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

Article 1 of the Convention. Legislative developments. The Committee notes that the Labour Act (No. 11 of 2007) entered into force on 1 November 2008. It notes with interest that the new Act, while essentially maintaining sections 5 and 7 of the former Labour Act, 2004, concerning non-discrimination and the resolution of related disputes, has broadened the scope and the definition of discrimination. Previously, section 5 provided that a person must not discriminate “in any employment practice”; the current section states that a person must not discriminate “in any employment decision … or adopt any requirement or engage in any practice which has the effect of discrimination”, which appears to cover indirect discrimination. The prohibited grounds, however, remain the same: race, colour, ethnic origin, sex, marital status, family responsibilities, religion, creed, political opinion, social or economic status, degree of physical or mental disability, AIDS or HIV status; or previous, current or future pregnancy. A new provision in section 33 has been added, providing that dismissal on the basis of an employee’s sex, race, colour, ethnic origin, religion, creed or social or economic status, political opinion or marital status is unfair dismissal. The Committee notes, however, that section 33 omits the additional grounds of AIDS or HIV status, degree of physical or mental disability and family responsibilities which are listed in section 5. Further, the Committee regrets that the 2007 Act does not prohibit discrimination on the grounds of sexual orientation, which had been covered under the 1992 Act, and which the Government had previously indicated was to be covered pursuant to Article 1(1)(b) of the Convention. The Committee requests the Government as follows:

(i)    to provide information on the practical application of sections 5, 7 and 33 of the Labour Act, 2007, including information on the number, nature and outcome of disputes brought before the competent authorities;

(ii)   to indicate the measures taken or envisaged to ensure that workers are protected against dismissal on the grounds of HIV or AIDS status, degree of physical or mental disability and family responsibilities, including whether any cases in this regard have been lodged with the courts or other competent bodies and the results thereof; and

(iii) the Committee again requests the Government to provide information on any measures taken or envisaged to ensure that workers are protected against discrimination on the grounds of sexual orientation.

Articles 2 and 5. Implementation of national policy and affirmative action. In its previous observation the Committee noted that, although the number of affirmative action plans received under the Affirmative Action (Employment) Act, 1998, had increased during 2005–06, this had not necessarily translated into an improvement of the representation of persons in designated groups in management positions. The Committee also noted that the reporting threshold was lowered to workplaces with more than 25 employees. The Committee notes from the 2007–08 annual report of the Employment Equity Commission that the representation of racially disadvantaged persons in managerial positions dropped by 5 per cent. The report also shows that racially disadvantaged persons represented approximately 90 per cent of the total number of employees, and accounted for 59 per cent of the workers in managerial positions but only 27 per cent of them held a post as executive director. Women represented only 16 per cent of the total numbers of executive directors while accounting for 41.47 per cent of employees. As to persons with disabilities, the Committee notes that they represented 0.4 per cent of the total number of employees reported and they held 0.8 per cent of the managerial positions. The Committee further notes that the scarcity of skilled persons from designated groups (racially disadvantaged persons, women, persons with disabilities) was cited by some employers as an obstacle to the implementation of affirmative action. The Committee also notes that persons from designated groups are concentrated in the public service and the service sector. The Committee requests the Government to continue to provide information on the measures taken or envisaged to implement affirmative action in employment and occupation, and on any measures to increase the impact thereof. Please include information on measures to ensure and promote equality of opportunity and treatment of persons from designated groups in respect of access to vocational training with a view to fostering both their career advancement and their access to a wider range of jobs. The Committee also requests the Government to supply information on any other policies and measures taken to promote and ensure the application of the principle of the Convention with respect to the designated groups, in cooperation with the social partners, and their impact.

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