Employment Equity Bill: briefing, deliberations, adoption; South African Postbank Amendment Bill: deliberations & adoption

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Meeting Summary

South African Postbank Amendment Bill: The Department of Communications explained that the Banks Act was the national law for all banking matters and the Postbank Limited Act must not contravene the laws of the Banks Act which governed all financial matters in the country. The Amendment Bill thus amended provisions that were inconsistent with the Banks Act or negatively affect the operational autonomy and independence of the Office for Banks. The Department took the Committee once more through the clauses. The Committee unanimously approved the South African Postbank Amendment Bill without amendment.

Employment Equity Bill [B13B- 2012]: The Department of Labour presented the Bill which sought to regulate the prohibition of unfair discrimination against employees. Under clause 1 it proposed the recognition of local spheres of government as an organ of the state. Clause 3(a) made a technical addition. Clause 6 ensured that if unfair discrimination was alleged on an arbitrary ground the complainant must prove, on a balance of probabilities that the discrimination was unfair. Clause 11(a) was a technical amendment clarifying when new companies needed to report after becoming designated. Clause 13 dealt with enforcement. Clause 14 dealt with compliance orders. Clause 15 repealed sections 39 and 40. Clause 16 dealt with assessment. Clause 20 gave the Minister the right to assist companies in implementing the Code of Good Practice. Clause 21 reducde the pages of reporting forms and simplified them and clause 27 dealt with the maximum permissible fines that may be imposed for contravening this Act.

The Democratic Alliance proposed to amend clauses 3, 6, 11, 13, 14, 15, 16, 20, 21 and 27 as it believed the current amendments in the Bill would only make the original Act much more onerous and stifle the economy and job creation. The DA stated that the way to deal with disadvantage should not be raced based. The DA accused the Committee of railroading the Bill through Parliament without due consideration. However, the Members said that the DA did not provide sufficient documentation for them to engage with its proposed amendments. The DA amendments were aimed at maintaining the status quo and they failed to acknowledge that it was the working class who would benefit from the approval of the Bill. The majority of the Members agreed that this Bill was trying to build an equal South African society rather than a racialised one and agreed to the Employment Equity Bill [B13B- 2012] without amendment.

Meeting report

The Chairperson noted that last week the Committee had already engaged in a briefing with the South African Postbank Amendment Bill [B 25- 2013] and the agenda for the meeting was to hear from the Department and engage with them on the Bill clause by clause. Once the Postbank Amendment Bill was finalised the Committee would engage with the Department of Labour on the Employment Equity Amendment Bill.

Mr Themba Phiri, Deputy Director-General: ICT Policy and Strategy,: Department of Communications (DoC) thanked the Committee members for allowing them to present and stated that as a Department it would extensively go through the bill and allow Committee members to concede to its amendments. He asked Mr Willie Vukela Chief Director: Department of Communications to present the Bill to members.

South African Postbank Limited Amendment Bill [B 25-2013]
Mr Willie Vukela, DoC Chief Director: ICT Postal Policy, said he would go through the Bill clause by clause. The South African Postbank Limited Act, 2010 sought to amend provisions that may negatively affect the operational autonomy and independence of the Office for Banks; it sought to remove any inconsistencies with the Banks Act; and to provide for matters connected therewith. The Banks Act was a national law for all banking matters and thus the Postbank Limited Bill must not contravene the laws of the Banks Act which governed all financial matters in the country. 

The Bill contained the following clauses:

Clause 1
Clause 1 sought to delete the term ‘‘Registrar of Banks’’ since it was not used and was therefore redundant.

Clause 2
Clause 2 sought to amend section 3 of the Act by deleting the exclusion of section 37 of the Banks Act. Section 37 of the Banks Act dealt with permission to acquire shares in a bank or bank controlling company. It was necessary for the Office of Banks to monitor and approve the acquisition of shares or interests by shareholders, the holdings of which were above specified thresholds or that exercise a material influence on the operations of a bank. The Office for Banks was required to assess the fitness, propriety or other qualification tests of entities wishing to acquire shares in a bank or controlling company.

Clause 3
Clause 3 sought to repeal section 4 of the Act. To register as a bank, the Postbank would be required to comply with the Banks Act in all respects. This included consolidated supervision, which sought to evaluate the strength of the entire banking group, taking into account all risks which may affect a bank, regardless of whether these risks were carried in the books of the bank or by its related entities including controlling company. Thus section 4 was removed to avoid any overlap, confusion or contradiction with the Banks Act.

