able to submit information on the establishment of an effective port State control inspection and monitoring system to verify conformity with the requirements of the Convention, the Committee requests the Government to provide detailed information on the procedures established at the national level to implement its port State responsibilities under the MLC, 2006.
Regulation 5.2.2 and the Code. Port State responsibilities. Onshore seafarer complaint-handling procedures. The Committee takes note of Marine Notice No. 15 of 2019, which provides the national contact point for all complaints which are to be lodged with the National Authority (SAMSA), concerning the breach or alleged breach of seafarers’ rights as stipulated under the Convention, including for seafarers on board foreign flagged vessels calling at a South African port. The Committee also notes the Government’s statement that SAMSA’s whistleblower policy ensures confidentiality. The Committee notes however that the Government does not provide concrete information on the functioning of the onshore complaint-handling procedure in its administration, including on the possibility to conduct a more detailed inspection in accordance with Standard A5.2.1. The Committee therefore requests the Government to inform how it implements in practice the provisions of Regulation 5.2.2 and Standard A5.2.2. The Committee also requests the Government to indicate the number of complaints filed and resolved with the maritime authority, as well as the text of any document presenting the procedures for processing complaints onshore.

C188 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the Government’s first report on the application of the Work in Fishing Convention, 2007 (No. 188). Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. The Committee notes the efforts undertaken by the Government and the social partners to implement the Convention. If considered necessary, the Committee may come back to other matters at a later stage.
Impact of the COVID-19 pandemic. The Committee notes with deep concern the impact of the COVID-19 pandemic on the protection of fishers’ rights as laid out in the Convention. In this regard, the Committee refers to the resolution adopted by the Governing Body in its 340th Session (GB.340/Resolution) concerning maritime labour issues and COVID-19 disease, which calls on Member States to take measures to address the adverse impacts of the pandemic on fishers’ rights.
General Issues. Implementation measures. The Committee notes the Government’s indication that the South African Merchant Shipping Act (MSA) was amended in October 2015 to give effect to the Convention. The Committee further notes that a draft Merchant Shipping Bill 2020 has been published for comments before its adoption in order to replace the existing MSA. It notes the Government’s indication that draft regulations are submitted to the Department of Transport for promulgation. The Committee requests the Government to provide a copy of any measures adopted to give full effect to the Convention. The Committee notes that section 356bis of the MSA provides that, subject to the provisions of this Act, the Convention, has the force of law in the Republic. It also notes that the text of the Convention, including Annexes I to III, is reproduced in the eighth schedule of the Act. The Committee requests the Government to explain how it ensures the full application of the detailed requirements of the Convention in case of inconsistencies between the provisions the Convention, which have force of law, and the national laws and regulations in force. The Committee notes that the Government’s report does not provide information on the consultations carried out by the competent authority with the representative organizations of employers and workers concerned, and in particular the representative organizations of fishing vessels owners and fishers, where they exist. The Committee requests the Government to provide detailed information on the consultations carried out with the representative organizations concerned, as required by the Convention.
Articles 2 and 3. Scope of application. Exclusions. The Committee notes the Government’s indication that section 2, paragraph 1, of the MSA, defines “seafarer” as “any person (except a master, pilot or cadet) employed or engaged in any capacity as a member of the crew of a ship”. It also notes that, while masters and cadets are not included in the definition of “seafarer” for the purposes of the MSA, a number of provisions of this Act apply to cadets or masters, or include a specific indication that the section concerned also applies to these categories of workers. For example, section 101 of the MSA, provides that requirements on medical examination of crews prior to engagement shall apply, with the changes required by the context, to the engagement of a master. The Committee recalls that Article 1(e) of the Convention provides that fisher means “every person employed or engaged in any capacity or carrying out an occupation on board any fishing vessel, including persons working on board who are paid on the basis of a share of the catch but excluding pilots, naval personnel, other persons in the permanent service of a government, shore-based persons carrying out work aboard a fishing vessel and fisheries observers”. The Committee requests the Government to provide detailed information on how it ensures that the measures adopted or envisaged in order to implement the Convention apply to all fishers within the meaning of the Convention, including masters and cadets. The Committee notes that section 3, paragraph 10, of the MSA provides that, unless otherwise indicated, only the provisions of sections 9 (5), 223, 259, 264, 313, 343ter, 355A, 356 and 356ter, read with section 2, shall apply to: a) every owner and master of any vessel, and every user, employer and employee; b) all crew on board a vessel who have entered into a contract of employment with the master or with the owner or operator of such vessel, or any person who in the case of a vessel of less than 100 gross register tons can be regarded as crew on board such vessel (…). The Committee notes that the Government’s report contains references to sections 90 to 189 of the MSA on engagement, discharge, repatriation, payment, discipline and general treatment of seafarers. The Committee further notes that section 3, paragraph 10, of the draft Merchant Shipping Bill 2020 reproduces the same provision of the MSA. The Committee requests the Government to clarify the scope of application of the MSA and to explain how it ensures that it applies to all fishers and all fishing vessels engaged in commercial fishing operations covered by the Convention. The Committee notes that several sections of the MSA, including section 3, provide that the competent authority may decide exemptions, modifications and restrictions concerning the application of this Act. The Committee requests the Government to provide detailed information on any exemptions, modifications and restrictions decided that could affect the full implementation of the Convention.
