International Labour Conventions: Department's briefing, Committee's approval to ratify

NCOP Public Enterprises and Communication

19 February 2013
Chairperson: Ms M Themba (ANC; Mpumalanga)
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Meeting Summary

The Department of Labour briefed the Committee of Labour and Public Enterprises on four Conventions to be ratified by South Africa, namely: Labour Inspection Convention, 1947(No 81) Domestic Worker Convention, 2011 (No 201), The Maritime Labour Convention 2006, Convention on Work in the Fishing Sector, 2007 (No 188),  as well as the Recommendation concerning HIV and AIDS and the World of Work (No 200) and the South African Code of Good Practice on HIV and AIDS and the World of Work, 2012. A number of countries had already ratified these Conventions. Each would be required to submit reports on implementation of each convention. The conventions resulted from discussions at the International Labour Organisation (ILO), although South Africa had also had a huge impact on the development of most of these conventions.

The Labour Inspection Convention on Work in the Fishing Sector Industry provided for working conditions of workers and their protection on duty, and the responsibility of labour inspectors to enforce these provisions. It also ensured that workers at sea received social security protection and provided for guidelines for designing and monitoring an efficient labour inspection system. South Africa had shown readiness to ratify the Governance Conventions on Labour. The Convention on Work in the Fishing Sector intended to ensure proper construction and maintenance of fishing vessels. If working and living conditions on vessels were found to be unacceptable, the Convention required that they be improved. The Convention also provided for mechanisms to ensure compliance and enforcement by states.

The Domestic Workers Convention and the Recommendation were adopted on 16 June 2011. Member States were required to ratify the Convention and Recommendation, and guidelines needed to apply the Convention. The Recommendations were non-binding guide lines for other countries. South Africa was aligned with most of the Convention provisions already.

The Maritime Labour Convention’s objective was to ensure global protection of the rights of seafarers and to protect countries and ship-owners dedicated to decent working and living conditions for seafarers. The Regulations under this convention were supplemented by Standards and Guidelines in its Code and were prearranged under five titles. The ILO's Governing Body identified eight international labour conventions as fundamental and those were in the Preamble to this Convention. Countries such as South Africa, who had ratified the fundamental Conventions are to report to the ILO on the measures they have taken to give effect to their obligations.

The Recommendation on HIV and AIDS and the World of Work provided for workplace policies and programmes on HIV and AIDS. Member states were bound to comply with the Convention whereas the Recommendation contained non-binding guidelines. A Recommendation served as a guideline to augment the details in Conventions. The Department of Labour had adopted the Recommendation after consultation with NEDLAC, and had approved the revised Code of Good Practice on HIV and AIDS on 13 March 2012.

Members asked questions of clarity, requested whether there were adequate measures to enforce compliance, requested more detail on the articles to do with migrant domestic workers, questioned why so few other countries had signed the Domestic Workers Convention, why it had taken so long to process these conventions, and recommended that they be ratified by the House.

Meeting report

International Labour Conventions: Department of Labour briefings and request for approval to ratify
Mr Les Kettledas, Deputy Director General, Department of Labour, presented a series of international labour conventions to the Committee. These had been signed but the Committee needed to make a recommendation to the House as to whether they may be ratified.

Mr Kettledas noted that the four conventions were:
Labour Inspection Convention, 1947(No 81)
Domestic Worker Convention, 2011 (No 201)
The Maritime Labour Convention 2006 Convention on Work in the Fishing Sector, 2007 (No 188)
Recommendation concerning HIV and AIDS and the World of Work (No. 200)

He informed the committee that the conventions emanated from discussions of the International Labour Organisation (ILO) and emphasised the impact South Africa had in the development of most of those conventions, particularly the one on HIV and AIDS and its Recommendations. He indicated that 143 countries had ratified the Labour Inspection Convention, four had ratified the Domestic Workers Convention, 35 had ratified the Maritime Labour Convention, and two had ratified the Convention on Work in the Fishing Sector. After ratification, each country would be required to submit a report on the implementation of each convention in the first two years, and thereafter would be obliged to report on a regular basis.

