INTERNATIONALLY-RECOGNISED CORE LABOUR STANDARDS IN THE FIVE COUNTRIES OF THE SOUTHERN AFRICAN CUSTOMS UNION

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1 INTERNATIONAL CONFEDERATION OF FREE TRADE UNIONS (ICFTU) INTERNATIONALLY-RECOGNISED CORE LABOUR STANDARDS IN THE FIVE COUNTRIES OF THE SOUTHERN AFRICAN CUSTOMS UNION REPORT FOR THE WTO GENERAL COUNCIL REVIEW OF TRADE POLICIES OF FIVE COUNTRIES OF THE SOUTHERN AFRICAN CUSTOMS UNION (Geneva, 23 and 25 April 2003) EXECUTIVE SUMMARY Excepting Namibia, which has not ratified one of the conventions regarding discrimination, all the five countries of the Southern Africa Customs Union (SACU) have ratified every core ILO labour convention. In view of restrictions on the trade union rights of workers (especially in Lesotho and Swaziland) and problems with discrimination and child labour, determined measures are needed to comply with the commitments the SACU countries accepted at Singapore, Geneva, and Doha in the WTO Ministerial Declarations over , and in the ILO Declaration on Fundamental Principles and Rights at Work adopted in June In all Southern African Customs Union (SACU) member states, law and practice in certain areas require significant government efforts in order to respect the commitments to fundamental workers rights they supported in the Singapore WTO Ministerial Declaration. In some of the SACU countries, violations of core labour standards are serious and are an important part of their governments international trade and investment strategies. Although all SACU member states have ratified both the main ILO Conventions on trade union rights, Conventions No. 87 and No. 98, there remain serious violations of freedom of association and the right to collective bargaining in most SACU countries. In Swaziland, those violations are so serious and widespread that they have a negative impact on wages and working conditions in every sector, including the traded sector. In Lesotho civil servants are prohibited from joining trade unions. Also in Lesotho, and to a lesser extent Namibia, certain violations of workers rights continue to take place because of the existence of export processing zones (EPZs) and demonstrate a clearly negative influence of international trade and investment on respect for workers rights, which has a major impact in turn on the prices of exports from the EPZ sector. Only Namibia has ratified just one of the two ILO core labour standards addressing discrimination, and the other four countries have ratified both standards. However, in all the member states of the SACU, discrimination with regard to gender remains pronounced in the labour market. Gender discrimination results in lower costs in export sectors where women s employment is concentrated, notably in Lesotho. In South Africa and Namibia, there persists serious discrimination on the basis of race stemming from the apartheid legacy, which has yet to be adequately tackled. All SACU member states have ratified both the two core ILO Conventions on child labour. However, there remains substantial economic exploitation of child labour in most, if not all countries of the SACU agreement, mainly in the informal economy and in agriculture.

2 - 2 - Child labour is used in some export sectors, such as textiles in Lesotho and plantations in Namibia and South Africa, and results in lower costs in those sectors. All five SACU member states have ratified both the ILO core labour standards on forced labour. The conventions on forced labour appear to be generally respected with the exception of Swaziland, and with this exception, forced labour does not exist on a large scale in SACU countries. Introduction This report on the respect of internationally recognised core labour standards in the five countries of the SACU is one of the series the ICFTU is producing in accordance with the Ministerial Declaration adopted at the first Ministerial Conference of the World Trade Organisation (WTO) (Singapore, 9-13 December 1996) in which the Ministers stated: We renew our commitment to the observance of internationally recognised core labour standards. The fourth WTO Ministerial Conference (Doha, 9-14 November 2001) reaffirmed this commitment. These standards were further upheld in the International Labour Organisation (ILO) Declaration on Fundamental Principles and Rights at Work adopted by the 174 member countries of the ILO at the International Labour Conference in June The ICFTU has affiliates in four of the five SACU countries (the exception being Lesotho), with a combined membership of over 3 million workers. For a list of the major trade unions in the SACU countries, please see annex 1.

