against unfair discrimination in the workplace. Despite this, structural inequalities, the sexual division of labour in the home and sexist attitudes mean that discrimination continues.
International Standards
This Convention was adopted by ILO adopted on 4 June 1958 against the background of the declaration of Philadelphia that 'all human beings, irrespective of race, creed or sex, have the
right to pursue both their material well-being and their spiritual development in conditions of
freedom and dignity, of economic security and equal opportunity'. The ILO also took into consideration that discrimination constitutes a violation of rights enunciated by the Universal Declaration of Human Rights.Discrimination has been defined as:
■ any distinction, exclusion or preference made on the basis of race, colour sex, religion, political opinion, national extraction or social origin, which has the effect of
nullifying or impairing equality of opportunity or treatment in employment or
occupation;
■ such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may
be determined by the Member concerned after consultation with representative
employers1 and workers' organisations, where such exist, and with other appropriate bodies (ILO Convention 111, article 1).The Convention requires each member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof (article 2).
What we measure:
The Convention requires attention to negative and positive measures to address discrimination. This includes the development of a regulatory framework to address complaints of discrimination, as well as provision for proactive measures to reduce discrimination and eradicate inequality.
RATIFICATION
The Convention was ratified on 5 March, 1997 by the government.
This scores a '2\
REPORTING 1 Reporting is regulated by article 22 of the ILO Constitution. This enables the ILO periodically to request reports from stales that have ratified ILO conventions. This is compulsory reporting and SA has still to respond to a request for a report in September 2003. This is now due between June and September 2004. It is currently being compiled. (Interview, International Labour Desk, Department of Labour).
This report appears to be behind schedule and scores * I'.
POLICY 2
Policy standards are set by the Constitution. Section 9 of the Constitution guarantees the right to equality and permits measures to advance and protect persons who have been unfairly discriminated against in the past. Policy standards are also set by the Convention which is regarded as persuasive in South African Law.
Government has committed itself to anti-discriminatory and positive equality measures in the public sector workplace in policy documents, such as the White Paper of the Transformation of the Public Service. The Employment Equity White Paper set out policy for the workplace more broadly. Both include sex/gender as a key area of discrimination to be addressed.
This comprehensive policy framework scores a '2'.
LAW 2
The South African government has in place the following laws that address forms of unfair discrimination. These are:
■ The Basic Conditions of Employment Act. No. 75 of 1997.
This is primarily aimed at improving the working conditions of all workers, including unorganized and vulnerable workers.
■ The Employment Equity Act. No. 55 of 1998.
Section 6 prohibits unfair discrimination. It states that no person may unfairly discriminate directly or indirectly against an employee, in any employment policy or practice, on one or more grounds, including gender, sex, pregnancy, marital status, and family responsibility.
The Employment Equity Act also contains a number of positive measures to advance equality and equal opportunity in the workplace. The Act emphasizes equitable representation of members from designated groups, one of which is women. Section 20(2) (c) states that where designated groups are underrepresented; employers are required to prepare an employment equity plan that includes numeric targets as opposed to compulsory quotas.
This plan suggests that employers should put forward measures to identity and eliminate employment barriers, including unfair discrimination, which adversely affect people from designated groups. It also requires seeks workplaces to accommodate members of the designated groups and to implement training measures / skills development plans.
Centre for Applied Legal Studies ILO Conventions
University of the Witwatersrand
African Women's Progress Report Economic Power South Africa
■ The Skills Development Act. No. 97 of 1998. It sets up a framework to ensure the
development of skills and equal access to training.This comprehensive legislative framework scores a '2'.
DEVELOPMENT OF A PLAN 1
The issue of gender discrimination was is included in the Minister's Fifteen Point Programme of Action (1999-2004). It is the duty of the employment equity directorate in the Department
of Labour to administer the Employment Equity Act. This includes the promotion of
employment equity and the elimination of unfair discrimination. The directorate is also tasked with disseminating codes of good practice and regulations to eliminate discrimination and promote employment equity in the workplace. Although we are aware of several activities, we could not identify a specific plan or specific aspects of a plan relating to gender discrimination.The Commission on Employment Equity has an advisory role on employment equity and is expected to develop codes of good practices and employment equity plans. It does not seem to have a plan that addresses gender discrimination through codes or model plans.