Clause 4
Clause 4 sought to delete section 8 of the Act since exemption from tax liability should be the subject of a Money Bill.

Clause 5
Clause 5 sought to amend section 9 of the Act since some of the powers set out in section 9 related to areas already governed by the provisions of the Banks Act and required the prior notification or the approval of the Registrar of Banks. It unnecessarily overlapped with the jurisdiction of the Office for Banks, which was bound to cause confusion and legal difficulties.

Clause 6
Clause 6 sought to add an additional requirement in section 13 of the Act, to make it clear that no person may be appointed as or remain a board member if such a person was not fit and proper to hold the office of a member of a Board of a banking institution as contemplated in the Banks Act.

Clause 7
Clause 7 sought to amend section 14 of the Act to remove references to ‘‘fit and proper’’ and the required ‘‘concurrence of the Registrar of Banks’’. These provisions were not required anymore due to the amendment of section 13. Clause 7 further sought to align section 14(1)(b) with section 8(5) of the South
African Post Office SOC Ltd Act, 2011 (Act No. 22 of 2011), to avoid confusion.

Clause 8
Clause 8 sought to delete section 15(2)(e) since it was not necessary following the addition of section 13(1)(h).

Clause 9
Clause 9 sought to amend section 18 to make it clear that the managing director of the Postbank must be fit and proper to hold the office of chief executive officer of a banking institution as contemplated in the Banks Act.

Clause 10
Clause 10 sought to amend section 25 to ensure that the powers of the Minister to intervene fell away once the Company was registered as a banking institution in terms of the Banks Act. This was necessary since provisions such as sections 60(6), 69 and 69A of the Banks Act which provide clear guidelines to address mismanagement, non-compliance or any areas of material maladministration apply from registration. Once the South African Postbank Limited was registered as a bank, there should be no restriction on the application of the Banks Act.

Clause 11
Clause 11 sought to amend section 26 of the Act to remove the requirement that the Minister make policies for the Postbank. All registered banks were expected to adhere to the Regulations relating to
Banks, which were subordinate only to the Banks Act. The mission of the Office for Banks was to promote the soundness of the domestic banking system through the effective and efficient application of international regulatory and supervisory standards and best practice. To achieve this objective, the Office for Banks had two cornerstones for its regulatory and supervisory framework, namely, the Basel Capital Accord and the Core Principles. Accordingly, the Registrar of Banks cannot be bound by the provisions of the Postbank Act and policies made in terms of the said Act.

Furthermore, good banking and governance practice required that the Postbank’s board of directors approve and regularly review the policies of the bank and then oversee management’s actions and their consistency with board policies as part of the checks and balances embodied in sound corporate governance. Requiring Cabinet to approve the policies and any further changes to the policies was out-of-line with such good practice. The associated confusing multiple lines of responsibility may also exacerbate a problem through slow or diluted responses.

Clause 12
Clause 12 proposed to insert a new section 26A to provide that in the event of any conflict between the provisions of the Banks Act and the Act, the provisions of the Banks Act prevailed. If, for example, an offence under the Act was not an offence under the Banks Act or if the disclosure requirements of directors differ between these two Acts, this provision would make it clear that the Banks Act prevailed.

Clause 13
Clause 13 sought to amend section 30 of the Act to ensure that any exemption under the Banks Act applicable to the former Postbank immediately prior to the transfer date applied to the South African Postbank Limited from the transfer date until it was registered as a bank as contemplated in section 3.

Clause 14
Clause 14 of the Bill contained the short title.

Mr Vukela thanked the Committee for allowing him to present.

Discussion
Mr M Sibande (ANC; Mpumalanga) thanked the DoC for its presentation and said it was important for people to be aware that the Committee had already engaged in a lengthy discussion on the Bill the previous week and it was impressed by its final outcome. The fundamental issue to note was that Committee members wanted to see this Act improved which is why there were all supporting it.

The Chairperson said she appreciated it when the Committee displayed such unity because it allowed for procedural matters to be dealt with on a timely manner. She thanked the Department of Communications for its presentation.

Voting on South African Postbank Limited Amendment Bill
The Committee approved the South African Postbank Limited Amendment Bill [B25B-2013] without amendment.

