Ratification of ILO Conventions: Labour Inspection, Domestic Worker, Maritime Labour, Fishing Sector, and HIV & AIDS

1. Presentation by the Department of Labour to the Select Committee on Labour and Public Enterprises on Conventions proposed for Ratification 20 February 2013

2. ILO instruments to be presented Conventions: 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 Recommendation concerning HIV and AIDS and the World of Work (No 200)

3. General Considerations Conventions resultant of a “double” discussion at the ILO South Africa played a major role in the development of almost all the Conventions as well as the Recommendation on HIV and AIDS at the ILO The current state of ratification of these Conventions are: - Labour Inspection Convention - 143 countries - Maritime Labour Convention - 35 countries - Convention on work in the Fishing Sector- 2 countries - Domestic Worker Convention - 4 countries Conventions generally comes into force 12 months after ratification or a specified (in the Convention) number of countries. Countries who have ratified a convention would be required to submit a report to the ILO on its application after the first two years and thereafter regularly i.t.o. reporting responsibilities for ratified conventions.

4. LABOUR INSPECTION CONVENTION, 1947 (NO. 81)

5. ABOUT THE CONVENTION • The Convention on Work in the Fishing Sector contain provisions designed to ensure that workers in the fishing sector: • have improved occupational safety and health and medical care at sea, and that sick or injured fishers receive care ashore; • receive sufficient rest for their health and safety; • the protection of a work agreement; and, • the same social security protection as other workers.

6. ABOUT THE CONVENTION • The Labour Inspection Convention (No. 81) provides useful guidance for designing and monitoring an efficient labour inspection system. The primary functions of the system of labour inspection are: • To secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work. Provisions relating to hours, wages, safety, health and welfare, the employment of children and young persons, and other connected matters, in so far as such provisions are enforceable by labour inspectors. • To supply technical information and advice to employers and workers concerning the most effective means of complying with the legal provisions. • To bring to the attention of the competent authority defects or abuses not specifically covered by existing legal provisions.

7. GAP ANALYSIS ON LABOUR INSPECTION • During 2010, a gap analysis was carried out by the ILO on the law and practice in relation to the Labour Inspection Convention, 1947 (No. 81) and the Labour Inspection (Agriculture) Convention, 1969 (No. 129) based on a request by the Department of Labour. • According to the analysis undertaken, the law and practice in South Africa appear to be sufficiently developed to allow for the ratification of the Governance Conventions on labour inspection. The review of the implementation in law and practice could provide an example of best practices for the whole of the African region in terms of labour inspection.

8. THE SOUTH AFRICAN CONTEXT • In the South African context the labour inspectorate is entrusted with ensuring labour law compliance on a wide array of subjects, including the very important area of employment equity. Overall, the role performed by the labour inspectorate is very significant not just with regard to ensuring labour law compliance but more generally, upholding the rule of law and overcoming the vestige of past practices. • Furthermore the labour inspectorate is entrusted with additional duties related to protection of health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery, the protection of persons other than persons at work against hazards to health and safety arising out of or in connection with the activities of persons at work.

9. Coordination and Supervision The Labour Inspection Convention stipulates that the labour inspectorate should be well coordinated and be placed under the supervision and control of a central authority The Department on the 1 April 2011 established a unit that is dedicated to performing labour inspections To ensure that the country can deliver on the requirement of the labour inspection convention, the SA inspectorate is moving towards professionalization in order to recruit and retain suitably qualified personnel

10. THE SOUTH AFRICAN CONTEXT • In many countries, and in particular developing countries, labour inspectorates lack the resources for coping with the abovementioned tasks. Therefore national governments have the responsibility to introduce legislative policies that promote such conditions and to appoint labour inspection services that will supervise the proper application of such legislation and policies and to promote their compliance.

11. Domestic Workers Convention 2011, (No. 189) and its accompanying Domestic Workers Recommendation, 2011 (No 201)

12. INTRODUCTION • The adoption of the new standards is the result of a decision taken in March 2008, by the ILO Governing Body to place the elaboration of an instrument on the agenda of the Conference. In 2010, the Conference held its first discussion and decided to proceed with the drafting of a Convention supplemented by a Recommendation. • Government, Workers and Employers delegates at the 100th Session of the International Labour Conference on Thursday, 16 June 2011, adopted the Domestic Workers Convention 2011, (No. 189) and its accompanying Domestic Workers Recommendation, 2011 (No 201) • The Convention is an international treaty that is binding on Member States that ratify it, while the Recommendation provides more detailed guidance on how to apply the Convention.