Article 4 of the Convention. Progressive implementation. The Committee notes the Government’s indication that progressive implementation was required for medical examinations of fishers working on under 25 gross tonnage vessels as no legislative requirement existed. It further notes the Government’s information that draft Merchant Shipping (Small Vessels Medical) Regulations have been submitted to the Department of Transport for promulgation. The Committee recalls that, where it is not immediately possible for a Member to implement all of the measures provided for in the Convention owing to special problems of a substantial nature in the light of insufficiently developed infrastructure or institutions, the Member may, in accordance with a plan drawn up in consultation, progressively implement all or some of the following provisions (Article 4). Noting that the Government has not provided a copy of the draft Merchant Shipping (Small Vessels Medical) Regulations, the Committee requests it to provide information on: 1) any measures adopted to give effect to Articles 10 and 11 of the Convention for fishers working on vessels under 25 gross tons; and 2) details about the plan for the progressive implementation and the consultations which have taken place in this connection.
Article 5 and Annex III. Basis of measurement used. The Committee notes the Government’s indication that length, as provided for in current legislation, has been used for the purpose of the application of the Convention. Length has also been used in draft legislation to give effect to the Cape Town Agreement, 2012. The practice is that both length and gross tonnage appear on the vessels safety documents. However, the Committee notes that the MSA and several regulations mentioned in the Government’s report use gross tonnage as basis of measurement. The Committee recalls that member States shall, for the purpose of the Convention, use length (L) as the basis for measurement. The competent authority, after consultation, may decide to use length overall (LOA) in place of length (L) as the basis for measurement, in accordance with the equivalence set out in Annex I. Gross tonnage may not be used as a basis for measurement except for the implementation of Annex III and under the conditions specified (Article 5). The Committee requests the Government to indicate the measures taken to ensure full conformity with Article 5 of the Convention.
Article 9, paragraphs 3 to 5, of the Convention. Minimum age. Hazardous work. The Committee notes that the Government has not provided information on the implementation of Article 9, paragraphs 3 to 5 of the Convention. The Committee notes that Regulations on hazardous work by children in South Africa, adopted on 15 January 2010, include the prohibition for persons under 18 years of: (i) work involving exposure to a hazardous substance; (ii) work in a confined space; (iii) work at a height of more than 5 metres above the floor; or (iv) work involving the lifting of heavy weights. However, these Regulations do not contain provisions that deal expressly with work on board fishing vessels. The Committee recalls that the minimum age for assignment to activities on board fishing vessels, which by their nature or the circumstances in which they are carried out are likely to jeopardize the health, safety or morals of young persons, shall not be less than 18 years, and that, only as from the age of 16, these activities may be authorized by national laws or regulations, or by decision of the competent authority, after consultation, on condition that the health, safety and morals of the young persons concerned are fully protected and that the young persons concerned have received adequate specific instruction or vocational training and have completed basic pre-sea safety training (Article 9, paragraphs 3 to 5). The Committee requests the Government to explain how it ensures that no person under the age of 16 years is assigned to activities on board fishing vessels, which are likely to jeopardize their health, safety or morals. The Committee requests the Government to provide the list of the types of such activities on board fishing vessels, determined by national laws or regulations, or by the competent authority, after consultation (Article 9, paragraph 3).