3 - 3 - INTERNATIONALLY-RECOGNIZED CORE LABOUR STANDARDS IN THE FIVE COUNTRIES OF THE SOUTHERN AFRICAN CUSTOMS UNION I. Freedom of Association and the Right to Collective Bargaining The ratifications by SACU member states of ILO Convention No. 87 (1948), Freedom of Association and Protection of the Right to Organise, and ILO Convention No. 98 (1949), the Right to Organise and Collective Bargaining, are as follows: No. 87 No. 98 Botswana Lesotho Namibia South Africa Swaziland Botswana New Bills are being discussed in Parliament that should bring Botswana s legislation into line with the ILO Conventions. The Employment (Amendment) Bill, the Trade Unions and Employers Organisations (Amendment) Bill, and the Trade Disputes Bill will, among other things, permit freedom of association in the public sector and in agricultural or domestic work, which has hitherto been prohibited. Public servants and teachers currently cannot form or join trade unions, although they can belong to associations with restricted bargaining rights, which cannot negotiate on wages. Under the new Bills, numerous membership and funding restrictions will also be lifted, and institutions such as a trade disputes panel and a Labour Advisory Board, will be formed. Botswana has no full-time trade union officials because the law states that elected trade union officials have to work full-time in the industry or sector the union represents. This is a serious restriction of the capacity of trade unions, and there are no indications that the government is remedying this practice in its new bills. The law severely restricts the right to strike and in fact there has never been a legal strike in Botswana because of the complex and lengthy pre-strike procedures unions have to follow. Only unions that have organised 25 percent of a work force can engage in collective bargaining, which in reality means that only a few unions, such as the mineworkers unions can do so. The law allows the Labour Commissioner to attend union meetings. In 2000, the authorities exploited strike legislation in order to order striking employees of the Botswana Marketing Board back to work. In 2001, the Botswana Telecommunications Corporation suspended 7 trade union leaders. There had been no dispute, instead the suspension appeared to be an attempt to dissolve the union. Botswana has one export processing zone, in the town of Selebi-Phikwe. This is subject to the same labour laws as the rest of the country. Lesotho In law, workers have the right to join trade unions and unions have the right to organise and bargain collectively, but in practice the authorities often restrict these rights. Employers generally set wage rates through unilateral action. Workers are often threatened

4 - 4 - with expulsion and loss of employment once they join unions, particularly in the textile sector. Union activists are frequently sacked and put on blacklists so that they are not re-employed elsewhere. The Labour Ministry has proved either unwilling or unable to enforce the law. There is a large backlog of industrial dispute cases submitted to the Labour Court, which has only one judge who is only now dealing with cases filed in The right to strike is effectively prohibited, as the lengthy and cumbersome procedures which have to be followed before a strike can take place mean that there have been no legal strikes since independence in Workers are often sacked for going on strike despite protection against this in the law. Security forces have brutally suppressed strikes in the textile, garment, and construction industries in recent years, with much loss of life. In several incidents from the mid 1990 s, police shot and killed striking workers. There are several industrial zones, in which mostly textile and apparel firms engage in manufacturing for export. Indeed, virtually all goods manufactured in Lesotho are exported. 70% of employment in the zones is in the textiles, garment and leather sector. Lesotho's labour law is supposed to apply in the country's industrial zones but police stations at the entrance to the zones stop union organisers getting in. Much of the investment is undertaken by investors based in South Africa, followed by Taiwan and Hong Kong. All the facts would indicate that this investment has taken place on the basis of a guarantee that the companies would be able to disregard labour legislation. Many companies pay below the minimum wage, and have very long working hours - often locking-in the workers until an order is finished - including holidays and weekends without overtime payments. They refuse sick-pay leave and engage in almost constant unfair dismissal practices. In many of the factories, deductions are made from wages for workers found talking, or using the toilet more than once a day. On several occasions police have addressed workers at factory floor level advising them to leave the union, or elect new leaders, or allow the police to form a union for them. In 1993, three companies in the textile sector which employed mainly young women dismissed their entire work forces, amounting to over 1500 workers, when workers there formed unions. Violations of both national and international labour rights have continued. At the textiles company Super Knitting in 2001, workers were dismissed and locked out of the premises after complaining of rights violations as listed above. Ignoring a decision of the High Court in the workers favour, management hired new workers and used police and security guards to lock out old workers. Sun Textiles has been one of the most prominent abusers of workers rights among textile factories in Lesotho s industrial zones. In 2001, 13 workers were dismissed for wearing union hats, and their names were also circulated to other factories, making them unable to find work. Management of Sun Textile had been refusing to recognise the union, and union activities in the workplace were prohibited. In early 2002, an in-plant strike by workers at Sun Textiles brought management to sign an agreement with the Lesotho Clothing and Allied Workers Union (LECAWU) with a view to improving working conditions on the plant. Management also pledged to sign a union recognition agreement as soon as the union demonstrated that it was supported by more than 50% of the workers. Although the union had signed up 80% of the workers at the time of writing, management continued to delay the signing of the recognition agreement. In an example of the importance of international pressure on brand name purchasers of textile materials from EPZ s, Sun Textiles along with Nien Hsing factories produced Cherokee brand jeans for the Canadian Hudson s Bay Company (HBC), which are sold at its Zellers stores across Canada. When confronted by a Canadian NGO, ETAG, with evidence of serious workers rights abuses at the factory plants, the HBC chose to leave Lesotho rather than working with its suppliers to improve conditions. In contrast, Gap, which also sources