13. ABOUT THE CONVENTION • The new ILO standards set out that domestic workers around the world who care for families and households, must have the same basic labour rights as those available to other workers: reasonable hours of work, weekly rest of at least 24 consecutive hours, a limit on in-kind payments, clear information on terms and conditions of employment, as well as respect for fundamental principles and rights at work including freedom of association and the right to collective bargaining.

14. ABOUT THE CONVENTION cont. • The Convention defines domestic work as work performed in or for a household or households. While the new instruments cover all domestic workers, they provide for special measures to protect those workers who, because of their young age or nationality or live-in status, may be exposed to additional risks relative to their peers, among others. • According to ILO proceedings, the new Convention will come into force after two countries have ratified it.

15. THE RECOMMENDATION • The Recommendation provides that: • domestic workers should enjoy freedom of association and the effective recognition of the right to collective bargaining • measures should be taken to eliminate discrimination in respect of employment and occupation. • the necessary steps should be taken to ensure that domestic workers understand their terms and conditions of employment

16. How would SA comply in current terms Convention SA Context Article 1: Defining a domestic worker Article 2: Application and possible exclusions Article 3:Fundamental principles and rights at work Article 4: Minimum Age Article 5:Decent working conditions Article 6:Particulars of employment Article 7:Migrant domestic workers Article 8: Effective protection extended Article 9: Accommodation Article 10: Arrangement of working time Article 11: Minimum wage coverage Article 12:Payment of wages • Aligned • Aligned • SA Ratified all core conventions • Aligned • Aligned • Aligned • Silent – need to do some work. Covered in Migration legislation • Enshrined in our Constitution!!!! • Aligned • Aligned • Aligned • Aligned

17. How would SA comply in current terms Convention SA Context Article 13: Social protection Article 14: Access to dispute resolution Article 15: Enforcement and compliance Article 16: Recruitment and placement Article 17: Development of laws • Domestic workers enjoy conditions that are not less favourable than those applicable to workers generally in respect of: (a) OHS (b) 4 months maternity leave (c) UIF protection • Access to CCMA and labour courts • Labour inspectors appointed i.t.o the BCEA • Amendments to BCEA and PES legislation • NEDLAC, CCMA process of social dialogue

18. THE MARITIME LABOUR CONVENTION, 2006

19. ABOUT THE CONVENTION • The decision by the ILO to create a Maritime Labour Convention (MLC) was the result of a joint resolution in 2001 by the international seafarers’ and ship owners’ organizations, also supported by governments. • They pointed out that the shipping industry is “the world’s first genuinely global industry” which “requires an international regulatory response of an appropriate kind – global standards applicable to the entire industry”.

20. ABOUT THE CONVENTION • The basic aims of the MLC, 2006 are: • to ensure comprehensive worldwide protection of the rights of seafarers (the Convention is sometimes called the seafarers‘ Bill of Rights); • to establish a level playing field for countries and ship owners committed to providing decent working and living conditions for seafarers, protecting them from unfair competition on the part of substandard ships.

21. ABOUT THE CONVENTION • The Convention sets out seafarers' rights to decent conditions of work on a wide range of subjects, and aims to be globally applicable, easily understandable, readily updatable and uniformly enforced. • It has been designed to become a global instrument known as the "fourth pillar" of the international regulatory regime for quality shipping, complementing the key Conventions of the International Maritime Organization (IMO).

