COMMISSION ON GENDER EQUALITY
Submission to the Portfolio Committee on Labour Re: Unemployment Insurance Bill [B3-2001]
The Commission on Gender Equality is an independent, statutory body established in terms of Section 187 of the Constitution of South Africa, Act 108 of 1996.
The role of the CGE is to promote respect for gender equality and the protection, development and attainment of gender equality. The powers and functions of the CGE are detailed in the Commission on Gender Equality ACT 39 of 1996. In terms of Section 11(1), the CGE must inter-alia evaluate any law proposed by Parliament, affecting or likely to affect gender equality or the status of women, and make recommendations to Parliament with regards thereto.
The Commission welcomes this opportunity to make a submission to this portfolio Committee and trusts that the recommendations made here will receive your due regard.
In commenting on the Bill before us, the essence of our submission today will be to demonstrate the intersection of gender with poverty and unemployment. We will show how poverty and economic dependence of women leads to extreme levels of gender discrimination often manifested through gender based violence.
It is our submission that Unemployment insurance is crucial to the lives of working women and that the exclusion of any groups of women from UIF benefits amounts to unfair discrimination and a consequent violation of their Constitutional rights.
We are further of the opinion that the State, in accordance with its duty to provide adequate social security, has a duty to contribute towards the Unemployment Insurance Fund.
Finally we will draw attention to the need to extend maternity benefits to bring South Africa in line with international standards.
Poverty in South Africa has a pronounced gender dimension. Sixty percent (60%) of households headed by women are poor compared with 31% of male-headed households. Based on household expenditure, female-headed households are on average poorer than male-headed households in all the provinces. Rural households are twice as likely to be poor as households in non-rural areas.
South Africa has considerable income and human development inequality along gender and racial lines. The poorest 40% of the population remain overwhelming female, African and rural. With high levels of unemployment, insecure land rights, and often dependence on men, women are particularly vulnerable to poverty.
There are many reasons for the high level of poverty among women in South Africa. They earn lower wages per hour, have less educational attainment and are more likely to be unemployed when compared to their male counterparts. Table 1 documents the relationship between unemployment; relatively low levels of educational attainment and hourly wages for all race groups for both men and women.
The situation for white males closely resembles that of industrialised countries; Africans and coloureds have higher rates of unemployment, lower wages and lower levels of educational attainment – a situation comparable to circumstances in most countries in sub-Saharan Africa. In all race groups females have lower hourly wage earnings, lower levels of education and higher rates of unemployment. One reason for the lower earnings of women is that most women spend more time in domestic activities for which there is no formal wage compensation. For example: It is estimated that 60% of productive activities by women in Kenya are not captured by the government statistics, compared to 24% of those by males.
Table 1: Correlation between educational attainment, hourly wages and levels of unemployment
Table 1 shows a definite correlation between educational attainment levels, hourly wages and unemployment.
Low educational attainment levels accompany high levels of unemployment and low hourly wages and vice versa. The high incidence of unemployment and poverty among females can partly be explained by the fact that they generally have lower levels of educational attainment.
The relation between poverty and the prevalence rates of gender-based violence is evidenced in the economic dependency of women on men. One manifestation of the intersection of poverty and gender lies in the prevalence of gender based violence.
Studies reveal three main themes showing the interaction of female economic dependence and gender based violence.
This is the case whether women report sexual crimes perpetrated against their person, when pursuing maintenance support from spouses or other financial support.
A complaint investigated by this Commission depicts how a woman who applied for her husband to comply with a divorce decree allowing her half of his pension/ annuity was without resources to pursue the case and found herself without legal representation.
Dawood et al (1999) report a case where a women pursued an interdict against her husband. He violated the interdict. He was arrested and they appeared in court. He was given a one year suspended sentence and told not to hit his wife again. She says: "But after that, he is still beating me. I can’t leave him because I have children to look after and he brings in the money".
Molo Songololo (2000) report several cases of young girls being held captive for purposes of sexual exploitation and child prostitution.