Articles 13 and 14. Manning and hours of rest. The Committee notes that, concerning the regular periods of rest of sufficient length to ensure safety and health, the Government refers to section 93(l) of the Merchant Shipping (Safe Manning, Training and Certification) Regulations, 2013, which provides that the master and owner shall take account of the danger posed by fatigue of seafarers, especially those whose duties involve the safe and secure operation of that ship. In preventing fatigue, owners shall take into account the guidelines provided by the Authority. The Committee requests the Government to provide a copy of these guidelines and to provide detailed information on how it ensures that full effect is given to Article 13 (a). The Committee also notes that paragraph 2 of section 93 of the Merchant Shipping (Safe Manning, Training and Certification) Regulations, 2013, provides that all persons who are assigned duty as officer in charge of a watch or as a rating forming part of a watch and those whose duties involve designated safety, prevention of pollution and security duties shall be provided with a rest period of not less than: (a) a minimum of 10 hours of rest in any 24-hour period; and (b) 77 hours in any 7-day period. The Committee recalls that Article 14, paragraph 1 (b) provides that for fishing vessels regardless of size remaining at sea for more than three days, after consultation and for the purpose of limiting fatigue, the competent authority shall establish the minimum hours of rest to be provided to all fishers, that shall not be less than: (i) ten hours in any 24-hour period; and (ii) 77 hours in any seven-day period. The Committee further notes that draft Merchant Shipping (Safe Manning, Training and Certification) Regulations, 2020, have been published for comments. The Committee notes that section 93, paragraph 2, of these draft regulations does not extend to all fishers the scope of application of measures relating to the minimum rest period. The Committee requests the Government to provide information on any measures adopted or envisaged to give effect to Article 14, paragraph 1 (b) with respect to all fishers working on board fishing vessels at sea for more than three days.
Article 16. Fisher’s work agreement. Content. The Committee notes that section 102, paragraph 3, of the MSA provides for the particulars to be contained in the agreement with the crew. However, it notes that the same section does not include all the particulars specified in Annex II. The Committee notes that the Government has provided a model contract of employment for seafarers and fishers working on registered and licensed commercial vessels of less than 100 gross tons, in terms of section 102 (1) of the MSA. The Committee requests the Government to indicate how it is ensured that, in accordance with Annex II, the particulars to be contained in the fisher’s work agreement include: the fisher's family name, date of birth or age, and birthplace; the place at which and date on which the agreement was concluded; the name of the employer, or fishing vessel owner, or other party to the agreement with the fisher; the conditions of the termination of the agreement; and the minimum periods of rest, in accordance with national laws, regulations or other measures.
Article 18. Fisher’s work agreement. Copy provided to the fisher. The Committee notes that section 103(c) of the MSA provides that when the crew is first engaged, the agreement shall be signed in duplicate, and one agreement shall be delivered to the proper officer and the other shall be retained by the master. The Committee notes the Government’s indication that the competent authority has informed the fishing industry by Marine Notice that fishers must have their copy of the agreement. Recalling that Article 18 of the Convention provides that a copy of the fisher's work agreement shall be provided to the fisher, the Committee requests the Government to provide a copy the relevant Marine Notice and to adopt the necessary measures to give full effect to this provision of the Convention.
Article 20. Fisher’s work agreement. Signature of the owner. The Committee notes that section 102(1) and (2) of the MSA provides that the master of every South African ship shall enter into an agreement on behalf of the employer with every seafarer whom the master engages to serve in that ship; and that the agreement shall be signed by the master before any seafarer signs it. The “employer” is defined in this Act as any person, including the owner or master of a vessel, who employs any person or provides work for him/her on a vessel and who remunerates that person or expressly or tacitly undertakes to remunerate him/her, except as provided otherwise by regulation. The Committee recalls that Article 20 provides that it shall be the responsibility of the fishing vessel owner to ensure that each fisher has a written fisher's work agreement signed by both the fisher and the fishing vessel owner or by an authorized representative of the fishing vessel owner. Recalling that any signatory of the agreement other than the owner should produce a signed “power of attorney” or other document showing that he/she is authorized to represent the owner, the Committee requests the Government to indicate how it ensures that full effect is given to Article 20.