22. WHAT ARE THE SUBJECTS OF THE “TITLES”? • The Regulations of the MLC, 2006 and the Standards (Part A) and Guidelines (Part B) in its Code are integrated and organized into general areas of concern under five Titles: • Title 1: Minimum requirements for seafarers to work on a ship • Title 2: Conditions of employment • Title 3: Accommodation, recreational facilities, food and catering • Title 4: Health protection, medical care, welfare and social security protection • Title 5: Compliance and enforcement

23. What measures must a country take to ensure that the MLC is properly applied? • MLC provides that implementation of the seafarers‘ employment and social rights under the Convention may be achieved through national laws or regulations, through applicable collective bargaining agreements or through other measures or in practice, unless the Convention specifies otherwise by, for example, requiring countries to adopt national laws and regulations to implement certain provisions of the Convention. • Each country is free to decide whether a particular MLC provision should be contained in a law or in a regulation or other subsidiary legislation, such as administrative orders or official marine notices. • Or where an MLC provision essentially relates to action to be taken by the governments themselves, through internal administrative instructions. Acountry might decide that no further legal measures need to be devised because, for example, a seafarer‘s rights under the MLC is already adequately covered by the general law applied by the national courts.

24. Does the MLC require countries to comply with the ILO’s “fundamental Conventions”? • The ILO's Governing Body has identified eight international labour Conventions as ―fundamental, covering subjects that are 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 are listed in the Preamble to the MLC. Countries that ratify the MLC are required, under Article III, to satisfy themselves that the provisions of their national legislation respect those fundamental rights, in the context of the MLC. Countries that have ratified the fundamental Conventions (as in the case of South Africa) are, of course, in any event obliged to report to the ILO on the measures that they have taken to give effect to their obligations under those Conventions in all the sectors of work, including the maritime sector

25. DEPARTMENTS OF LABOUR AND TRANSPORT • The Department of Transport and the Department of Labour, will establish a joint inter-disciplinary committee to be headed by the Department of Transport, which will advise on the implementation of the two instruments (Maritime Labour Convention and Work in the Fishing Sector Convention). Invitations would also be extended to the Maritime Industry to identify key members who would represent their interests.

26. Convention on Work in the Fishing Sector, 2007, (No 188)

27. ABOUT THE CONVENTION • Its provisions are aimed at ensuring that fishing vessels are constructed and maintained so that workers in the sector have living conditions on board that reflect the long periods they often spend at sea. • The Convention also puts in place a mechanism to ensure compliance with, and enforcement of its provisions by States and provides that large fishing vessels on extended voyages may be subject to inspections in foreign ports to ensure that the fishers on board do not work under conditions that are hazardous to their safety and health. This latter provision aims to help remove from the seas vessels with unacceptable working and living conditions, that operate to the detriment of responsible operators.

28. ABOUT THE CONVENTION • Recognizing that many countries might not initially have the institutions or infrastructure in place to immediately implement all of its provisions, the Convention provides an innovative legal mechanism that will allow States to progressively implement certain of its provisions. The aim is to encourage States to ratify at an early date and to put in place a plan aimed at eventually extending protection to all fishers. This flexible yet focused approach will stimulate consultations at the national level – in all countries – to review or establish national laws, regulations and other measures affecting fishers’ lives.

29. ILO REPORT ON WORK IN THE FISHING SECTOR • According to an ILO report on conditions of work in the fishing sector there are considerable differences in the sizes of fishing vessels and fishing operations in this global sector. This ranges from simple, small vessels that operate close to shore for limited periods to large vessels, exceeding 140 metres in length, that work far from land for months on end. • Many of those who make their living in this sector are paid, in whole or part, based on the share of the catch, the report says, adding that many are self-employed or considered self-employed under national legislation. • The report also says that fishing is well-documented as one of the most hazardous occupations. Hazards arise from the power of the sea, the nature of catching and processing fish, and from the sustained and often fatiguing effort necessary in the face of the unpredictability of finding and harvesting marine resources.

30. ILO REPORT ON WORK IN THE FISHING SECTOR • Fishing, whether industrial or small-scale, is facing the forces of globalization, the report says, adding that fish that were once locally consumed are now often being processed and shipped to restaurants and consumers half-way around the world. As a result, in some areas fishers have to go farther and farther away from the coast to reach marine resources. • These challenges make it increasingly important – for fishers, fishing vessel owners, related industries and consumers – to ensure that the fishing sector is subject to labour legislation that will protect fishers and will help make this essential profession attractive and sustainable, the report says.

