Employment Services Bill: deliberations continued

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Employment and Labour

29 October 2013
Chairperson: Mr M Nchabeleng (ANC)
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Meeting Summary

The Committee deliberated on the Employment Services Bill. Members were encouraged to comment on  clauses that held interest for them.

Members showed interest in clauses related to the presence of the National Economic Development and Labour Council (NEDLAC) and the NEDLAC process in appointments to the Employment Services Board. Changes in approach to sheltered employment were discussed at some length. There was agreement that “supported” had to replace “sheltered” in the bill, as sheltered employment could be isolating and remove people from participation in the broad economy. There was interest in clauses relating to the employment of foreign nationals without valid work permits. The bill made provision for penalties for violating the Immigration Act, and for permanent residence to be a priority for employment. Exceptions to the stipulation that fees may not be charged for providing employment services to a work seeker, were discussed. The bill provided for specified categories of employees or for the provision of specialised services. The example of agents who represented sportspersons, was cited as a case where fees could legitimately be charged. The Department of Labour stated that the bill would provide the legislative instruments that had to be in place for South Africa to ratify the International Labour Organisation convention.

The Committee adopted the minutes of 8, 9, 10, 15 and 16 October.

Meeting report

Deliberations on the Employment Services Bill
The Chairperson asked Members so speak to the clauses that were of interest to them.

Clause 7: Job Retention
Mr A Williams (ANC) suggested that “Board” in clause 7.(1) be changed to “NEDLAC”. NEDLAC was more representative.

Mr E Nyekemba (ANC) asked if the Board was appointed in consultation with NEDLAC, and if the Board was appointed through the NEDLAC process.

Mr Sam Morotoba, Department of Labour Deputy Director-General for Public Employment Services, responded that the Minister appointed members forwarded by NEDLAC. They were nominated through NEDLAC structures. It was a question of trust. People nominated for the Board might not have the same capacity as NEDLAC people. If the Minister had to go to NEDLAC for decisions on policy, there could be problems. The Minister worked with NEDLAC to appoint, and nomination was through NEDLAC structures.

Mr Mongameli Kweta, State Law Adviser, added that three persons from NEDLAC had to be on the Board. Consulting the Board was also consulting NEDLAC.

Clause 21: Composition of Board
Mr D Kganare (COPE) referred to clause 21.(1)(b).  He asked if officials were appointed by the Minister, Parliament or Cabinet. He asked if there was a fair and competitive selection process. The chairperson would be a non-voting member.

Mr S Motau (DA) noted that Mr Morotoba had said the week before that “protected enterprises” would be changed to “supported enterprises”.

The Chairperson noted that there were recommendations from structures that they preferred “supported” to “sheltered”. He asked how members felt

Mr Motau offered that the people who were affected, found “sheltered” important.

Mr K Manamela (ANC) said that it emerged in public hearings that sheltered employment created isolated structures that isolated them from the broad economy. Part of the amendment process was to ensure that sheltered employment was not isolated, and that it would be integrated. Disabled people had to be looked at differently. To legitimise isolation of the disabled, had to be avoided.

Mr Kganare referred to foreign nationals who worked without a permit. He had thought that there was a standard rule. He asked why it had to be reconstituted. He asked if Member’s comments would be responded to.

The Chairperson answered him that Members would give inputs, and the Departmental legal team would respond. There would be an A list at the next meeting.
Mr Morotoba said that clause 21.(3) had to be in the place of 21.(1). The Minister could place advertisements for a chairperson, and interested government parties would be placed on a shortlist.

Clause 42: Establishment of Protected Employment Enterprises
Mr Morotoba agreed with the sentiments expressed by Mr Manamela about sheltered employment (clause 42). The definition was problematic. The argument was not around the model of factories. The United Nations allowed for such establishments, but the definition was based on psychological and mental factors. It was not the intention to move handicapped people to supported factories. There were 100 such factories. The Department of Education had schools for children with psychological or mental problems. It was a feeder process for people who had reached school leaving age, and could not go to such schools.

The Chairperson noted that the factories were not only for the disabled. It was only a matter of the disabled getting preference, especially military veterans. The factories were originally intended for demobilised soldiers with injuries, usually ex combatants from the liberation movement. There had been change in terms of focus.
Mr Morotoba said that there had been interaction with the army, who had established special factories. It was a slow process. A regulatory framework had to be developed. The history of the factories entailed a moving around between various departments. There were a lot of former service people who had been damaged and traumatised. For some the extent of trauma caused them to be mentally affected, so that they could not function in normal labour markets. Among military veterans there had been a shift from catering for the psychologically affected towards military veterans who could not find employment. The cut-off age was 45 years, to enable veterans to leave the military to be trained in other ways. Military bases had been converted into colleges. The ex combatant element was being removed. It was not interference with the current military veteran process.

Clause 8: Employment of Foreign Nationals
Mr Kweta referred to clause 8.(1). The Immigration Act provided for criminal liability if a foreign national was employed without a valid work permit. There were penalties for violating the Immigration Act. Permanent residence had to become a priority for employment. South Africans had to have preference over foreigners.

Clause 52: Regulations
Mr Kweta referred to clause 52.(1)(g), which empowered the Minister to make regulations relating to “any other matter relating to the provision of public employment services or the regulation of private employment agencies”. During previous hearings Parliament had stated that “any other matter” was too wide. Stakeholders had not said where it had come from. The Minister could not have too wide powers.

The Chairperson said that there was no law to aid conviction of those who were selling jobs to job seekers.

Mr Morotoba said that there had to be prohibitions against charging fees to work seekers by employment services. Vulnerable work seekers was the exception and posed a problem. The legislation indicated penalties at different levels. There were boxers and soccer players who used agents. There were different categories of work seekers. The Minister could make regulations for agents who sought work, like boxing promotors, to get a fee. But vulnerable workers had to be protected from employment agencies.

Mr Morotoba noted that South Africa had not yet ratified the International Labour Organisation (ILO) convention. With the passage of the bill it could be ratified, because then the legal instruments to ratify it would be there. Ratification would become possible once the legislative means were there.

Clause 15: Charging of Fees by Private Employment Agencies
Mr Manamela said that there was a need for clause 15.(2) that provided for specified categories of employment, or for the provision of specialised services.

Adoption of minutes
Minutes of 8, 9, 10, 15 and 16 October were adopted.

The Chairperson adjourned the meeting.


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