Article 21. Repatriation. The Committee notes that, while various provisions of the MSA relate to repatriation (e.g. sections 114 and 140 dealing with termination of service before the expiration of the engagement period ; section 116 concerning change of ownership; and sections 154 and 155 relating to distressed seafarers), these provisions do not cover all the circumstances provided under Article 21, paragraph 1. The Committee notes that section 114, paragraph 3 of the MSA provides for an exception to the entitlement to repatriation in the case of a seafarer who is not a South African citizen or a citizen of a treaty country (other than the Republic) and who was engaged at a port out of the Republic and discharged at a port outside the Republic. The Committee also notes that section 114, paragraph 2 of the MSA provides that the owner may invoke a “reasonable cause” to be discharged from the obligations related to repatriation. The Committee recalls that Article 21, paragraph 2 provides that the cost of the repatriation referred to in paragraph 1 of this Article shall be borne by the fishing vessel owner, except where the fisher has been found, in accordance with national laws, regulations or other measures, to be in serious default of his or her work agreement obligations. The Committee notes that section 111 of the draft Merchant Shipping Bill 2020 contains relevant provisions that are in line with some of the requirements of the Convention. The Committee requests the Government to adopt the necessary measures to ensure that all fishers on a fishing vessel that flies the South Africa’s flag, regardless of their nationality, are entitled to repatriation in the circumstances provided under Article 21, paragraphs 1 and 2. In relation to section 114, paragraph 2, the Committee also requests the Government to provide information on provisions in national laws or regulations or other measures or applicable collective agreements setting out the procedure to be followed and the standard of proof to be applied before a fisher can be found to be in “serious default of his or her work agreement obligations”. Noting that the Government has not indicated the maximum service period on board after which a fisher is entitled to repatriation and the destinations to which fishers may be repatriated, the Committee requests the Government to explain how it gives effect to Article 21, paragraph 3.
Article 22. Recruitment and placement. The Committee notes the Government’s indication that the Merchant Shipping (Seafarer Recruitment and Placement) Regulations 2017 have been adopted to give effect to the Maritime Labour Convention, 2006 (MLC, 2006), and apply to any seafarer recruitment or placement service that recruits or places seafarers on ships to which this Convention applies. The Committee notes the Government’s indication that these regulations will be amended to include fishers. The Committee requests the Government to adopt the necessary measures in order to give full effect to Article 22. It also requests the Government to provide information on the number of recruitment and placement services that are operating recruitment and placement of fishers in South Africa and on the number of fishers that are placed or recruited through these services.
Articles 25, 26 and 28; Annex III. Accommodation. The Committee notes the Government’s indication that the Construction Regulations, 1968, as amended, and the Crew Accommodation Regulations, 1961, as amended, are giving effect to the detailed requirements of Annex III. Regulations have been drafted and submitted to the Department of Transport for promulgation to give effect to the Cape Town Agreement, 2012 with respect to the requirements of the Torremolinos Protocol. The Committee notes that, in application of section 356bis of the MSA, and subject to the provision of this Act, the Convention has the force of law in the Republic. The Committee further notes that eighth schedule of the MSA includes the full text of the Convention, with its Annex III on fishing vessel accommodation. The Committee requests the Government to explain how it ensures the full application of the detailed requirements of the Convention on accommodation in case of inconsistencies between the provisions of Annex III of the Convention, which have force of law, and the Regulations mentioned above. The Committee also requests the Government to provide information on any measures adopted or envisaged in order to implement Articles 25, 26 and 28 of the Convention.
Articles 25 and 27. Food. The Committee notes that section 156, paragraph 1, of the MSA, provides that the master of a South African ship of more than 100 gross register tons shall furnish provisions to every seafarer who does not furnish his own provisions, in accordance with the prescribed scale. The Committee also notes the Government’s indication that draft amendments to the Merchant Shipping, (Provisions) Regulations, 1961 are awaiting promulgation since 2007. The Committee recalls that Article 27 provides that each Member shall adopt laws, regulations or other measures requiring that: (a) the food carried and served on board be of a sufficient nutritional value, quality and quantity; (b) potable water be of sufficient quality and quantity; and (c) the food and water be provided by the fishing vessel owner at no cost to the fisher. However, in accordance with national laws and regulations, the cost can be recovered as an operational cost if the collective agreement governing a share system or a fisher's work agreement so provides. Noting that section 120 of the draft Merchant Shipping Bill 2020 contains relevant provisions that are in line with the requirements of the Convention, the Committee requests the Government to adopt the necessary measures to give full effect to Articles 26 and 27 of the Convention.
Articles 34 to 37. Social security. The Committee notes the Government’s indication that a legislation has been drafted and submitted to the Department of Transport for promulgation to give effect to the requirements of the Convention on social security. It further notes the Government’s indication that South Africa offers various social security benefits which are extended to all citizens including fishers. The Committee recalls that Article 34 of the Convention provides that each Member shall ensure that fishers ordinarily resident in its territory, and their dependants to the extent provided in national law, are entitled to benefit from social security protection under conditions no less favourable than those applicable to other workers, including employed and self-employed persons, ordinarily resident in its territory. The Committee requests the Government to describe in detail the social security benefits granted to fishers, including fishers working on foreign-flagged vessels, ordinarily resident in the South African territory. The Committee also requests the Government to indicate the measures adopted to implement Articles 34 to 36 of the Convention.