The lack of economic options available to women is clearly a factor in promoting sexual survival strategies, which carry a high risk of HIV/AIDS infection. This is particularly the case in urban areas. Budlender finds that in KwaZulu between 1990 and 1992, HIV infection rates were 3.2 times higher among women than men.
A survey in 1994 in rural KwaZulu Natal found HIV infection rates of 13.4 % among women compared to 5.8% among men. Further, they document that women tend to become infected at an earlier age than men. Women’s economic dependence coupled with social patriarchy leaves women with minimal negotiating power when determining their sexual activity.
The high levels of poverty, unemployment and gender based violence as a result of female dependence on male incomes nationally highlight the need for social assistance to poor communities. "Yet an analysis of the current social security system reveals a glaring gap in social assistance to the poorest and most vulnerable sectors of society. The system provides only for poor families with children under the age of seven and adults over the age of sixty (females) and sixty five (males)." Since social security assistance represents government’s primary investment in poverty reduction, the lack of assistance to poor households means that no direct provision is made for addressing poverty directly.
According to the International Labour Organisation, unemployment benefits are designed "to provide income security during unemployment—on the straightforward argument that if, through no fault of his [or more frequently in South Africa’s case, her] own, a person is deprived of an income consisting of his [or her] earnings from employment, he [or she] has a right to expect income support at least for necessities of life, while he [or she] remains available for work."
The current unemployment insurance fund (UIF) covers a small fraction of the unemployed. In particular, the UIF excludes domestic workers, casual workers, and others in the informal sector. Most jobless women receive no benefit from existing schemes that aim to protect the unemployed.
Unemployment insurance functions as a form of social security in instances of extreme poverty and severe unemployment. Section 27 of the Constitution provides that "everyone has the right to have access to social security...". Providing this security for other workers to the exclusion of domestic workers implies a denial of their right to a crucial form of social security.
The UIF is currently funded through employer and employee contributions and serves as a form of social insurance. It includes unemployment, sickness, maternity, adoption and dependant’s benefits. These benefits may be considered to be social security.
4.1 Socio-economic implications
The real contribution made by the women through domestic labour of childcare and housekeeping are rarely considered elements of the national economy. Yet reports have shown that national economies are intrinsically dependent on unpaid domestic labour of women. This division between work done in the public realm and work done within the private realm of our homes, with the consequent de-valuing of the latter is a patriarchal one. It devalues both the work done within the homes as well as the people who do that work – be they family members, partners, mothers or salaried domestic workers.
The Bill’s exclusion of domestic workers is another example of the ease with which society is able to disregard and marginalize work done in the private realm. The argument that inclusion of Domestic Workers would be administratively complex is another example of the patriarchy in action. If it is indeed possible to administer a nation of millions, surely it is possible to put funds and effort into ensuring that a small segment of the workers of that nation have access to their constitutional rights.
The 1993 Limbrick report on the investigation of the extension of the UIF Act to domestic workers proposed mechanisms for managing the administrative complexities of providing Unemployment Insurance benefits for domestic workers.
Subsequently, a 1996 Task Team report confirmed and re-enforced these recommendations. It remains a mystery to us as to why the State now finds it unable to enact these recommendations.
4.2 Legal implications
South Africa has signed a number of international instruments which prohibits the discrimination of women based on the types of work they engage in.
Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to which South Africa is a signatory states:
"States Parties shall take all appropriate measures to eliminate
discrimination against women in the field of employment, in particular,
the right to social security, particularly in cases of ...unemployment,
sickness, invalidity, old age and any other incapacity to work" (Article
Article 5 of the Convention on the Elimination of all Forms of Racial Discrimination (CEFRD) protects the equal enjoyment of rights including the right to social security without discrimination on the ground of race.
The ILO Discrimination (Employment and Occupation) Convention 1958 requires members to pursue a national policy designed to promote equality of opportunity in the workplace and to eliminate any discrimination in respect thereof.