Department of Labour briefing on Employment Equity Bill [B13B-2012]
Mr Thembinkosi Mkalipi Acting Deputy Director General and Chief Director: Labour Relations, Department of Labour, thanked the Committee for allowing him to present and stated that since there had been no further submissions on the Bill. He would proceed to brief Members on it clause by clause.

Mr R Lees (DA; KZN) stated that the Democratic Alliance had a number of proposed amendments which it would like to present as the DOL went through the Bill clause by clause.

The Chairperson said she acknowledged Mr Lees' request.

Clause 1
Mr Mkalipi said clause 1(a)(d) dealt with Section 1 of the Employment Equity Act, 1998. The present form of the Act applied to all organs of the state but excluded all local spheres of government which was a contradiction because section 239 of the Constitution recognized all local spheres of government as organs of the state. Therefore it was proposing for the removal of “local spheres of government” in the fine print which would ensure that section 239 recognised local spheres of government as organs of the state. Clause 1(a)(b) sought to normalise the playing field because presently the Employment Equity Act excluded white males and did not recognise them as beneficiaries. Instead, males who were non South African citizens but black or coloured had employment precedence over white South African males. Therefore it was proposing to substitute the current definition of “designated groups” to include people who were citizens of South Africa by birth or descent or those who became citizens through naturalisation, before 27 April 1994 and individuals after 26 April 1994 who were precluded by apartheid policies. Clause 1(c) was a technical amendment where “section 65” would be removed because it was a wrong referral. Clause 1(d) sought to ensure that the definitions of “serve” or “submit” ensured that all modes of electoral communication were viable modes of servicing.

Clause 2
This was a technical amendment, where it was being proposed that “categories and” be removed from that section.

Clause 3
Clause 3(a) sought to make a technical addition. Presently the law stated that one could challenge a case of racism on the basis of gender, race, sex, pregnancy, marital status, HIV, and sexual orientation but the proposed amendment would state for one to be able to file a case “on any other arbitrary ground”. Clause 3(b) was amending to state that a difference in terms of conditions of employees who were substantially doing the same work would be considered as discrimination. It was also putting in a provision for the Minister to make regulations that would help in assessing the implementation of equal pay for work of equal value. This particular provision came as a request from the International Labour Organisation (ILO) which identified that South Africa’s present legislation did not cater for equal pay for work of equal value.

Mr Lees said the DA had a proposed amendment for clause 3 and asked the Chair for guidance on whether the DA could address its concerns during the presentation.

Mr Sibande said procedurally, the Department needed to complete taking members through the Bill clause by clause and thereafter Members could raise their concerns and make any other additions.

Clause 4
It amended that only psychometric tests that had been certified by the Health Professions Council of South Africa, or any other body which was authorised to certify such tests, may be used in tests on employees.

Clause 5
It dealt with how cases of discrimination were dealt with. Currently the law only gave the CCMA (Commission for Conciliation, Mediation and Arbitration) the power to consummate, the proposed amendment would grant the CCMA power to consummate as well as arbitrate under cases of discrimination. If a person earned less than 183 000 or irrespective of their earning if an individual alleged unfair discrimination on the grounds of sexual harassment the CCMA would have the power to arbitrate. This clause would also give individuals the right to appeal if they were displeased with CCMA ruling.

Clause 6
Clause 6(1) dealt with the “burden of proof”. If one claimed that they had been discriminated against, the onus was with the employer against whom the allegation was made to prove on a balance of probabilities if such discrimination did occur. Clause 6(2) sought to ensure that if unfair discrimination was alleged on an arbitrary ground the complainant must prove, on a balance of probabilities that the discrimination was unfair. The law and constitution did allow for discrimination but the issue was to prove whether it was fair or not.

Clauses 7, 8 and 9
This was a technical amendment for the removal of “categories and”.

Clause 10
Clause 10(a) was a technical amendment for the removal of “categories and”. 10(b) sought to give the Director General the authority to go the Labour Court to impose a fine in accordance with Schedule 1, if a designated employer failed to prepare or implement an employment equity plan.

Clause 11
Clause 11(a) was a technical amendment clarifying when new companies needed to report after becoming designated. Under clause 11(d) presently if a company failed to report it simply need to notify to the DDG of its failure, the amendments were proposing that companies needed to be granted permission for lack of reporting and provide valid reasons for such. If such reasons were not accepted and companies still failed to report The DDG may apply to the Labour Court to impose a fine in accordance with Section 1. Clause 11(c) amended to ensure the DDG could take one to court if the information provided was either false or invalid.

