Employment Equity Amendment Bill: deliberations

Meeting report

Employment Equity Amendment Bill, 2012: Deliberations
The Chairperson welcomed everyone, and reminded them that the Employment Equity Amendment Bill, (the Bill), which amended the Employment Equity Act 1998 (the Act), had been presented to the Committee by the Department of Labour (the Department or DOL) at an earlier date. He sought clarity from the Department on the latest position with the Bill.

Mr Thembinkosi Mkalipi, Acting Deputy Director General: Labour Policy and Industrial Relations, Department of Labour responded that the Department had already taken the Committee through the different clauses in the Bill. There were a few technical changes, based on the last meeting it had with the Committee on the Bill. However, the time had now been reached when Members should indicate their position on the different issues in order to help the Departmental and Parliamentary Legal Advisers in the preparation of an A-list. In this meeting, the Department did not think it necessary to explain the details of every clause, as it had done this earlier. It would, however, be responding to any part of the Bill on which the Committee needed clarification. It was anticipated that voting on the Bill could take place during the next meeting on the Bill, when the A-list would have been finalised.

Mr Mkalipi said he did want to clarify the issue of the deletion of wording relating to local spheres of government, in section 1 of the Act, as it was important to clear up the confusion where the legislation mentioned both local government and municipalities. The amendment was necessary to avoid the impression that there was a difference between local governments and municipalities.

The Chairperson asked the legal advisers if they had any issue with the proposed amendment to delete “local government” from the Act.

Ms Anthea Gordon, Senior Parliamentary Legal Adviser, replied that the Parliamentary legal team had no objection with the proposed amendment but would be happy to look into it further if the Committee had any particular concerns.

The Chairperson asked the legal advisers if there was any A-list yet.

Ms Gordon replied that the A-list normally evolved out of the Committee deliberations that provide a clear indication of the amendments that Members were proposing to the Bill. The A-list could only thus be finalised after these deliberations, which would allow for identification of the issues.

The Chairperson commented that fewer issues had been raised by the Committee on this Bill. He asked if Members needed any further clarification on the Bill.

Mr E Nyekemba (ANC) asked for further clarification on the proposed amendment to delete “local government” from section 1 of the Act. He noted it was important to consider the Constitution’s definition of the spheres of government, and to check whether the reference was to municipalities or local government.

Mr Mkalipi referred to the section of the Constitution that defined organs of the state to include “local government”. Currently, this Bill was seeking to amend a section that referred to organs of state as defined by the Constitution, but it went on to exclude local government. The Bill sought to delete the provision around exclusion, as there was no reason the local government should not comply with the Act while other spheres of government had to comply.

The Chairperson commented that section 1 of the Act did not only cover all spheres of government, but the whole of the nation, including the private sector, public sector and industries. He added he was not sure if it included the military and intelligence.

Mr Mkalipi replied that the military and intelligence were excluded from the scope of the application of the Act, although the definition included all of them.

Mr D Kganare (COPE) wanted to know how the issues raised in the public hearings, concerning the definitions of disability and people living with disability, employment benefits, as well as vulnerable workers were handled.

Mr Mkalipi replied that the public hearings dealt with both the Employment Services Bill and the Employment Equity Bill. Presently, the only issue relating to this Bill specifically was that of disability, as the issue of vulnerability was within the purview of the Employment Services Bill. The Department’s response to the Committee’s concern on the definition of disability took account of the ongoing debate about whether it was desirable to have legislation that defined disability. There was presently a code that defined disability, which was being considered by the Department. The code’s definition of disability was not limited in scope. but offered a broader definition of disability. Copies of this code had been forwarded to the Committee for its consideration.

He added that the definition of the “designated groups” set out in section 1(b) of the Bill was now confined to South Africans who obtained citizenship after 1994.

The Chairperson asked if the proposed amendment on affirmative action, on citizenship denial, and designated groups meant that people who had failed in their application for citizenship during apartheid, but who recently came back into the country, would not be classified under the designated groups.

Mr Kganare expressed concern about the persisting discourse on people who were denied citizenship during apartheid, even after 20 years of liberation. He noted that such people did not have a case if they had not applied again for citizenship 20 years after apartheid.

Mr Kganare noted the measures to redress the disadvantages in employment experienced by designated groups, and remarked that it would be wrong to conclude that white women were discriminated against in the same way that black men and women were. During apartheid, white women were not oppressed, and had the right to vote. White women might have been discriminated against by their husbands, but black women and men were actually oppressed. It was important not to create an impression that the kind of oppression and discrimination black men and women experienced during apartheid was the same as that of white women.

The Chairperson replied that white women were also discriminated against, noting that at one time in South Africa’s history, both black and white women were seen as minors, who could not enter into contracts without the support of their husbands.

Mr Kganare responded that it was important not to trivialise the impact that apartheid had on some people. He referred to instances in the retail industry, where black men and women were paid lesser salaries than white women during apartheid years. He said that it was important to be frank when dealing with the discrimination of the past. He reiterate that it was not true that white women were oppressed in the same way as blacks were during apartheid.

Mr A van der Westhuizen (DA) stated that there was no denying that some people were more oppressed than others. However, in terms of both law and regulations, white women were also discriminated against; for instance all women teachers, including whites, were paid less than their male counterparts, which made it difficult for them to fulfil their roles in the society.

The Chairperson noted the comments of Mr Kganare and Mr Van der Westhuizen, and remarked that although there were discriminations across race and gender during apartheid, it was accepted that the levels of such discrimination differed.