While there are general indications that planning includes women, there are no specific plans to address discrimination and employment equity in a consciously gendered way. This scores
a'l\
TARGETS j
The Act requires employers to set their own targets for the removal of discrimination in the workplace. As an employer, government has set targets for the advancement of women in the public sector. The White Paper on the Transformation of the Public Service set a target of 30% women in middle and senior management (above director level) (Batho Pele).
We are not aware of any specific targets for departmental activities in addressing the problem of gender discrimination in the workplace more broadly. This scores a 'I'.
INSTITUTIONAL MECHANISMS 1
Institutional mechanisms exist to implement the laws made under the convention. These include:
/. The Commission for Employment Equity, which is in place to advise the Minister of labour on policy matters and to develop codes of good practices and employment equity plans.
2. The employment equity directorate in the Department of Labour whose duty is to:
■ Administer the employment equity act
■ Promote employment equity and eliminate unfair discrimination.
■ Disseminate codes of good practice and regulations to eliminate discrimination and promote employment equity in the workplace.
3. Labour inspectors. They have the authority to enter the workplace and must request
and obtain from a designated employer an undertaking to comply with article 36 of the Act within a specific period. Labour inspectors may issue an employer with compliance orders should the employer refuse to give a written undertaking or fail tocomply with a written undertaking. - One of their functions is the enforcement and
administration of the Basic Conditions Employment Act, Labour Relations Act, Employment Equity Act, and the Occupational Health and Safety Act.
4. Labour Court, which hears cases in relation to unfair discrimination provided for in the Act. For example the report made by the government of South Africa to the ILO for the period 30 July 1998 to 30 June 1999 gives an example of a case heard in the labour court of an employer who refused to appoint a pregnant applicant due to her being pregnant.
5. Individual employees or trade unions may bring the alleged contravention of the Act to the attention of labour inspectors, a trade union, the employer, the Director General of the Department of Labour or the Employment Equity Commission.
6. The Commission for Conciliation, Meditation and Arbitration (CCMA), for the effective implementation of the legislation this institution has developed codes, guidelines and regulations to assist employers and employees to draft plans, do workplace analyses and report to the Department of Labour's' national office.
While many institutional mechanisms are in place, the absence of a Gender Focal Point scores
BUDGET «
Funds are available to meet the outputs of the Minister's Fifteen Point Programme of Action (Interview, Department of Labour official). However, as there is no evidence as to which parts go to addressing gender discrimination and there does not seem to be a budget for proactive measures to address gender discrimination. As we are unable to disaggregate the budget to understand budgets linked to objectives, this scores a T.
HUMAN RESOURCES 1
The CCMA has been involved in the training of staff at the Department of Labour and the CCMA to handle inquiries, cases and disputes relating to discrimination and employment equity (Department of Labour, Report to the ILO 1998/9).
During 2001 the Chief Directorate employed 210 staff members and has adopted, through its corporate plan, a human resources plan encompassing training and development and employment equity (affirmative action, elimination of unfair discrimination, managing and valuing diversity and equalizing opportunities) (Department of Labour, Preliminary Annual Report 2001/2).
However the Chief Directorate (labour market policy) operated without a Chief Director in 2001/2002. This post is currently vacant.67 Although the Chief Directorate managed to fill seven of its vacant posts, it is still under-resourced. The present staff compliment of 18 was stretched to the extreme to meet the statistical and research needs of the Department (Department of Labour, Preliminary Annual Report 2001/2).
This scores a'1'.
66 At the Research Meeting in Addis Ababa, October 2004, it was confirmed that the absence of a Gender Focal Point should reduce the score wherever such GFP was required.