The Bill provides that the Minister must designate or appoint a body that must seek to investigate and make recommendations regarding the inclusion of domestic and seasonal workers under the Application of the Act. (S3(2)(a). The investigation must be concluded within 18 months from the date the section takes effect. (S3(1)(2)(b).
The Bill does therefore not contain a commitment that domestic and seasonal workers will definitely be brought within the scope of the Act. It would be possible within the current wording of the provisions for the body appointed by the Minister to conclude and recommend that such workers should not be included in the Act.
A high percentage of female workers are domestic and seasonal workers. Black women comprise approximately 89% of all domestic workers.
Domestic workers currently do not have access to state social insurance and constitute a vulnerable group of workers.
The exclusion of domestic workers from the application of the Bill:
The provisions in the Bill providing that the Minister must investigate and make recommendations regarding the inclusion of domestic and seasonal workers may
In the leading socio-economic rights case to date, the Constitutional Court held, in relation to a right that imposes similar positive obligations as the right to have access to social security that the key aspect is whether the legislative and other measures taken by the state are reasonable. In assessing the reasonableness of the measures or programmes taken by the state the court indicated that considerations would include:
In assessing whether the legislative measures contained in the UIF Bill are reasonable and whether all the necessary steps have been taken to protect, promote, fulfil and respect the rights outlined above, relevant considerations include:
The exclusion of domestic workers from the ambit of the Bill may infringe a number of constitutionally protected rights and may not be justifiable. At the very least the Bill should contain a clear commitment that the Act will apply to domestic workers within a specified time-frame that does not constitute an unreasonable delay in realization of the rights of equality and access to social security for domestic workers.
Recommendation: Immediate inclusion of domestic and seasonal workers, as well as the introduction of an interim mechanism for processing these workers claims while final administrative mechanisms are determined over a period not exceeding 12 months after the promulgation of this legislation.
5.1 International Practice
"According to an ILO Report Maternity Protection at Work (1997), more than 120 countries around the world provide paid maternity leave and health benefits by law. The countries that provide the most paid leave by law include: the Czech Republic – 28 weeks at full pay; Hungary and Bulgaria – 24 weeks at full pay; Italy – 5 months; Canada – 17 weeks; Spain and Romania – 16 weeks each. Denmark, Norway and Sweden all provide extensive paid leave that can be taken by either parent, although a portion is reserved for the mother."
"According to a World Bank study (cited in Budlender, 1996:3) the maternity provisions in six Latin American countries are at a higher level than the provisions available for South African women. In fact, all six countries provide full pay through a combination of social insurance and employer contributions, except in Chile, where the benefits are funded by the state and are non-contributory. The duration of benefits are as follows: Brazil – 17 weeks; Chile – 18 weeks; Colombia – 12 weeks; Costa Rica – 16 weeks; Honduras – 18 weeks; Venezuela – 18 weeks. With respect to nursing breaks, all the countries except Colombia provide at least the required 60 minutes paid breaks, some extending this beyond six months. Colombia provides one 30-minute paid break daily."
Neither does South Africa not compare favourably with its regional neighbours. One commentator observes:
South Africa is eager to take its place alongside other countries in respect of human rights, including worker rights and women’s rights. Even given the constraints, one must mote that other countries at similar or lower levels of development provide better benefits than those available to South African workers. For example Madonsela notes that our neighbours Botswana, Lesotho and Swaziland provide three months full paid maternity leave, two half-hour nursing breaks for mothers, and ante-natal and post-natal leave. (Madonsela, 1994:92).
5.2 Rate of payment
ILO Convention 103 requires a minimum period of 12 weeks at a rate of not less than two-thirds of the woman's previous earnings … ILO Recommendation 95 recommends that benefits should be at 100% over a period of 14 weeks. A number of countries meet the payment level of Recommendation 95 and in a number of cases exceed this."