Mr Mkalipi replied that the amendment relating to affirmative action provided for a person or persons who wanted to take affirmative action, if they had been denied citizenship in the apartheid regime. It did not intend to give anyone citizenship now, but was only stressing that people who had been denied citizenship during apartheid could be the subject of affirmative action. The Bill also did not emphasise oppression, but discrimination. Although levels of discrimination might not be the same, evidence did show that white women were also disadvantaged in the labour market.

Mr Nyekemba responded that what was being emphasised by Mr Kganare was that the whole idea of equity emanated from oppression. It was apposite to refer to the past in the making and amendment of laws. The Bill was referring to the labour market, but there could be no labour market without consideration of the past and its events. White women still had some benefits during apartheid that blacks were denied, and this should be considered in any law relating to employment equity.

Mr Kganare reiterated that blacks were not disadvantaged, but oppressed. The Annual Employment Equity Report had shown that those who benefited the most during apartheid had devised a way of maintaining their advantages. In Kwazulu-Natal, the definition of “designated group” had been taken to include Indians. It was not, however, the Indians themselves that decided this, but the apartheid policy. The Indians and Coloureds did not decide what happened during apartheid, especially the oppression, but the apartheid regime made those decisions. White people, including women who had the right to vote against apartheid, did not vote against it. If they did not like what happened during apartheid and were not in support, they should have voted against it. They therefore could not be victims of the system which they maintained themselves.

Mr A Williams (ANC) stated that the essence of the legislation was not to give more advantage to some people who suffered discrimination in the past. Parliament should not make legislation that would create differences between people. The legislation was needed because, historically and presently, women were discriminated against. The purpose of the Bill was thus to create a level playing field so that from this time forward no women would suffer discrimination.

The Chairperson noted the clarification of Mr Williams, and further asked the legal advisers if they had any comment on the debate about the issue of discrimination.

 Ms Gordon replied that the legal team had nothing to contribute on the issue.

Mr van der Westhuizen identified an error in Schedule 4, Page 11 of the Bill, where the item on agriculture was followed with a full stop, while the other items had commas. He proposed the substitution of this with  a comma.

Mr Mkalipi noted the correction.

Mr van der Westhuizen referred to the amendment, by clause 4 of the Bill, of section 8(d) of the Act, and asked what the position of the Department was on the word ‘certify’. He asked if the Department was still standing by its initial position, as there had been a proposal to replace ‘certify’ with ‘classify’.

Mr Mkalipi replied he was not sure the change in the wording would make any difference. Alluding to the provision that stated that testing of an employee in any other similar assessments was prohibited unless the test or assessment being used had been scientifically shown to be valid and reliable, Mr Mkalipi noted that there were restrictions on applicable assessments which had to be applied fairly to all employees, and must not be found to be biased against any employee or group. Section 8(d) of the Act was related to section 8(a). It was not compulsory to put it as it presently was, but he thought that ‘certify’ could be substituted with ‘scientifically shown to be valid and reliable’. The legal team could perhaps expand on the implication of changing the word ‘certify’.

Mr van der Westhuizen made reference to the public hearings on the Bill, where a speaker noted that the Health Professions Council of South Africa (HPCSA) did not do certifications but “classifications”, noting that that was what prompted his argument for the substitution of ‘certify’.

Mr Mkalipi replied that HPCSA, in the public hearings, had noted that there was no mention of the type of assessment that needed to be certified by HPCSA in the proposed amendment to section 8(d) of the Act. HPCSA further stated that it was not qualified to certify all assessment and test such as the competency test. The argument was thus not so much about the word ‘certify’, as on the ability of HPCSA to certify beyond the area of the competency test. The law also did not prevent interviews by employers in order to select appropriate candidates. The Department was, however convinced, that HPCSA was in the best position, as psychologists, to decide which test was appropriate for a particular role or position.

Mr Gideon Hoon, Principal State Law Adviser, Office of the Chief State Law Adviser, stated that the amendment in clause 4 of the Bill was effectively empowering the Council to certify tests or assessments. If this was changed to “classify” it would not make any grammatical sense. The legal team would need to look at different wordings to advise on the most appropriate word to use.

Mr van der Westhuizen proposed that the legal advisers should look at the implication of using ‘certify’ and all other alternative words, and come up with a word that would best convey the intended meaning.

The Chairperson asked the legal advisers if they would be able to do that immediately, or they needed time to do so.

Ms Gordon stated that the legal team would not be able to review the word “certify” and the alternative words that could be used in clause 4, as they were constrained with resources. The legal team would also need to refer to the Health Professions Act No. 56 of 1974.

The Chairperson reiterated the objectives or intentions of the Bill, and noted that issues raised by the Committee concerning the Bill must speak to these intentions. Some of the issues that the Committee needed to deal with related to concerns raised in the public hearings. The onus was however on the Committee to take decisions based on the relevant concerns in the public hearings and more particularly on Members’ own judgements. Presently, there were no lingering serious concerns on the Bill as all parties had agreed on the issues around Black Economic Empowerment and other related legislation. Since there was agreement on the fundamental issues, it would be easier to agree on the other issues.

The Chairperson asked the legal advisers when the A-list on the Bill would be ready so that the Committee could proceed.

Ms Gordon replied that the sole outstanding issue had to do with the word ‘certify’ in clause 4, which the legal team would need to work on and report back to the Committee. The A-list would be ready by the next meeting on the Bill. The Committee should also be able to proceed clause by clause, and possibly vote on the Bill, at the next meeting.

The Chairperson remarked that the next meeting to discuss the Bill would take place on Tuesday 15 October 2013.

The meeting was adjourned.