Labour Inspection Convention, 1947 (No 81)
Mr Kettledas said that this Convention on Work in the Fishing Sector Industry entailed provisions intended to ensure, among other things, safety and health issues at work. He emphasised that the Convention made sure that workers at sea received social security protection in line with other workers, and provided guide lines for designing and monitoring an efficient labour inspection system (see attached document for full details).

The core provisions of the Convention were briefly stated as including legal provisions on working conditions of workers and their protection on duty. They set out the responsibility of labour inspectors to enforce provisions on matters such as working hours, wages, safety, and child labour. Effective compliance with the legal provisions by employers and workers was likely to be successful provided labour inspectors clarified technical information and advice.
Labour inspectors were responsible for alerting authorities to legal flaws that had been identified, particularly if they were not catered for elsewhere.

The ILO, in 2010, had carried out a
gap analysis on law and practice on the Labour Inspection Convention and found that law and practice seemed to be sufficiently balanced in South Africa, an indication of the readiness of the country to ratify the Governance Conventions on labour inspection. In the South African context, the Labour Inspectorate of the Department of Labour (DoL or the Department) was entrusted with ensuring labour law compliance, especially employment equity. The Labour Inspectorate was also entrusted with duties related to protection of health and safety of persons at work, and with protection of persons outside work against hazards to health and safety, as a result of the analysis of the health conditions of previously employed persons.

On 1 April 2011 the Department had established a unit on Labour Inspections to ensure that the country would deliver on the requirement of the labour inspection convention. Mr Kettledas concluded by saying that developing countries needed
to legislate and introduce policies allowing for similar labour inspectorates and to enforce labour law compliance to international conventions, despite the limitations of resources.

Domestic Worker Convention, 2011 (No 189)  
Mr Kettledas noted that in 2010, the ILO Governing Body began drafting the Domestic Worker Convention and its Recommendations. The Domestic Workers Convention, 2011 (No 189) and Domestic Workers Recommendation, 2011 (No 201) were adopted on 16 June 2011. Member States were required to ratify the Convention and Recommendations, and guidelines were needed to apply the Convention. He explained that recommendations would be non-binding on other countries and were intended as guidelines to how they should manage matters.

The Convention provided for domestic workers’ basic labour rights worldwide and said that they should be equivalent to those of other workers in terms of the new ILO standards. Domestic workers should also be allowed to join unions. The Convention related to all domestic workers and provided for protection against domestic exploitation of younger workers and foreign nationals. Mr Kettledas said that the new Convention would become enforceable only after two countries had ratified it. The Recommendation provisions included freedom of association and the right to collective bargaining, creating understanding of terms and conditions of employment amongst workers, and noted that discrimination in respect of employment had to be eliminated. However, he remarked that most domestic workers did not know their rights, especially those concerning terms and conditions of their work.

South Africa was aligned with most of the Convention, as indicated by the articles included in the document (see attached document, at pages 16 -17.

Maritime Labour Convention:
2006: Convention on Work in the Fishing Sector, 2007 (No 188)    
Mr Kettledas explained that the international seafarers’ and ship owners’ organisations and governments had done work leading to the creation, in 2006, of the Maritime Labour Convention (MLC). The MLC intended to ensure global protection of the rights of seafarers and to protect countries and ship owners dedicated to decent working and living conditions for seafarers.

The Regulations of the MLC were accompanied by Standards, and Guidelines were set out in its Code,  arranged under five Titles. These dealt, respectively, with minimum requirements for seafarers to work on a ship; employment conditions; accommodation, recreational facilities, food and catering, health protection, medical care, welfare and social security protection, and compliance and enforcement. Mr Kettledas said that it was a challenge to provide the types of facilities in a ship as recommended in Titles 3 or 4.

The Convention provided for seafarers' rights to decent conditions of work, covering a wide range of requirements. The rights would be globally applicable, easily understandable, readily updatable and uniformly enforced. The Convention was designed to be a global instrument known as the "fourth pillar" of the international regulatory regime for quality shipping – thus complementing the key Conventions of the International Maritime Organization (IMO).

Measures that a country could take to ensure that the MLC was properly applied included national laws or regulations. Applicable collective bargaining agreements or other subsidiary legislation could also be used, except where the Convention specified that countries should adopt national laws and regulations for implementation of some provisions, or if the MLC provisions specified that action should be taken by governments themselves through internal administrative instructions. It was possible that a country could decide that it had no need for further legislative measures.
 