Clause 12
Clause 12(a) was amending to extend its heading from “Income differentials” to “Income differentials and discrimination”. Clause 12(b) was ensuring that when disproportionate income differentials or unfair discrimination by virtue of a difference in terms and conditions of employment contemplated in section 6(4) were reflected in the statement contemplated in subsection (1), a designated employer must take measures to progressively reduce such differentials subject to such guidance as may be given by the Minister as contemplated in subsection (4).

Clause 13
Clause 13(1) was dealing with the issue of enforcement. Under this section the law was stating that an inspector needed to obtain an undertaking from a company, instead that amendment was proposing that inspectors needed to be able to use their own indiscretion to determine whether they would accept an undertaking or not based on the company’s record of compliance. Clause 13(2) if an employee failed to comply with a written undertaking, the Labour Court may, on application by the DG, make the undertaking, or any part of the undertaking, an order of the Labour Court.

Clause 14
Clause 14 dealt with compliance orders. The law presently stated that one needed to give an undertaking then a compliance order but the proposed amendment for 14(1)(a) would break that link and ensuring that inspectors were able to take undertakings to court. Clause 14(c) amended that a designated employee needed to comply with the compliance order within the time period stated in it and if the designated employer did not comply with an order within the period stated in it, the DG may apply to the Labour Court to make the compliance order an order of the labour of court.

Clause 15
Clause 15 repealed sections 39 and 40

Clause 16
Clause 16 dealt with assessment. The problem with the current law was that it did not give the DG power to enforce substantive compliance due to specific factors they needed to take into account before issuing notices of compliance. Clause 3(a)(ii) stated that it was up to the DG to provide a pool of qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees and the Department was opting for the removal of that clause section which seen as the responsibility of the company and not the DG. Clause 3(a)(iii) stated before any laws were implemented the DG needed to look at the economic and financial factors relevant to the sector in which the employer operated and it was opting for the removal of that clause because that was a company responsibility and not the DG. Clause 3(a)(iv) stated that before the implementation of compliance law the DG needed to anticipate economic and financial circumstances of the employer, which it was opting to remove because such was not seen as the responsibility of the DG and clause 3(a)(iv) stated that the DG needed to be aware of the number of present and planned vacancies that existed in the various categories and levels, and the employer’s labour turnover which it was opting to remove because that responsibility was seen as the companies. These factors had been the result of why the Department had been unable to take any companies to court due to the steps involved in the Assessment of Compliance. Clause 16(2)(3) was giving the Minister after consultation with NEDLAC the authority to make regulations.  

Clause 17
Clause 17(1) dealt with the issue of the Labour Court. The clause gave the DG the ability to apply to the Labour Court if an employer failed to comply with a request made by the DG in terms of section 43(2) or a recommendation made by the DG in terms of section 44b. Clause 17(2)(a)(b) gave parameters of enforcement if an employer notified the DG in writing that it did not accept the request or recommendation issued by the DG.

Clause 18
Clause 18 was a technical amendment around the issue of inclusion on enforcement and arbitration.


Clause 19
Presently the law allowed anyone to take the DG on review even under recommendation. Clause 19(a) was amending that one could only review an administrative decision, recommendatory decision could be taken under review because they were simply recommendations.

Clause 20
Clause 20(5) gave the Minister the right to assist companies on implementing the Code of Good Practice.

Clause 21
Clause 21(2) sought to reduce the pages of reporting forms and simply them. There was no need to make separate forms for small and larger companies but rather create a standardised form that could be accessed online by all companies.

Clause 22
Clause 22 was about delegation and it gave the Minister the right to delegate any power conferred, or assign any duty imposed upon the Minister in terms if this Act except the powers and duties contemplated in sections 29(1), (5) and (7), [53(2),] 54. 55, 59(4) and 61(4). It was proposing to remove “53(2)”.

Clause 23
Clause 23(3) sought to increase the fines of a person convicted of an offense in terms of this section to a fine not exceeding R30 000. Clause 23(4) was giving the Minister to increase the fines on a yearly basis in order to counter the effect of inflation.

Clause 27
Clause 27 dealt with the maximum permissible fines that may be imposed for contravening this Act. If one failed to comply with the law of section 20, the court needed to fine the company 1.5% or 2% of said company’s turnover as a first offense penalty. If one was concerned about small business fining on the percentage of turnover was much more realistic than fining on a fixed amount.