Articles 40 to 44. Compliance and enforcement. The Committee notes the Government’s indication that South Africa has a Safety Survey regime where all commercial fishing vessels are surveyed at least once a year. After the survey inspection by a qualified surveyor, a Notice of Completion of Survey, with any non-conformities, is handed to the skipper or the owner. Once the non-conformities, including checks on the requirements of the Convention, have been attended to, the competent authority issues a Local General Safety Certificate (LGSC) valid for one year. This LGSC is the valid Certificate in South Africa. The Government also indicates that the competent authority initiated an ad hoc survey regime, where vessels are inspected at any time during the period of validity of the LGSC. Part of these inspections are checks on the requirements of the Convention and include interviewing crews on working and living conditions as well as reviewing worker’s agreements. In the first year, 116 ad hoc inspections took place and findings were recorded and communicated to the fishing industry by way of a Marine Notice. The Committee takes note of the relevant information provided by Marine Notice n°5 of 2020 on the ad hoc inspections of South African-flagged fishing vessels in 2019. The Committee also notes that Regulations 5.1.3 and 5.1.4 of the MLC, 2006, on certification and inspection of ships, are implemented by specific Maritime Labour Certificate and Declaration of Compliance Regulations, 2017, which are not applicable to fishing vessels. While noting this information, the Committee requests the Government to provide a copy of the legislation, regulations or any other measures adopted to give effect to Articles 40 and 41 of the Convention. The Committee also requests the Government to indicate if it has authorized any recognized organizations to carry out inspections and issue documents pursuant to Article 42 of the Convention. The Committee notes that section 162 of the MSA provides that if a seafarer of a South African ship considers a) that the provisions or water for the use of the seafarer are at any time of bad quality or deficient in quantity; (b) that the crew accommodation is unsanitary or is not in accordance with the regulations; or (c) that in any other respect the conditions under which the seafarer is living on board ship are not of a reasonably good standard, he or she may complain thereof to the proper officer, who shall investigate the complaint or cause it to be investigated. The Committee recalls that Article 43, paragraph 1 of the Convention provides that a Member which receives a complaint or obtains evidence that a fishing vessel that flies its flag does not conform to the requirements of the Convention - and not only to the food, accommodations and living conditions on board requirements - shall take the steps necessary to investigate the matter and ensure that action is taken to remedy any deficiencies found. The Committee also notes that section 154 of the draft Merchant Shipping Bill 2020 provides for a mechanism for bringing complaints, which only refers to breaches of MLC, 2006 requirements. The Committee requests the Government to provide information on any measures adopted to give full effect to Article 43 of the Convention.

Adopted by the CEACR in 2019

C026 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Articles 1 and 3 of the Convention. Minimum wage fixing machinery. Further to its previous comments, the Committee notes with interest the adoption of the National Minimum Wage Act, 2018, which applies to all workers and their employers, except members of the South African National Defence Force, the National Intelligence Agency and the South African Secret Service. It notes that the Government explains in its report that the country has opted to move away from sectoral wages to a national minimum wage. The Act sets the national minimum wage rate, as well as differentiated rates applicable to certain categories of workers, and provides for regular review by the tripartite National Minimum Wage Commission.