"According to a publication of the Social Security Administration entitled Social Security Programmes Throughout the World (1995) states that "in a number of countries, maternity benefits are set at 100% of wages". Furthermore, a nursing allowance (usually 20-25% of the regular maternity benefits and payable for up to 6 months or longer) may be provided in addition to the basic cash maternity benefit. Some programmes also provide for a grant for the purchase of a layette or the layette itself. In addition, some countries pay a lump sum maternity grant on the birth of each child."
Given the above the Commission supports the view that "South Africa should be striving to emulate best practice internationally to the extent that this is possible, rather than simply introducing the bare minimum. This is even more strongly motivated by the national socio-economic context we find ourselves in. Women occupy a structurally disadvantaged position in the South African economy. Labour market segmentation and discrimination result in unequal income levels and high proportions of women in low status jobs."
"According to the ILO Report entitled Restructuring the Labour Market: The South African Challenge (1996:383) the disadvantages and discrimination faced by women in the South African labour market are acute by international standards. The report finds that there is gender-based discrimination and disadvantage by sector of employment work status, occupational segregation and income, amongst others. The report states that: "Women in South Africa have been disadvantaged by being concentrated in 'segments' of the labour market where incomes, opportunities and working conditions are relatively unfavourable." African women are the most acutely and systematically disadvantaged in the South African labour market."
5.3 Duration of Benefits
In determining the duration of benefits the health status of the mother and the infant ought to be the primary determining factors. The Commission concurs with the view that "cash benefits largely determine whether a women is in a position to take the leave she is entitled to. If the cash benefits are provided at a rate which is too low or over a period which is too short, she is likely to go back to work earlier than would be appropriate to her health and her child's"
Recommendation: Women should be entitled to four months maternity leave benefits at 100% pay and an optional further 2 months at 60% pay.
In referring to maternity benefits, the Bill speaks of 'confine'. Progressive feminist theory rejects terminology that equates child bearing and its consequences with notions of restraint and social exclusion. We recommend that the terminology in the Bill be appropriately adjusted to be in line with progressive understandings of pregnancy and its social implications. Suggested alternative terminology would more appropriately refer to the point of childbirth (as opposed to 'confinement').
Recommendation: Replace 'confine' with 'the time of childbirth'
State contributions to the UIF have progressively diminished from half of the fund to a negligible amount over the years. The Bill proposes that the State not contribute any amount at all to the fund. In light of the fact that UI in South Africa is a form of a social security, we find it unacceptable that the State be absolved of its duty to contribute and maintain the fund. We do not advocate an exclusive state sponsored fund however, we cannot at the same time support the abdication of State responsibility in this regard.
State contributions can be useful for ensuring the financial integrity of the fund. Further, it would assist in extending the fund to other workers currently not included amongst these domestic workers and workers in the informal sector.
"Furthermore, looking at the international cases, many social insurance schemes include contributions by the employer, employee and the state."
In addition, the State must explore mechanisms for ensuring sustainability and growth of the fund, eg ensuring management of the fund by professional asset managers.
Recommendation: The State should make a contribution to the fund to subside 100% maternity benefits for women and as a means of maintaining the stability of the fund and as a means of ensuring coverage for low income earners.
To limit eligibility to termination at the employers insistence restricts workers in their capacity to control their personal working lives. Allowances need to be made for instances in which employees are for various reasons forced to terminate their employment.
Recommendation: Include a mechanism to cater for employees who find themselves compelled to terminate their employment.
The Bill allows payment points to be determined by department officials. This could impose significant difficulties on employees. Hence we suggest that employees be allowed to determine where they receive their payments.
Recommendation: Payments points to be determined by employees
Recommendation: Replace ‘confine’ with ‘the time of childbirth’
In conclusion, the Commission finds it necessary to state that it finds the exclusion of Domestic Workers not only potentially unconstitutional but certainly unconscionable. Should this situation persist in the final passage of this Bill, the Commission is intent on exercising any means at its disposal to oppose the passage of such legislation.
19 March 2001
Commissioner P Mbowane
Fatima Seedat -Deputy Director, Parliamentary office