5 - 5 - from the Nien Hsing factories, responded to NGO pressure by facilitating dialogue between union and management and convinced Nien Hsing to allow union representatives access to the factories, as required by the Lesotho Labour Code. As a result, LECAWU was able to sign up over 50% of the workers at both Nien Hsing factories, and a union recognition agreement was signed by management at the end of Civil servants are banned from forming or joining trade unions under a 1996 law contrary to Lesotho s 1993 constitution. Teachers are banned from striking under a 1995 law which categorised teaching as an essential service. In 2001, a bill was introduced to restrict the union rights of university employees, including to permit major changes to employee contacts without any consultation. Namibia Freedom of association and the right to collective bargaining are generally respected, apart from workers in services deemed to be essential and workers in export processing zones, who have no right to strike. This is clearly related to the government s intention to expand EPZs as rapidly as possible. This refusal of the right to strike remains despite a commitment by the tripartite labour committee to recommend to the Minister of Labour not to maintain this provision. Industrial relations difficulties continue in the farms and domestic services, and also in mining. Workers in a major supermarket chain were suspended without pay for refusing to work later shifts, after only being told about the shift changes after they had already turned up for work. 105 fellow workers were dismissed for demonstrating in support of their colleagues. In early 2002, the General Secretary of the Namibian Food and Allied Workers Union (NAFAU), Cuana Angula, who had joined a workers demonstration over wage increases at the entrance of the Windhoek Safari Hotel, was apprehended by members of the Police Special Field Force (SFF) who told him he was under arrest. The strikers attempted to set up a blockade at the entrance of the hotel to prevent the General Secretary being taken to the police station, which SFF members and private security guards physically dispersed. Also in 2002, the Ramatex textile factory denied the NAFAU the right to unionise workers. The union was denied the chance to meet with workers, despite a Ramatex press statement a week before in which the newly established Malaysian company said it was committed to freedom of association and to respecting Namibian laws and workplace regulations. Later in 2002, police fired teargas and rubber bullets to disperse an angry crowd of between 300 and 400 striking workers at the Skorpion Zinc mine outside Rosh Pinah. Fourteen strikers and two policemen were injured. The workers, employed by companies contracted to build a refinery at the new mine, were striking for better wages. They also wanted to express their dissatisfaction to the fact that higher-skilled South African workers allegedly received considerably higher pay than them. After the clashes, 3,000 of the 3,500 construction workers were dismissed. They were all later re-hired, but the strike leaders faced disciplinary charges. Three months later, workers were laid off immediately after South African workers were brought to the mine to do exactly the same jobs from which they were removed. Workers alleged they were being punished for taking part in the August strike, while management claimed that progress in the project required sophisticated skills and that many workers were being demobilised because their construction work has been completed.

6 - 6 - South Africa Freedom of association and the right to collective bargaining are protected by law, and generally respected in practice. In 2002 labour protections were strengthened by amendments to legislation. Trade unions participate in the National Economic Development and Labour Council (NEDLAC), a tripartite negotiating forum, on the formulation of economic, social, and labour policy. In firms with over 100 workers, trade unions can establish workplace forums to promote consultation on issues such as work organization, corporate downsizing and changes in production processes. There are however some serious problems with enforcement of the law, and anti-union attitudes of employers, particularly in the textile sector. The right to strike is protected, but the ability to exercise this right is severely limited by the fact that employers have the right to hire replacement workers, which weakens any strike. Also, while the law often requires consultation or negotiation with trade unions regarding layoffs, there have been increasing instances where employers are ignoring such provisions and unilaterally laying-off workers. The telecom utility, Eskom, has recently sought to unilaterally impose terms of a pay increase on staff, and refused to negotiate in good faith with the union. The company had earlier filed a lawsuit against the Telecommunications Workers Union of South Africa (CWU) for causing considerable damage to the company. Also, the Automobile Employers Association refused to bargain in good faith with the metal workers union in 2001, even when legal conciliation was undertaken. Instead, one of the largest automobile employers responded by threatening to withdraw from South Africa if the initial offer was not accepted. In certain industries there is overt anti-union discrimination. This is increasingly the case in the farm sector, such as when in late 2000, 17 workers were fired from a farm operated by the largest tomato producer in South Africa, ZZ2, because they had joined a trade union. Workers in the textile industry face anti-union discrimination to the extent that workers choose not to have the union support a grievance on their behalf, because it will invariably cost the workers their jobs. Many textile factories are owned by Taiwanese companies, and summarily fire any workers who join unions. Recently, textile factories employing a total of 8,000 workers threatened relocation to Lesotho after being ordered to pay minimum wages and eliminate unsafe conditions. The order to improve conditions was spurred by the death of two twins born to a female worker who was locked in her factory during a shift. Because of the lock-in, paramedics were unable to reach the twins in time to prevent their deaths. A number of the implicated factories have since made good their threats, and shifted their production to Lesotho in order to avoid improving working conditions. In the metal sector, there have also been serious violations of workers rights. Many metalworkers in the Northern and Eastern Cape are unaware of their union rights, or are intimidated into not having unions defend their rights for fear of dismissal. In 2001 there were only 5 inspectors for 300 factories, which made enforcement of legal provisions almost impossible. Swaziland