C087 - Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Trade union rights and civil liberties. Allegations of violent repression of strike actions and arrests of striking workers. The Committee had requested the Government to provide information on the action taken to implement the recommendations of the Judicial Commission of Inquiry into the Events at Marikana Mine in Rustenburg, regarding the violent death of 34 workers during a strike action in August 2012. The Committee had noted that these recommendations addressed, among other elements, the use of firearms by the police during violent strike actions, the public accountability of the South African Police Service (SAPS) in case of similar events as well as the effective functioning of the Independent Police Investigative Directorate (IPID). The Committee notes that with regard to the investigation of the case in question, the Government indicates that it is being investigated by the IPID, and that the matter is now in the hands of the National Prosecuting Authority (NPA), which will decide whether or not anyone should be charged and if so, what charges should be brought against those implicated. The Committee further notes that, in its report, the Government indicates that the burden of protracted strikes and strike violence have triggered an agreement by the Government, organized business and organized labour to work together to consider options to address violence and prolonged strikes. The Government explains that the social partners have deliberated under the auspices of the National Economic Development and Advisory Council (NEDLAC) during 2015 and 2016 and have established amendments to the Labour Relations Act (LRA) with regards to picketing, secret ballot and the establishment of an advisory arbitration panel, the Code of Good Practice on Collective Bargaining, Industrial Action and Picketing, and Picketing Regulations. The Committee notes that the Government further indicates that it consulted with NEDLAC constituencies, trade union parties, employer parties, agencies, the SAPS, and NPA on signing the Accord on Collective Bargaining and Industrial Action, agreeing that: (i) the constitutional right to strike and the statutory right to lockout must be peaceful, free of intimidation and violence, including violence and intimidation that may be associated with police action; (ii) strike action by workers and trade unions is a legitimate exercise of power to pursue demands; and (iii) prolonged strike action has the potential to cause serious harm not only to strikers and their employers but also to others inside and outside the workplace. Having noted the adoption of the Accord and the Code of Good Practice on Collective Bargaining, Industrial Action and Picketing, and Picketing Regulations, and also the proposed amendments to the LRA, the Committee requests the Government to send copies of the Accord, the Code of Good Practice, and also of the amended legislation once adopted, and to provide detailed information on any other developments in this regard, including on the implementation of the recommendations of the Judicial Commission of Inquiry into the Events at Marikana Mine in Rustenburg.
The Committee had noted that in its observations of 2015, ITUC denounced the arrest of 100 community health striking workers in July 2014 and the killing, in January 2014, during a clash with the Police that took place in the context of a strike, of a union steward of the Association of Mineworkers and Construction Union (AMCU), and had therefore requested the Government to reply to these observations and to communicate the results of the investigation regarding the death of the union steward. In the absence of information in this regard, the Committee reiterates its requests.
Articles 2 and 3 of the Convention. Rights of vulnerable workers to be effectively represented by their organizations. The Committee had requested the Government to provide information on the application and impact of the provisions of the Labour Relations Amendment Act, adopted in August 2014, aimed at facilitating the representation by trade unions of employees of temporary employment services or labour brokers. The Committee had noted that: (i) by virtue of the Labour Relations Amendment Act, trade unions representing the employees of temporary employment services or of a labour broker may exercise their organizational rights not only at the workplace of the employer, but also at the client’s workplace; and (ii) employees of temporary employment services or of a labour broker who participate in a legally protected strike action are entitled to picket at the client’s premises. The Committee notes that the Government indicates that it has been party to commissioning research on the extent to which trade unions are making use of the new rights in the LRA and that the draft research reports indicate that the impact of the amendments on trade unionization of temporary employees is limited. The Government states that once the report has been finalized, it can be made available to the Committee. The Committee requests the Government to provide a copy of the research reports, as well as information on any other developments in this regard.
In its previous comment, the Committee had also requested the Government to provide information on any measures taken or planned to be taken to implement the conclusions of the 2011 report on Identifying obstacles to unions organizing in farms: Towards a decent work strategy in the farming sector, and to reply to the ITUC’s 2015 observations which alleged that farmworkers are not in a position to meet the requirements to engage in legally protected industrial action. The Committee notes that the Government provides information on its interventions to deal with the difficulties in the farming sector through: (i) a centralized bargaining forum in the farming sector, explaining that centralized collective bargaining remains the main form of fixing minimum wages in South Africa apart from sectorial determinations; (ii) considering the establishment of a national minimum wage that will increase wages of all workers irrespective of a sector or geographical location where the employee works, while still allowing for sectoral determination; (iii) a training provided by the Department of Labour through Inspection and Enforcement Service’s advocacy campaigns to workers, employers and workers’ representatives and empowering workers in the farming sector where union levels are low; (iv) a plan currently under way to enhance the capacity of the labour inspectorate and create more posts in different provinces to inspect, advocate and initiate enforcement on the employment laws to cover all the sectors; (v) availability of funds to unions for advocating workers’ rights; and (vi) a collaboration between the Department of Labour, the government departments and other relevant stakeholders in the farming sector on various policy issues such as labour legislation affecting the farming sector and occupational health and safety on farms. The Committee welcomes the Government’s interventions to address difficulties in the exercise of the right to organize by farmworkers and requests the Government to provide information on any further developments in this regard, including as to ITUC’s 2015 observations alleging difficulties for farmworkers to engage in legally protected industrial action.