Clause 28
This dealt with the turnover threshold applicable to designated employees.

Clause 29
This dealt with transitional provisions.

Clause 30
This dealt with the short title and commencement.

Clause by clause deliberations on Employment Equity Bill [B13B-2012]
The Chairperson thanked Mr Mkalipi and asked checked if the State Law Advisors had any additional input. She added that Mr H Groenewald (DA; North West) would be speaking on behalf of Mr Lees since he was not a Member of the Committee.

Mr Lees stated that it was his right to speak and therefore he would be speaking.

The Chairperson acknowledged Mr Lees and stated that he had the right to speak but did not have the right to vote. She asked Members to go through the clauses individually and state their agreement or disagreement. 

Members agreed to amendments made to clauses 1 and 2.

Clause 3  Amendment of section 6 of Act 55 of 1998
Mr Groenewald stated that the DA requested an amendment to Clause 3(b)(4). It wanted to insert a definitional section to distinguish what the amendment meant when it stated “sustainably the same work” or “work of equal value”. Adding a definitional section would bring South Africa further in line with the ILO Convention.

Mr M Jacobs (ANC/Free State) said Mr Groenewald had not provided the Committee with a copy of his proposed amendment which made it difficult to follow him.

Mr R Tau (ANC/Northern Cape) asked if Mr Groenewald was stating that if the Committee proceeded with the Bill as captured it would be in contravention with international law.  

Mr Lees said inserting a definitional section for “substantially the same work” and “work of equal value” was important because on sight it could mean multiple things if not clarified and ultimately it could be used in a vexatious manner. To rectify this particular problem, the DA had proposed a definition to distinguish between the two, “substantially the same work” was considered to fall within the same job classification and was not identical in any respect nor was it interchangeable. “Work of equal value” meant work of similar demands, effort, skill and decision making performed under similar working conditions. Those were two definitions it wished to add to the Act in order for it to accept the amendment proposed.

The Chairperson said after listening to Mr Lees she would like the Department to further clarify on Clause 3.

Mr Mkalipi referred to the definitions proposed by the DA Members and said there was confusion on what it was trying to achieve. Currently NEDLAC parties were busy trying to implement the amendments made within clause 3 to discuss the regulation on the criteria that would be adopted by the Minister to prescribe a methodology for assessing work of equal value. Therefore one could not just put a definition in place before really clarifying the issue. 

Mr Sibande said he was not convinced about the fundamental changes proposed by the DA. It would have assisted the Committee better if the DA had submitted its proposal the previous week to assist the Committee in understanding what its amendments were leading to.

Mr Jacobs said he did not agree with the insertion proposed by Mr Lees. The proposed amendments were trying to pre-empt what the courts would say and the current amendments in the Bill were fine as they were. He proposed that the Committee agree with the current state of clause 3(b)(4).

Mr Lees said the DA was concerned that the terms were being loosely defined. If the terms were left to the discretion of the Minister they could be defined in vexatious manner. Since the clause was a law and not a negotiation, he pleaded with Members to take the amendments seriously.

The Chairperson said the clause would be accepted as it was presented by the Department but it would note the DA’s disagreement.

 Members agreed to clause 4 and 5.

Clause 6 Substitution of section 11 of Act 55 of 1998
Mr Groenewald said the DA had a proposed amendment to add a 6(1)(c) that would state “or any other factor that might be relevant”. The amendment would allow courts larger discretion when determining if and when unfair discrimination did occur.

Mr Jacobs said he had a problem in the manner the proposed amendments were being presented because Mr Groenewald was not clarifying the sections the DA wished to amend. The insertion was simply too broad. He proposed that the Committee agree with the original amendments proposed by the Department.  

Mr Sibande said the proposed amendments for clause 6 presented by the DA did not talk to the actual Bill.

Mr Lees said one had to allow the courts more room to manoeuvre, the additional insertion would give the courts that ability.

Mr Tau said inserting a clause that created a soft landing spot would only create more problems. He requested that the Committee refrain from going in such a direction but create space for the state to perform its duties.

Mr Jacobs said rather than pre-empting what the courts had to say, Members needed to focus on creating laws.

Mr Mkalipi said when courts decided on whether factors were discriminatory or not, it did not decide on whether the presented facts were relevant or not but on whether such facts were justifiable.