7 - 7 - Neither law nor practice in Swaziland has ever provided for observance of the core ILO conventions guaranteeing freedom of association. The 1996 Industrial Relations Act (IRA), rendering the right to strike virtually illegal, perpetuated many restrictions on trade union rights contained in the 1980 Industrial Relations Act. Under the IRA, an official of a trade union federation who calls a strike can be punished by a fine of 5,000 emalengeni (about US $1000) or a maximum of five years imprisonment, or both, and a subsequent five-year ban on holding trade union office. Equally severe penalties apply to organisations or office holders calling, organising, or giving financial support to strikes in services deemed to be essential, which covers electricity, water, fire fighting, health, sanitation, telephone, telegraph, and even broadcasting, as well as many civil service positions. The Minister of Labour has unilateral powers to amend the definition of essential services. The Attorney-General can apply for a declaratory order to suspend a strike and the Minister of Labour can apply for an order to ban a strike on the basis of the national interest, which is not defined. The IRA confines unions and employer organisations to single industries, and does not permit organization across economic and industrial sectors, contrary to ILO Convention 87. The IRA allows the Commissioner of Labour to suspend an organisation or federation. Trade union officials are banned from holding more than one official position in a union and from holding office in a political party. The IRA limits the roles of unions and federations to the offering of advice. Severe penalties including dissolution can be imposed on a union or federation which has in a court s opinion devoted more time and funds to public policy issues than occupational issues during the past year. The IRA has been criticised by employers organisations and trade unions alike for its heavy penalties and violations of ILO conventions. The 1973 Decree declaring a state of emergency that has remained in effect ever since, restricts the rights of organisations to hold meetings and demonstrations. Under the Public Order Act of 1963, police permission is needed for certain meetings and public gatherings. Police can attend union meetings. Police intimidation and violence against trade union demonstrations and strikes are ruthless. Since the 1994 launch by the Swaziland Federation of Trade Unions (SFTU) of the 27 Demands regarding human rights, workers rights and democracy, the government has stepped up harassment and victimisation of the SFTU, including the threat of army intervention and an attempt by government agents on 29 August 1995 to murder the SFTU General Secretary Jan Sithole. Despite the SFTU's attempts to engage the government in dialogue concerning democratisation and the Industrial Relations Act, all proposals to arrive at a peaceful resolution of these problems have been met by further reprisals, arrests and intimidation. In response to an SFTU stay-away in early 1997, the government embarked upon further intimidation, arrests, threats of life imprisonment and use of violence against trade union leaders. An ICFTU delegation visited Swaziland during the stay-away and met senior government ministers, including the Foreign Minister, to call for the release of the detained SFTU leaders, negotiations on the democratisation programme and revision of the labour legislation to bring it into line with international labour standards. However, the government ministers refused to consider discussing these issues with the SFTU. The SFTU leaders were acquitted due to lack of evidence. After a complaint to the ILO lodged by the ICFTU, and stringent criticism of the Swaziland authorities by the ILO, the government finally expressed its agreement to carry out reforms, assisted by an ILO advisor. This agreement proved to be meaningless, however, as repression of the SFTU only increased.

8 - 8 - A revised IRA was finally agreed in June 2000, although many restrictive measures were retained, and the SFTU and other members of the democracy movement protested. Civil servants were threatened with dismissal if they participated in this and other pro-democracy actions. Under threat of removal of the benefits of the US Generalised System of Preferences, a tripartite agreement was reached on further amendments at the end of However, the Government again refused to honour this agreement, and instead arrested key national trade union leaders, including Jan Sithole, in early At the 2002 International Labour Conference of the ILO, Princess Motsa, senator of Swaziland and government delegate to the ILO Conference, openly and publicly threatened Jan Sithole, the General Secretary of the SFTU. Amongst other things, she stated that, should Mr. Sithole continue being troublesome against the country and against the State, she would personally ensure that he would be made to suffer upon his return to Swaziland from the Conference. She added that he will be made to walk on bare feet, thereby implying that he might be forcibly impoverished or made destitute and also, by implication, that he might be imprisoned. Furthermore, the senator personally told Jan Sithole that, whatever he intended to say about the situation of his country at the International Labour Conference, he must think about his future and about his own children, if he spoke negatively about Swaziland. Conclusions Although the core ILO Conventions in these areas are universally ratified by SACU members, there are serious violations of freedom of association and the right to collective bargaining in several SACU member states, particularly Swaziland, Lesotho and Botswana. In Swaziland, those violations are so serious and so widespread that they certainly have a negative impact on wages and working conditions in every sector, including the export sector, and hence have an effect on the costs of exports. In Lesotho and, to a lesser extent, Namibia, the correlation between violations of workers rights and the existence of export processing zones (EPZs) demonstrates a clearly negative influence of international trade and investment on respect for workers rights, which has a major impact in turn on the prices of exports from the EPZ sector. These violations are having a major impact also on South Africa, where efforts to enforce workers rights are undermined by employers shifting production to other countries such as Lesotho, which does not enforce such provisions. II. Discrimination and Equal Remuneration The ratifications by SACU member states of ILO Convention No. 100 (1951), Equal Remuneration, and Convention No. 111 (1958), Discrimination (Employment and Occupation) are as follows: No. 100 No. 111 Botswana Lesotho Namibia South Africa Swaziland Botswana