C098 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Article 1 of the Convention. Adequate protection of casual workers against anti-union discrimination. In its previous comment, the Committee requested the Government to provide information about the effects of the provisions of the Labour Relations Amendment Act, adopted in August 2014, aimed at better protecting the rights of workers employed by labour brokers. The Committee notes the Government’s information concerning the scope of the protection introduced by the Labour Relations Amendment Act, adopted in 2014. It also notes that the Government indicates that to date, no cases have been referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) that deal specifically with anti-union discrimination where casual workers or employees in non-standard work are affected. Recalling that, in its previous comments, it noted the International Trade Union Confederation (ITUC) allegations concerning the difficulties faced by casual workers, especially those employed by labour brokers, joining trade unions because of the fear of not having their fixed-term contracts of employment renewed in case of affiliation, the Committee requests the Government to continue providing information on the cases of anti-union discrimination referred to the CCMA that may involve workers employed by labour brokers.
Article 4. Promotion of collective bargaining. Sectors of activity characterized by a high proportion of workers engaged in non-standard forms of employment. The Committee noted previously that section 21 of the Labour Relations Act, as amended by the Labour Relations Amendment Act adopted in 2014, provides that in case of a dispute about a trade union’s level of representativeness, the decision taken by the commissioner must, in addition to the factors already provided for in the law, also consider the extent to which there are workers engaged in non-standard forms of employment in the corresponding bargaining unit (temporary employment services (labour brokers) employees, employees with fixed-term contracts, part-time employees, or employees in other categories of non-standard employment). The Committee therefore requested the Government to provide information on the application and impact of the mentioned section, especially on the coverage of non-standard workers by collective agreements. The Committee notes the Government’s indication that to date no cases have been reported by the CCMA on the exercise of section 21 rights. It further notes the Government’s statement that the application of section 21 is to be monitored in the future and, in the meantime, a number of bargaining councils have started providing information on the composition of the workforce in their sector, identifying the number of employees assigned to work by temporary employment services. The Government points out that, among these bargaining councils, three (the Building Industry Bargaining Council in the Cape of Good Hope, the Motor Industry Bargaining Council (National), and the Bargaining Council for the Restaurant, Catering and Allied Trades in Gauteng Province) have identified temporary workers within their scope of operation and have collective agreements that cover such workers. The Committee requests the Government to continue providing information on the application and impact of section 21 of the Labour Relations Act, as amended by the Labour Relations Amendment Act, particularly on the coverage of non-standard workers by collective agreements.

C189 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Article 3(2)(a) of the Convention. Freedom of association and collective bargaining. In its previous comments, the Committee requested the Government to provide information regarding measures taken or envisaged to ensure the protection of the right of domestic workers, including domestic farmworkers, to freedom of association, as well as their right to collectively bargain. In its response, the Government indicates that freedom of association and the right to collectively bargain are fundamental rights to which every worker is entitled, including domestic and farmworkers, and is protected under the Labour Relations Act No. 66 of 1995 (as amended), as well as under section 27 of the Constitution of South Africa. It further indicates that the Part C of the Act provides the right for representatives of trade unions to create mechanisms for collective bargaining between trade unions and employers or employers’ organizations. The Committee notes that a few bargaining councils have been established and are currently operating in various sectors, such as the building industry, the motor industry, the restaurant, catering and similar trades; however, no councils have yet been established in the domestic work sector. The Committee requests the Government to provide updated information on any measures taken or envisaged with a view to promoting the right of domestic workers to form and join organizations of their own choosing, as well as the right to collectively bargain, taking account of the particular characteristics of domestic work. In addition, the Committee requests the Government to supply information with respect to any measures taken or envisaged to establish a bargaining council in the domestic work sector, as well as any other developments in respect to the exercise of domestic workers’ freedom of association and collective bargaining rights.
Article 8(4). Migrant domestic workers. The Committee previously requested the Government to provide information on measures taken to ensure the effective application of Article 8 of the Convention, including measures taken or envisaged to protect the rights of female migrant domestic workers. The Committee also requested the Government to provide information on the conditions under which migrant domestic workers in South Africa would be entitled to repatriation in accordance with Article 8(4) of the Convention. The Government once again refers to the African Union Special Initiative on Domestic Workers of 2015, which seeks to facilitate the integration of domestic workers within the relevant labour market institutions, recognizing that female domestic workers are one of the most vulnerable categories of workers in Africa. The Committee notes, however, that the Government does not provide any information in respect of specific measures aimed at safeguarding the rights of female migrant domestic workers and protecting them from abuse or exploitation. With regard to the repatriation of migrant domestic workers, the Government refers to the bilateral agreement between South Africa and Lesotho, providing that migrant domestic workers must be issued with a written job offer, referred to as “written particulars of employment”, before they cross national borders for the purpose of taking up domestic work. The job offer contains a provision that, on termination of employment, or resignation, the domestic workers should be repatriated to their country at the cost of the employer. The Committee reiterates its request that the Government provide information on any measures taken or envisaged to protect the rights of female migrant domestic workers under national laws or regulations, bilateral, multilateral, regional agreements or other arrangements.