The ILO's Governing Body identified eight international labour conventions as fundamental. These covered subjects that were considered as fundamental principles and rights at work,  freedom of association and the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory labour,  the effective abolition of child labour,  and the elimination of discrimination in respect of employment and occupation.

These Conventions were listed in the Preamble to the MLC. Countries that ratified the MLC were required, under Article III, to ensure that the provisions of their national legislation respected those fundamental rights. Countries that had ratified the fundamental Conventions, such as South Africa, were in obliged to report to the ILO on the measures that they had taken to give effect to their obligations under those Conventions in all sectors of work, including the maritime sector.

Mr Kettledas indicated that the Department of Labour had consulted with the Department of Transport and had agreed to establish a joint inter-disciplinary committee, which would be headed by the Department of Transport. This committee would advise on the implementation of the Maritime Labour Convention and Work in the Fishing Sector Convention. The Maritime Industry would be invited and asked to identify members who would represent their interests.
 
Convention on Work in the Fishing Sector, 2007, (No 188)   
The Convention was intended to ensure that constructions and maintenance of fishing vessels took into consideration long periods spent at sea by workers. The Convention also provided for mechanisms to ensure compliance and enforcement of the Convention by states, and it required fishing vessels on extended voyages to be liable for inspections in foreign ports to protect fishers on board from hazardous conditions. If working and living conditions on vessels were thought to be unacceptable, they had to be improved.
Numerous countries would not be able to implement the Convention provisions due to lack of relevant institutions and/or infrastructure. However, to encourage states to ratify at an early date and thereby encourage plans that finally extend protection to all fishers, there was an innovative legal mechanism that would allow states to gradually implement some of the Convention provisions aimed at enforcing establishment of national laws, and making regulations on issues affecting fishers’ lives.

An ILO report had shown that conditions of work depended on the size of fishing vessels and fishing operations in the fishing sector. Therefore, compliance was based on whether vessels were small or big and at sea for shorter or longer periods. Most of the workers’ payments were based on the share of the catch, and under national legislation that would amount to self-employment. The report stated that fishing was regarded as one of the most hazardous and unpredictable jobs.

The ILO report stated that fishing, whether industrial or small-scale, was subjected to the globalisation enforcement, mainly because fish were often processed and shipped to other parts of the world. In some instances fishers would be compelled to be far away from the coast to reach marine resources. It was these challenges that necessitated an inclusion of labour legislation in the fishing sector to make the profession more attractive and sustainable.

Mr Kettledas concluded that consultations between governments and representatives of fishing vessel owners and fishers were a vital element of the Convention and were echoed throughout its provisions.
 
Recommendation concerning HIV and AIDS and the World of WORK, 2010 (No 200)

Mr Kettledas reminded Members that in terms of international law, member states would be bound to comply with conventions, but recommendations merely contained non-binding guidelines. The Recommendations could also serve as guidelines to augment the details in the Convention, for example, Convention 111 on the Elimination of Unfair Discrimination. The ILO Recommendations on HIV and Aids and the world of work had now been drawn for how states should act.  National AIDS plans and strategies as well as other national sectoral strategies could be well informed through the development, adoption and effective implementation of national tripartite workplace policies and programmes on HIV and AIDS, and so the Recommendations stated that such policies and programmes should be effectively implemented.

The Recommendations provided that international cooperation in responding to the pandemic needed to be increased. Cooperation would be successfully implemented if the employers’ and workers’ organisations were actively engaged. National and international cooperation and collaboration between and among ILO member states and their national AIDS authorities, intergovernmental organisations, organisations representing persons living with HIV, and other relevant sectors, especially the health sector, needed to increase.

Mr Kettledas reminded Members that the South African Bill of Rights preserved all individuals’ right to dignity and said that no individual would be discriminated against on a variety of grounds. Although the Bill of Rights did not specifically mention HIV and Aids, it was argued that various human rights could also relate to HIV and AIDS.

Existing legislation on HIV and AIDS seemed to have had a significant role to play in labour law.  The Employment Equity Act 55 of 1998 stipulated that no employer could unfairly discriminate against anyone based on his/her HIV status. Mr Kettledas noted, however, that the constitutional right to privacy was recognised in legislation that prohibited pre-employment HIV testing.