9 - 9 - Women in Botswana do not have in practice the same rights as men, partly due to the continued use of traditional law alongside civil law. Also, governmental discrimination is prohibited by the constitution and by civil law, but discrimination by private individuals is not. Discrimination against women is most acute in rural areas where women work primarily in subsistence agriculture. Educated urban women have growing access to the white collar job market, but the number of opportunities decreases sharply as they rise in seniority. Women do not have a right to obtain access to bank loans on their own. Sexual harassment in the workplace is also a problem. The government adopted a National Policy on Women in July 1996, providing for national actions to achieve equality in a range of areas including poverty reduction, education and training and health. This policy has led to action plans being developed, to address several different elements of the situation of women. Illegal immigrants, primarily Zambians and Zimbabweans, are easily exploited as they would be subject to deportation if they filed grievances against employers. Employment opportunities for the disabled are limited. In February 1997, the parliament adopted a national policy providing for integrating the needs of disabled persons into government policy-making. Lesotho Discrimination on grounds of gender, race, religion, national origin and political opinion is prohibited. However, customary law operates as a parallel legal system, under which married women are considered to be minors, and unable into enter into legal contracts, including of employment, without the consent of their husband. As a result of the very high level of migrant labour from Lesotho to South Africa, requiring a large percentage of Lesotho men to spend large parts of their lives working on short contracts mainly in the mines of South Africa, women form the backbone of the rural economy and society. Despite this, the role of women is neither recognised nor rewarded. Discrimination against women in Lesotho persists in all sectors and is particularly obvious in the export processing zone factories, which employ a largely young female workforce (see section on Lesotho under Freedom of Association above). Discrimination against the physically disabled in employment, education, or provision of public or government services is against the law but is commonplace. Namibia Women in Namibia continue to face legal and cultural discrimination, partly due to traditional law. Most women have considerable domestic responsibilities and this negatively affects their opportunities for quality employment and training. Access to vocational training is unheard of for most women. The gender wage gap remains considerable, both because women workers are concentrated in lower grades and low-paid industries, and because women earn less than men do even working in the same industry. A significant number of women find employment in the informal economy. Sexual harassment by supervisors or managers is a serious problem. While the Constitution of Namibia specifically prohibits "the practice and ideology of apartheid", societal, racial, and ethnic discrimination persists as a result of more than 70 years of South African administration. Some apartheid-based statutes have not yet been repealed or replaced by the Parliament. White citizens earn significantly more on average

10 than do black citizens, in large part because whites own most of the country's productive resources and have had access to education. Whites have an average per capita income of $14,000 a year, in a country where many of the poorest blacks earn under $100 a year. Unemployment, which is nearly 40 percent, affects largely the black majority. Apartheid-era attitudes among some employers contributed to a divisive, 10-week strike in 1997 at a major mining firm. While the atmosphere at the three mine sites was tense and occasionally violent, the confrontation was eventually defused by high-level government intervention. As a result of minimal access to education and economic opportunities under colonial rule, ethnic groups such as the San Bushmen still face societal discrimination. Although the Labour Act of 1992 prohibits discrimination against disabled persons in employment, enforcement is weak. The Affirmative Action Bill currently being debated in the parliament is aimed at improving the employment opportunities for black people, women and people with disabilities. It would make it mandatory for every employer to develop and implement a three-year affirmative action plan and to file an affirmative action report with the Employment Equity Commission every year, which would then be open to public scrutiny. While there are legal provisions prohibiting discrimination in employment against homosexuals, and the Government has publicly stated that the Constitution does not permit discrimination on the basis of sexual orientation, there have been discriminatory public statements made by senior government figures concerning homosexuals. Following such comments, abuse by the security forces of suspected homosexuals increased. South Africa There is discrimination on grounds of, among others, race, gender, ethnic origin and disability. The Promotion of Equality and Prevention of Unfair Discrimination Act came into force in 2001 and includes employment discrimination provisions. Discrimination against women remains serious despite legal and constitutional advances and government attention. The Office on the Status of Women reported in 2000 that "although gender discrimination has been removed from labour laws, this has not been sufficient to achieve equality in women's participation in the paid labor force." Low pay is a major problem, with the expressed assumption by many employers that women are supported by a male partner and so do not need to earn the same levels of pay as men. There are few promotions or opportunities to retrain for promotions. In general the work women do is underpaid and under-valued, notwithstanding the fact that there are considerable legal prohibitions against this. Under traditional laws applicable in some areas, women are prevented from owning land and inheriting property. Figures from workplaces of more than 50 persons show that women occupy only thirteen percent of top management positions, twenty per cent of senior positions, and 43 per cent of middle level and professional positions. The last category includes nursing and teaching professions. These statistics show the under-representation of women in senior positions, and do not include the unregulated informal economy, in which women are overrepresented, apart from the transport sector. The 1996 Commission on Gender Equality Act established a government Commission to promote gender equality and to advise and make recommendations to Parliament on any legislation affecting women. Legislation has been introduced to protect persons who have insecure and informal rights and interests in land, a category which includes many women.