31. CONSULTATION • The importance of consultation among governments and representatives of fishing vessel owners and fishers is a vital element of the Convention and is reflected throughout its provisions.

32. RECOMMENDATION CONCERNING HIV AND AIDS AND THE WORLD OF WORK, 2010 (NO. 200)

33. WHAT IS A RECOMMENDATION • A Convention is binding on member states and Recommendations are non-binding guidelines. • A Recommendation may however serve as a guideline to augment existing Conventions, e.g. Convention 111 on the Elimination of Unfair Discrimination, when implementing the ILO Recommendation on HIV.

34. ABOUT THE RECOMMENDATION • The Recommendation calls for action to be taken through the development, adoption and effective implementation of national tripartite workplace policies and programmes on HIV and AIDS, which can in turn inform national AIDS plans and strategies, and also be mainstreamed into other national sectoral strategies. • The Recommendation concerning HIV and AIDS and the World of Work, 2010 (No. 200) will ensure the effective implementation of national tripartite workplace policies and programmes on HIV and AIDS.

35. ABOUT THE RECOMMENDATION • The Recommendation affirms the need to continue and increase international cooperation in responding to the pandemic. Its successful implementation will depend upon securing the active engagement of the most representative employers’ and workers’ organizations, as well as increased cooperation and collaboration at national and international levels, including between and among ILO member States and their national AIDS authorities, intergovernmental organisations, organisations representing persons living with HIV and other relevant sectors, particularly the health sector.

36. LEGISLATION • The South African Constitution contains a Bill of Rights and all individuals have an inherent right to dignity and to not be discriminated against. The Bill of Rights does not mention HIV and Aids explicitly, but many of the rights may be relevant to HIV and AIDS, such as: • The right not be unfairly discriminated against. • The right to privacy. • The right to have access to health care services. • The law relating to HIV and AIDS therefore has an important role to play in the sphere of labour law. Specific labour legislation, such as the Employment Equity Act 55 of 1998, deals with this situation, giving explicit embodiment to the values in the Constitution. In terms of this Act, no employer may unfairly discriminate against anyone on the basis of HIV status. The constitutional protection of privacy has been concretised in legislation prohibiting pre-employment HIV testing.

37. CODE OF GOOD PRACTICE ON HIV AND AIDS AND THE WORLD OFWORK • As a buttress to the ILO Recommendation on HIV and AIDS and the World of Work the Department of Labour in consultation with its NEDLAC constituents finalised and approved the revised Code of Good Practice on HIV and AIDS and the World ofWork on 13 March 2012, and the Code was published on 15 June 2012. This has indeed been a well-consulted process which started during 2010. • The primary objective of this Code is to provide guidelines to assist employers, workers and their organisations to develop and implement comprehensive gender sensitive HIV and AIDS workplace policies and programmes.

38. CODE OF GOOD PRACTICE ON HIV AND AIDS AND THE WORLD OFWORK Cont. • These policies and programmes must be developed within the framework of decent work in the formal and informal sectors in both the public and private sectors to: • eliminate unfair discrimination and stigma in the workplace based on real or perceived HIV status, including dealing with HIV testing, confidentiality and disclosure; • promote access to education, equitable employee benefits and employment protection; • manage grievance procedures in relation to HIV and AIDS; • create a safe and healthy working environment; • promote appropriate and effective ways of managing HIV and AIDS in the workplace; and • give effect to the international and regional obligations of the Republic on HIV and AIDS and TB in the world of work.

39. TECHNICAL ASSISTANCE GUIDELINES • In order to give effect to the HIV and AIDS Code, the HIV and AIDS Technical Assistance Guidelines (TAG) have been revised to realise the following objectives: • Guide employers, workers and their organisations to implement the Code; • Provide practical information on the implementation of HIV and TB co-infection workplace policies and programmes; and • Provide examples of good practices on how to respond to the impact of HIV, AIDS and TB in the workplace. • The HIV and AIDS Code and TAG will be popularised through the Departmental annual Employment Equity road shows that will be held towards the end of August 2013, and the first half of September 2013. In addition, targeted awareness programmes will also be pursued with social partners, particularly with Business and Labour.

40. Presentation by the Department of Labour to the Select Committee on Labour and Public Enterprises END