Mr Lees said he did not understand what Mr Mkalipi was saying, because his explanation had now become a debate on the English language.

Mr Jacobs proposed the acceptance of the clause.

The Chairperson said clause 6 would be accepted but the DA’s disagreement would be noted.

Members agreed on clause 7, 8, 9 and 10.

Clause 11 Amendment of section 21 of Act 55 of 1998
Mr Groenewald said the DA was proposing to remove all clause 11 amendments and leave the whole section as it was. The reason for its proposed amendment was to ensure that reporting was kept to the original two-year requirement. Removing clause 11 would remove this extra burden from small businesses.

Mr Tau said it was pity that even if one was tempted to agree with Mr Groenewald, one could not understand what was being said.

The Chairperson said it was difficult to follow Mr Groenewald’s amendments because the Committee did not have his document.

Mr Jacobs said if Mr Groenewald wanted the Committee to engage with the DA proposed amendments, proper documentation was needed. Simply reading out the amendments was not sufficient. He proposed that the Committee accept the clause as it was presented in the Bill.

The Chairperson said Clause 11 would be accepted, but it would note the DA’s disagreement.

Members agreed to Clause 12.

Clause 13 Substitution of section 36 of Act 55 of 1998
Mr Groenewald said the DA was proposing to remove all clause 13 amendments. Removal would allow labour inspectors to continue obtaining written undertakings allowing flexibility in the Act and omitting draconian approaches to compliance. Removal would also maintain the current certainty surrounding an undertaking to comply and prevent uncertainty.

The Chairperson said Members required additional motivation if it was to consider the DA’s proposed amendment.

Mr Lees said he would like to place on record that the proceedings of the meetings were farcical and the amendments were being rushed through.  it was important that Members really paid attention to what they were doing. The current Amendment Bill would only make the original Act much worse and the DA was proposing for the removal of those amendments.

Mr Sibande said Mr Lees could not comment on the workings of the Committee because this was his first time attending its meeting.  Members were not blatantly rejecting the amendments proposed by the DA but were asking for proper documentation in order to engage with the DA’s proposed amendments.

Mr Tau said he found it difficult that Mr Lees did not support the Principal Act because of its supposed draconian measures. At what point did one claim something was draconian when it sought to amend what was previously disagreed on. Here was an instrument that sought to strengthen the state and hold employers accountable for their lack of compliance, yet Members were saying it was draconian because it would affect those who were comfortable and abuse the very people who had voted for Members to be in Parliament. He proposed for the acceptance of the clause as it was.  

Mr Jacobs said the amendments in the Bill were put in place as a result of the practicalities that had been experienced by the Department.

The Chairperson said the ANC accepted clause 13 but it would note the DA’s disagreement.

Clause 14 Amendment of section 37 of Act 55 of 1998
Mr Groenewald said the DA did not agree with clause 14.

The Chairperson said the DA’s disagreement would be noted.

Clause 15 Repeal of sections 39 and 40
Mr Groenewald said the DA did not agree with clause 15. It wanted the removal of clause 15 because it would allow business to object to compliance orders in a cheap and easy manner, thereby relieving the compliance burden from all businesses. Removal of clause 15 would prevent the Minister from issuing regulations on the subject thus creating certainty with regards to objections and preventing unnecessary mistrial objections. Further the removal of Clause 15, which repealed sections 39 and 40 of the Principal Act does not consider section 157(4) in the Labour Relations Act.

Mr Lees said the DA moved for the deletion of clause 15 from the Bill and that the Act to remain as it was.

Mr Lees raised his strongest objection to the railroading that was taking place in the meeting.

Mr Jacob said Mr Lees was out of order in terms of his behaviour. If the DA was proposing amendments, it needed to convince the Department. He proposed the acceptance of clause 15 as it was.

The Chairperson said the ANC agreed to the clause and that it would note the DA’s disagreement.

Clause 16 Substitution of section 42 of Act 55 of 1998
The DA said it was proposing to remove Clause 16 and leave section 42 as it was. The removal of amendments would prevent the Minister from setting out compliance assessments.

Mr Jacobs said the Committee needed to accept the clause as it already was.

Mr Sibande said he supported Mr Jacobs’s request. This law sought to give more power to the Minister and DG which would in turn minimize the challenges associated with compliance issues.