11 Some steps have been taken to achieve greater economic advancement for women, such as establishing an investment fund. Sexual harassment at the workplace is a serious problem, and particularly, sexual assault and sexual harassment of black female farm workers by farm owners, managers, and by other farm workers is a widespread occurrence. Female farm workers furthermore are often excluded from access to housing in their own right, and earn less than male farm workers for the same work (see above). The Constitution and Bill of Rights prohibit discrimination on the basis of race, ethnic or social origin and culture. However, the wage gap remaining from apartheid is characterised by a concentration of low wage, low skill employment amongst African and women workers at one end of the spectrum. At the other end of the spectrum are high paying managerial and executive positions monopolised by white men. The COSATU research institute NALEDI has estimated a manager's salary as being times higher than that of a worker. Within these extremes, even the gradations between unskilled, semi-skilled and artisans; blue and white collar; and production and technical/professional staff, reflect disparities in incomes which are huge by international standards. This is the legacy of repressive policies applied to black workers and their denial of formal skills/education. On the other side the policy of job reservation and the monopoly of skills and education by the minority enabled them to institutionalise rewards and perks. As a result a disproportionate share - about 60% - of the national wage and salary bill goes to salaried staff, i.e. white collar and above. It is widely recognised in South Africa that the huge disparities in income are directly a result of apartheid and without parallel on a world scale. The Government has begun reorganising and redesigning the educational, housing, and health care systems to benefit all racial and ethnic groups in society more equally. The Government has instituted an affirmative action programme and according to a 1996 Department of Labour survey, 82 percent of private sector firms have instituted affirmative action programmes. The law requires large employers to devise an employment equity programme, however the practical results have been very limited. The largest South African trade union centre COSATU expressed reservations regarding the legislation mandating the racial equity plans, arguing that the Bill relied too heavily on the goodwill of employers to implement its measures and that there was no effective mechanism to compel negotiation with workers and to ensure that employers address the current diversion of resources to the upper strata. Department of Labour statistics from 2000 showed that black workers accounted for thirteen per cent of senior management positions, and 98 per cent of unskilled positions. Although the Constitution prohibits discrimination on the basis of disability, in practice government and private sector discrimination in employment against the disabled still exists. The law requires that employers with more than 50 employees devise an employment equity plan for disabled persons, but this has not had much success in practice. The Public Service Commission reported in 2001 that disabled persons represented only.02 per cent of public employees. Swaziland The Employment Act of 1980 forbids employers to discriminate on the basis of race, religion, sex, or political affiliation. However, there is no record of any prosecutions, although there is anecdotal evidence of moral suasion being brought to bear. Despite law requiring equal pay for equal work, men's average wage rates by skill category usually exceed those of women. The Legal Code of Swaziland addresses legal protection from sexual harassment, but its provisions are vague and largely ineffective.

12 The government has committed itself to various women's initiatives following the 1995 Beijing Conference on Women and has set up a task force to address gender issues. There are cases of discrimination against mixed-race citizens. There are no laws mandating accessibility to buildings, transportation, or government services for the disabled, although the government is presently drafting a "disabled bill" for discussion. Conclusions In all the member states of the SACU, discrimination with regard to gender remains pronounced in the labour market. The continuing pay and employment differentials between men and women indicate that elimination of the various forms of discrimination requires action in both the legislative and political spheres. Gender discrimination results in lower costs in formal export sectors, such as the garment industry, where women s employment is concentrated, notably in Lesotho. In South Africa and Namibia, there further persists serious discrimination on the basis of race stemming from the apartheid legacy, which has yet to be adequately tackled. III. Child Labour The ratifications by SACU member states of ILO Convention No. 138 (1973), Minimum Age, and No. 182 (1999), the Worst Forms of Child Labour Convention are as follows: No. 138 No. 182 Botswana Lesotho Namibia South Africa Swaziland Botswana Botswana s legislation prohibits employment in any industry for children under 15 years old. No person under 16 years old is allowed to perform hazardous labour, including mining. Immediate family members may, however, employ children 13 years or younger. Because research on the issue of child labour is limited, it is difficult to state whether the child labour laws are effectively enforced. However, although education is not compulsory, the Government provides 7 years of free primary education to every child and there is a high level of primary and junior school attendance, suggesting that child labour is a limited problem in Botswana. However cattle herders in the Kalahari are predominantly young boys, among whom education is not common. Lesotho The legal minimum age for employment in commercial or industrial enterprises is 15, but enforcement is very lax, and child labour laws do not extend to the agricultural sector, which is where much of the child labour problem exists. The Ministry of Labour and Employment's Inspectorate is severely understaffed. In practice, children under 14, and as young as four or five, are employed, in agriculture, domestic service, family-owned businesses,