The Department of Labour had adopted the ILO Recommendation on HIV and AIDS and the World of Work, after consultations with its constituents at the National Economic Development and Labour Council (NEDLAC), had finalised and approved the revised Code of Good Practice on HIV and AIDS and the World of Work on 13 March 2012, and published it on 15 June 2012.

The Code’s objective was to provide guidelines that would assist employers, workers and their organisations, and for development and implementation of wide-ranging and gender-sensitive HIV and AIDS workplace policies and programmes. It was important that these two be developed in both the public and private sectors, and within the framework of decent work in the formal and informal sectors, to make sure that problems were adequately addressed. The HIV and AIDS Technical Assistance Guidelines (TAG) had been revised to give effect to the HIV and AIDS Code in order to realise objectives such as guiding employers, implementing the Code by workers and their organisations and giving practical information on the implementation of HIV and TB.

Mr Kettledas concluded by saying that the popularisation of HIV and AIDS Code and TAG would be done through the Departmental Annual Employment Equity road shows, to be held in August and September 2013. Awareness programmes will also be pursued with social partners, particularly with Business and Labour.

Discussion
Mr O De Beer (COPE, Western Cape) commented on problems faced by workers in the fishing industry and asked if South Africa had signed the conventions on the rights of workers. He also asked if programmes were resourced, and if adequate measures had been put in place to enforce compliance.

Mr Kettledas replied that when South Africa was ready to ratify a convention, it had to make sure that its legislation or policies were in line, or would be brought in line with the fundamental Conventions, in this case in terms of the Maritime Labour Convention (MLC). South Africa had already ratified about eight fundamental conventions, when it was evident that it could comply with the Convention.

Mr Z Mlenzana (COPE, Eastern Cape) asked whether the three Recommendations on domestic workers were being implemented. He also asked about the stance of South Africa in relation to Article 7 - Migrant Domestic Workers – and particularly whether the country still needed to do a substantial amount of work in this regard and whether there were other challenges preventing ratification of this Convention.

Mr Kettledas replied that the matter was being dealt with, but there were some issues that needed to be discussed, which would be done on 15 March 2013.  He noted that domestic workers were free to join unions. When the stakeholders met at the National Economic Development and Labour Council (NEDLAC), there were representatives of domestic workers, and Business Unity South Africa (BUSA).  There were discussions on the processes that would enable South Africa to ratify the Domestic Worker Convention. Once 30 countries had signed, the Convention would come into force.

Mr H Groenewald (DA, North West) said that only 35 countries had ratified the Convention on Maritime Labour and asked how would the other countries abide by the convention, and how they would be accommodated.

Mr Kettledas that replied some of the questions could be directed to other parliamentary committees, including those dealing with transport. However, he indicated that were supervisory mechanisms meant to deal with those issues.

Mr M Sibande (ANC, Mpumalanga) noted that only four countries had signed the Domestic Workers Convention, namely Italy, Mauritius, Philippines and Uruguay. He asked why South Africa had only complied, but had not yet ratified the Convention and what the position of other countries was.
 
Mr Kettledas replied that South Africa was currently also in a process to ratify the Domestic Worker Convention. It had, technically, already complied, and noted that other countries, including 54 African countries, supported the ratification of this Convention. SADC supported the convention.

Mr R Tau (ANC, Northern Cape) asked why the DoL took so long to process the Conventions and bring them before the Committee. He noted that there had been problems in the fishing industry in the past, referred to 2006 and 2011 and asked what the DoL or other departments had done about those in the fishing industry. He also asked how the Department solved the problems, including those that were raised through the gap analysis on the law and practice associated with the Labour Inspection Convention.

Mr Kettledas replied that in order to comply with the Labour Inspection Convention, a unit on labour inspection had to be formed in ratifying countries, and that had caused a delay. The Labour Inspectors were liable for informing the authority on flaws that had arisen. There were now mechanisms in place, and workers and employers should be provided with technical advices by labour inspectors.

The Chairperson asked Mr Kettledas to advise of the possible problems that employers might encounter with regard to implementation of South Africa’s labour laws.

Mr Kettledas answered that he was sure that employers’ problem would be heard taken into consideration.

The Committee resolved to recommend ratification of the four Conventions.

The meeting was adjourned.

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