Mr Lees said clause 16 would stifle economic creation. Section 42 under clause 16 was the worst in these particular set of amendments.

Mr Tau said if job creation would be linked with the abuse of workers he would not agree with the notion that said that this law would stifle economic growth, if job creation was linked to lack of compliance with the law that sought to create an environment of equality amongst all South Africans in the workforce then he would not agree with the notion that said that it would regress the ability to grow the economy of the country.

Mr Sibande said Mr Lees could not divorce workers from the economy, one was not talking about theory but practicality. The law was aiming to minimize the challenges in the workforce.

Mr Lees said this act would change labour relations and was not intended to protect employees.

Mr Jacob said the DA’s amendments was aiming to exploit workers and as a Committee it needed to liberate people from economic oppression.

The Chairperson said it agreed with the clause as it was but it would note the DA’s disagreement.

Members agreed with clause 17, 18, and 19.

Clause 20 Amendment of section 53 of Act 55 of 1998
Mr Groenewald said the DA was proposing for the removal of all amendments under clause 20. The removal would prevent the Minister from issuing the Code of Good Practice on employment equity and compliance which would prevent employment equity being governed by ministerial regulations. Removal was in line with wanting to keep section 42 as it was - in order to prevent discretionary, subjective determinations of compliance.

Mr Sibande said there needed to be laws which gave the Minister the authority to intervene.

Ms Ntsoaki Mamashela, Director of Employment Equity: DOL, said the Code of Good Practice was a practical guideline to assist how one assessed compliance with the Employment Equity Act. This was an important tool to give certainty in the labour market.

The Chairperson said the ANC agreed to the clause as it was but it would note the DA’s disagreement.

Clause 21 Amendment of section 55 of Act 55 of 1998
Mr Groenewald said the DA was proposing the insertion of the deleted section 55(2).

Mr Jacobs said he did not agree because the insertion of section 55(2) would make the process much longer so he proposed to leave the clause as it is because it made the work easier and smooth.

The Chairperson said the ANC agreed to the clause as it was but it would note the DA’s disagreement.

Members agreed to clause 22, 23, 24 and 26.

Clause 27 Substitution of Schedule 1 to Act 55 of 1998
Mr Lees said the DA proposed amending clause 27 so that it would not be linked to turnover since turnover did not result in profitability. It was proposing for a maximum penalty instead of one that was linked to turnover.

Mr Sibande said he did not think attaching permissible fines to turnover would be a problem and therefore he was proposing for the acceptance of the clause as it was.

Mr Jacobs said the amendments proposed by the DA were aiming to maintain the status quo. He proposed for the acceptance of the clause as it was.

The Chairperson said the ANC accepted the clause but it would note the DA’s disagreement.

Mr Lees said he concluded that there was a conscious rejection of the DA’s amendments.

Mr Jacobs said it was not correct for Mr Lees to make such a statement because Members were putting forward their motivation on why they disagreed to the DA’s amendments.

Mr Tau said he wanted it to be put on record that the ANC did not agree to any of the proposed amendments presented by the DA. It was quite clear that the DA had a particular interest in pursuing their own agenda and the ANC’s primary concern was supporting the working class. The ANC disregarded the DA’s proposals because its amendments sought to serve a particular group of people.

Mr Sibande said the Committee wanted to ensure that the laws were inclusive, they wanted to balance the lives of all South Africans which should be their main concern.

Mr Lees said he disagreed with that accusation because the DA was the party for all South Africans. The way to deal with disadvantage should not be race based and this Bill from its inception was race based.

Mr Jacobs said he disagreed with Mr Lees statement. This Bill was not a race based Bill but aimed to defend the working class.

Mr Tau denied elevating the race card in his previous statement. As a whole they were trying to build an equal South African society.

Mr Sibande said the key fundamental challenge was the implementation of laws and dealing with the issue of compliance which was affecting the economic development of the South African society, nowhere were they making it a racialized issue.

Members accepted clauses 28, 29 and 30.

Adoption of Employment Equity Amendment Bill [B 31B- 2012]
The Employment Equity Amendment Bill [B 31B- 2012] was adopted.

The Chairperson thanked the DOL for its presentation.

Mr Sibande thanked the Chairperson for her conduct during the meeting.  it was unacceptable that during the process of the meeting, Members had spoken out of line.

The Chairperson thanked Members for their participation.

The meeting was adjourned.
 

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