13 and urban informal activities, such as car washing and street vending. There continue to be reports of considerable child prostitution. Also, reports from the mid 1990 s suggested that there was considerable child labour in the textile sector, although these reports have not been recently confirmed. Education is not compulsory even for the primary levels. There are significant instances, particularly in rural areas, where children do not attend school because they are involved in subsistence activities in support of their family's welfare, such as the traditional practice of small boys working as herdsmen. In Lesotho, unlike many other African countries, girls are more often educated than boys, because the boys are used as herdsmen and later on go to South Africa and work in the mines. Some families cannot afford the costs associated with school attendance (for example, fees for purchase of uniforms, books and materials). In conclusion, child labour is a serious problem throughout the economy of Lesotho and especially in the rural sector. Namibia Under the 1992 Labour Act, the minimum age for employment is 14 years, with higher age requirements for certain sectors such as mining, construction and night work. Ministry of Labour inspectors generally enforce minimum age regulations in the formal economy, but children below the age of 14 often work on family and commercial farms, to which inspectors have reportedly had very limited access, and in the informal economy. Recent statistics suggest that more than 90 per cent of child labour takes place in rural areas, on family and commercial farms, some of this as unpaid labourers on commercial farms. There are also reports that Angolan and Zambian children, who are not protected by the Labour Act, work on communal and cattle farms in border areas, although this has decreased after government deportations of illegal immigrants. South Africa Employment of children under the age of 15 is prohibited by law. However, child labour is widespread, particularly in rural and informal urban activities. Some children are engaged in more formal enterprises, the majority of these being found in commercial agriculture, including a significant number of children under 10. The legal prohibition on employment of children under 15 was extended to agriculture only in 1992 and during the course of 2001, there were no prosecutions for contravention. Many farm workers' children are forced, either by poverty of their parents, by the lack of educational facilities or by threats of dismissal of their parents, into work, continuing a vicious cycle of illiteracy and poverty. Child labour in the informal economy is nearly impossible to quantify, since the Government has yet to identify the size of the informal economy's contribution to employment and the economy in general. Some surveys suggest that up to a quarter of children between the ages of 5 and 17 are engaged in work of some degree, and slightly less than 10 percent are working in urban informal activities. Cases of child labour in sweat shops have been reported in Cape Town. Child prostitution is on the rise, primarily in Cape Town, Durban, and Johannesburg. Swaziland The Employment Act of 1980 prohibits the hiring of a child below the age of 15 in an industrial undertaking. However, this does not apply in enterprises where only family members are employed in the firm. Legislation limits the number of night hours that can be worked by children on schooldays and limits children's work hours overall to 6 hours per day or 33 per week.

14 There would not appear to be large-scale employment of children in the formal economy. However, children below the minimum age are frequently employed in the agricultural sector, particularly in the eastern cotton-growing region. Children are also employed as domestic workers. The Ministry of Labour is responsible for enforcement, but its effectiveness is limited by personnel shortages. The Government does not provide free, compulsory education for children and parents must pay school fees and sometimes raise money for building upkeep, including teachers' housing. Child labour is consequently a serious problem in Swaziland, particularly in certain sectors. Conclusions There is substantial economic exploitation of child labour in most, if not all countries of the SACU agreement, mainly in the informal economy and in agriculture. However child labour is also used in some industrial sectors, such as textiles in Lesotho, and results in lower costs in those sectors. Much, if not most of SACU child labour has not yet been documented properly. Many children are forced into work, continuing a vicious cycle of illiteracy and poverty. Their own children will, most likely, face the same fate, unless government policies to combat child labour are made effective and scrupulously enforced and obeyed. There is a compelling need for further research in this area, as well as a strengthened political commitment to eradicating child labour. IV. Forced Labour The ratifications by SACU member states of ILO Convention No. 29 (1930), the Forced Labour Convention, and ILO Convention No. 105 (1957), Abolition of Forced Labour are as follows: No. 29 No. 105 Botswana Lesotho Namibia South Africa Swaziland Botswana A constitutional provision prohibiting forced or bonded labour applies to all citizens and there have been no reports of forced or bonded labour. Lesotho The 1987 Employment Act prohibits forced or compulsory labour and there are no reports that it occurs. Namibia Forced and bonded labour of adults and children is prohibited by law. However, some media reports of the treatment of farm and domestic workers indicate that they often receive inadequate compensation for their labour and are subject to strict control by employers, under circumstances which could amount to forced labour. This has been hard to verify because