Article 9(c). Possession of travel and identity documents. The Committee notes that, once again, the Government provides no information regarding the manner in which it is ensured that domestic workers are entitled to keep their travel and identity documents in their possession, as required by Article 9. The Committee therefore reiterates its request that the Government provide information on the manner in which effect is given to this provision of the Convention.
Articles 10 and 11. Equal treatment and minimum wage. The Committee requested the Government to provide information on measures taken to ensure equal treatment between domestic workers and other workers in respect of terms and conditions of employment, including measures taken to ensure that the remuneration of domestic workers is established without discrimination based on sex. The Government once again indicates that, pursuant to the Basic Conditions of Employment Act, domestic workers are entitled to the same terms and conditions of work, including hours of work, overtime compensation, periods of daily and weekly rest and annual leave, as other workers. In respect of minimum wage protections for domestic workers, the Committee notes that section 6(6)(1) of the National Minimum Wage Act, 2018 (Act No. 9) sets the national minimum wage at R20 per hour. In contrast, the national minimum wage for domestic workers is inferior to the national minimum wage rate. Section 6(6)(2)(b)) of the National Minimum Wage Act, 2018, sets the minimum wage for domestic workers at R15 per hour, whereas section 6(6)(2)(a) of the Act sets the national minimum wage for farm workers – defined to include persons performing domestic work on a farm – is set at R18 per hour. The Committee notes that both rates are lower than the minimum rate of R20 per hour applicable to workers generally. The Committee requests the Government to take measures to ensure that domestic workers receive the same minimum wage rate to which other workers are entitled. It further reiterates its request that the Government provide information on measures taken to ensure that the remuneration of domestic workers is established without discrimination based on sex.
Article 13. Occupational health and safety. The Committee previously requested the Government to provide information on the application of Article 13 of the Convention, including up-to-date information on measures taken or contemplated to ensure the occupational health and safety of domestic workers, taking into account the particular characteristics of domestic work. The Government reports that domestic workers employed in a private household are still excluded from the scope of the Compensation for Occupational Injuries and Diseases Act (COIDA) and their only recourse is to institute civil proceedings against their employers for damages suffered due to an occupational injury or disease. The Committee notes the Government’s indication that South Africa's domestic workers are now on the verge of being covered by the COIDA, as soon as the parliamentary process is finalized. The Government indicates that. until the inclusion of domestic workers is confirmed, employers should nonetheless show foresight and evaluate their domestic workplaces, taking reasonable measures to ensure a safe working environment for their domestic workers. In this regard, the Committee notes that the High Court of South Africa at Pretoria recently ruled that the exclusion of domestic workers from the COIDA is unconstitutional (Mahlangu v The Minister of Labour (Mahlangu) – 23 May 2019). The Committee requests the Government to provide detailed updated information on progress made in ensuring the occupational health and safety of domestic workers, as well as in ensuring that domestic workers employed in private households are included in the scope of the Compensation for Occupational Injuries and Diseases Act (COIDA).
Article 14. Social security. The Committee notes the Government’s reply to its previous request regarding the application of this provision of the Convention, which replies fully to its request.
Article 15. Protections against abusive employment practices. The Committee reiterates its request that the Government provide information on the measures taken to implement the provisions of this Article, including information on consultations that have taken place with the social partners as well as with organizations representative of domestic workers and those representative of employers of domestic workers, if any.
Article 17. Complaints mechanisms. Labour inspection. The Government once again indicates that domestic workers have the same rights as other workers to lodge complaints with the inspection and enforcement services under South African labour legislation. In this regard, and recalling the vulnerable situation of domestic workers, the Committee reiterates its request that the Government provide information regarding specific measures taken or envisaged to ensure the effectiveness and accessibility of complaints mechanisms for the protection of the rights of domestic workers. In addition, the Committee requests the Government to provide information regarding labour inspection in the domestic work sector, including statistical information on the number of inspections carried out, the number and type of violations identified and the sanctions imposed.
Judicial decisions. The Committee reiterates its request that the Government provide information regarding any decisions issued by the courts or by the Conciliation, Mediation and Arbitration Commission, relevant to the application of the Convention.
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