Through our work at the Women’s Legal Centre and the Legal Resources Centre, we know that women are negatively affected by the dominant economic and patriarchal systems at play in the world. The intertwining patriarchal and racist structures in homes, neighbourhoods and workplaces mean that women’s work is often overlooked, devalued and criminalised. Women face multiple, intersecting forms of discrimination that affect them specifically, resulting in more precarious working conditions and greater impoverishment of women.
To name but a few examples: we see how continued gendered and social norms translate into an unequal division of labour at home. Women bear the brunt of “unpaid care work”, with limited access to childcare services and support. Sex workers continue working without rights and thus become subject to violence and abuse with no recourse with regards to labour law.
Sexual harassment continues to plague our workplaces and women bear the brunt of men’s actions without always being able to obtain sufficient justice in relation to the incidents they experience. We firmly believe that the goal of eliminating violence and harassment in the world of work is closely linked to ending discrimination, promoting equality and extending economic security to all, but especially to women.
In seeking to respond to this, the United Nations’ labour agency, the International Labour Organisation (ILO), adopted the first global convention aimed at addressing and reducing violence and harassment in the workplace. The ILO Convention on Violence and Harassment was adopted during the International Labour Conference, which took place from June 10 to 21 in Geneva, Switzerland. The convention must still be ratified.
This is the first international convention that addresses violence and harassment specifically in the world of work. The adoption of the convention is accompanied by nonbinding recommendations that provide guidance on the convention’s obligations.
Should South Africa ratify the convention, it will be obliged to domesticate and implement the convention in its own laws and policies as far as possible. It also obliges states to monitor violence and harassment in the workplace, provide access to remedies and victim services through complaint mechanisms, witness protection measures and measures to protect victims from reprisal. It seeks to provide relief to workers, including trainees, workers whose employment has been terminated, and prospective employees, among others.
Critically, the convention applies to workers in both formal and informal sectors. The protection and relief is also applicable in cases of violence and harassment encompassing third parties in the workplace, such as clients, customers or service providers.
Similar to section 12 of the our Constitution, the convention recognises and asserts the right to be free of violence from either public or private sources. This affirmation is critical in providing protection and relief to the struggles women face in the workplace because of the presence of patriarchal norms that create unsafe workplaces. In the wake of the multitude of sexual harassment cases that have been exposed in the past two years in South Africa, this adoption is an essential step towards the realisation of women’s rights in the workplace.
In this context, the convention goes on to draw attention to the disproportionate burden of violence and harassment that is borne by women — even more so in the informal economy, where many women are employed in South Africa, and women’s work remains unrecognised and undervalued. In doing so, the convention adopts a welcomed feminist and intersectional understanding of violence and harassment in the world of work and places key obligations on governments to do more to ensure women’s substantive equality in the workplace.
The language in the convention speaks to an intersectional approach requiring a “gendered–responsive approach” for national laws and policies. This gendered–responsive approach is in line with the victim-centred approach that our respective work promotes. This is necessary to ensure that laws and policies are not merely implemented in a check box system without due regard to the victim of violence.
This approach places them at the centre of the process. The diversity of women and where they are situated in respect of race, class, rural or urban, sexual orientation or gender identity are critical factors when developing laws and policies that seek to protect women from violence and harassment that the convention recognises.
The adopted ILO convention builds on and strengthens the international human rights framework as it recognises that violence and harassment in the world of work is a human rights violation. In international law, women’s rights in the workplace are universally recognised as human rights, and South Africa is signatory to regional and international conventions that place obligation on the government to realise these rights within a rights-based framework.
Regional and international law, such as the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, the Convention on the Elimination of Violence against Women, and the International Covenant on Economic Social and Cultural Rights mandate state parties to combat violence, reinforces a rights-based approach to combat violence and defines gender-based violence as including sexual harassment in the realm of work.
In March, the Commission on the Status of Women provided progressive recognition of women’s unpaid domestic care work and recognised the way such recognition influences women’s ability to live free from violence, abuse and poverty.
A substantive approach to laws and policies that seeks to consider women’s lived experiences and realities in the workplace, whether working in the home, the office, in the factory, the fields or any other context is, therefore, undeniable and fundamental. The more dire the employment circumstances of women, the more vulnerable they will be to exploitation, harassment and violence.
We firmly believe that we can only achieve substantive equality in South Africa — where we still have high levels of poverty, inequality, harassment and violence — if we continue to promote and ratify legislative frameworks that are grounded in intersectionality, are gender inclusive, and take sensitive approaches that seek to address historical and current disadvantages and harmful stereotypes and stigma faced by women and other vulnerable people. It is imperative to transform patriarchal workplace structures and eradicate discriminatory practices that negatively affect women’s environments in the workplace.
In the coming months, we hope to see South Africa take up responsibilities in both Africa and at the UN where it will be a key figure in setting the human rights agenda, specifically for violence and harassment as already entrenched in our Constitution.
South Africa has thus far supported much of the language and text of the proposed convention, as have the trade unions. We hope that when the time comes for ratification, there will be no doubt that South Africa will ratify the convention in the spirit of the advancement of justice, equality and dignity that is so firmly embedded in our constitutional democracy.
Mandi Mudarikwa is an attorney in the equality and nondiscrimination project of the Legal Resources Centre in Cape Town. Charlene May is an attorney at the Women’s Legal Centre and heads the relationship rights programme