15 Ministry of Labour inspectors often encounter problems in gaining access to the country's large, privately owned commercial farms in order to document possible violations in this area. South Africa Forced labour of either adults or children is illegal under the Constitution and there are no reports that it is practised, although as in Namibia, Ministry of Labour inspectors face difficulties in access to the agricultural estates where there could be violations in this area. There are reports of the trafficking of children for the purposes of prostitution, and also of conditions tantamount to bondage, under which some children work. Swaziland The law prohibits forced labour, including child labour. However, the ILO Committee of Experts on the Application of Conventions and Recommendations has criticised the transfer of unemployed persons from towns to compulsory agricultural work as well as road building and maintenance, and there are problems regarding the rights of traditional rulers to free labour of their subjects. Conclusions The ILO conventions on forced labour appear to be generally respected with the exception of Swaziland, to a certain extent, Namibia. There are also indications of problems with the trafficking of persons, including for the purposes of prostitution in South Africa. Forced labour does not exist on a large scale in SACU countries and so is unlikely to affect export costs. V. Core Labour Standards in External Trade Policies The Trade, Development and Cooperation between the European Union and South Africa contains various clauses concerning respect for the fundamental rights of workers, with reference to respect of all the ILO core labour standards. CONCLUSIONS Serious violations of core labour standards are taking place in certain countries of the Southern African Customs Union, despite the commitments to fundamental workers rights supported by the SACU countries in the Singapore, Geneva and Doha WTO Ministerial Declarations over Such violations are particularly egregious in Lesotho and Swaziland, where they have a major impact on the costs of those countries exports. All the SACU member states except Namibia have ratified all the core ILO conventions, with many ratifications over the last few years. Such actions are commendable and must now be matched by actions to implement the substance of the conventions. Namibia must without further delay ratify Convention No. 100 on equal remuneration. In priority, actions are needed in Botswana, Lesotho and Swaziland to implement the substance of Conventions 87 and 98 and respect trade union rights. All SACU countries need

16 to undertake legislative changes and action programmes to address serious discrimination against women and, in Namibia and South Africa, on the basis of race. All SACU countries still have problems with child labour and need to undertake a programme of measures including legislative changes, improved enforcement and increased provision of education in order to end child labour. Swaziland must end its use of forced labour. In Botswana, Namibia and South Africa, there are legislative frameworks in place, and work needs to be done on ensuring that these rules are applied across the respective countries. In Namibia and South Africa, particular attention should be given to migrant workers from neighbouring countries, and in South Africa more attention needs to be paid to the violations of fundamental rights in privately owned factories, before these violations lead to further tragedies. In Lesotho trade union freedoms should be extended to civil servants, and in Swaziland, reform of labour legislation such as that governing the excessive list of essential services, while important, will not have much appreciable effect unless the democratic space is created for independent trade unions to carry out their activities freely. Consistent with the commitments accepted by the Southern African Customs Union countries at the Singapore, Geneva and Doha WTO Ministerial Conferences and the obligations of SACU countries as members of the ILO, the SACU member states should therefore report to the ILO and the WTO on their intentions and programmes in order to bring their labour laws and practice into conformity with internationally recognized core labour standards. The WTO should request the ILO to intensify its work with the member governments of the Southern African Customs Union in these areas and receive a report to the WTO General Council on progress made to achieve the respect of core labour standards. References Bosch, D. and Gordan, A., Child labour in commercial agriculture in South Africa, Botswana Federation of Trade Unions (BFTU), Brief Report on the Situation of Women, Congress of South African Trade Unions (COSATU), Employment Equity Bill - Basic thrust of Labour's position, ICFTU, Annual Survey of Violations of Trade Union Rights, editions from and 2003 (forthcoming). ICFTU African Regional Organisation (ICFTU/AFRO), Export Processing Zones in Africa, report by Mohamed Mwamadzingo, International Labour Organisation (ILO), Labour Standards in Export Processing Zones: A Southern African Perspective, ILO, Lists of Ratifications by Convention and by country. ILO, Reports of the Committee of Experts on the Application of Conventions and Recommendations, recent years. ILO, Reports of the Committee on Freedom of Association, recent years. The Namibian, various articles. National Council of Trade Unions (NACTU), Improving Women s Participation, 1992.