Briefing by DoL on the Employment Equity A/B [B31B-2012]

Meeting Summary

PMG did not attend this meeting as it was held outside of Parliament. The minute below was provided by the Committee Secretary. 

PRESENT

Hon MP Themba                             Mpumalanga

Hon MP Sibande                            Mpumalanga

Hon MP Jacobs                           Free State

Hon L Mabija                                Limpopo

Hon Z Mlenzana                             Eastern Cape

Hon O De Beer                               Western Cape

APOLOGIES

Hon RJ Tau                                       Northern Cape

Hon DB Feldman                          Gauteng

Hon HB Groenewald               North West

Hon MMM Zulu                      KwaZulu Natal

GUESTS FROM THE DEPARTMENT OF LABOUR

Mr T Mkalipi                           Deputy Director General

Ms Ntshoza                                        Deputy Director General

Mr M Moremi                         Deputy Director General  

Mr X Mnene                                       Parliamentary Liaison Officer

Parliamentary Support Staff

Eric Boskati                                       Content Advisor

Phumelele Sibisi                               Secretary

Gunther Mankay                                Assistant

Minutes

The Chairperson of the Committee, Hon MP Themba opened the meeting by firstly welcoming all in attendance and allowing members of the committee to introduce themselves followed by the Department of Labour’s delegation. After which the Chairperson handed over to the Acting Deputy Director General of the Department of Labour Mr T. Mkalipi to present the Employment Equity Amendment (EEA) Bill referred to the Committee by the National Assembly for concurrence. 

Mr Mkalipi pointed out to members of the Committee that, amendments to the Employment Equity Act, 1998 are meant to achieve the following objectives:

• To give effect to fundamental Constitutional rights, e.g. right to equality, fair labour practices and protection against unfair discrimination
• To strengthen the implementation and enforcement mechanisms of the EEAct, e.g. increased fines for non compliance, and also
• To ensure South Africa’s compliance with international Labour Standards (conventions 100 and 111)

According to Mr Mkalipi, Section 1 of the Bill revises the definition of designated groups. According to this definition beneficiaries of Affirmative Action are limited to persons who were citizens of South Africa before the democratic era (April 1994), or those who would have been entitled to citizenship, but due to apartheid policies could not. Section 6 (1) of the bill is amended to clarify unfair discrimination either onground listed in the section or any arbitrary ground. This amendment is consistent with the terminology of section 187 (1)(f) of the LRA which prohibits discriminatory dismissals.

The Bill also proposes Section 6 (4) as a new insertion. The section explicitly deals with unfair discrimination by employers in respect of terms and conditions of employment of employees doing the same work, or work of equal value. Differences in pay/conditions of work between employees performing the same or substantially the same work or work of equal value will amount to unfair discrimination unless the employer can show that differences are fair and are based on experience, skill, responsibility and qualifications. Subsequent to that, Section 6(5) is also inserted, to enable the Minister of the Department of Labour to issue a regulation dealing with the criteria and methodologies for evaluation of work of equal value.

Section 8 of the Bill deals with psychometric test and similar tests of employees and proposes that only psychometric test and similar assessment tests certified by the Health Professions Council of South Africa (HPCSA) or another body which is authorised to certify such tests may be used to test employees. Concluding his presentation Mr Mkalipi referred members of the Committee to Schedule 1 of the Bill which is amended to adjust the maximum fines that may be imposed for contravention of the Act to reflect inflation adjustments. As an addition in determining the fine, the employer’s turnover may also be taken into account where gross failures to comply with the Act exist.

Discussion

The Chairperson of the Committee, Hon MP Themba then told the members and all present that the meeting was meant only to brief the Committee on the objectives of the Bill. That a follow up meeting will delve deeply on the proposed amendments before the Bill is finalised. The Chairperson then opened the floor for clarity seeking questions as deliberations on the Bill will be entertained in the meeting scheduled for the following week as indicated earlier. 

Members of the committee wanted to know what the bill means by “arbitrary grounds” and why it is the onus of the employee to prove such discrimination. Members also wanted to know if the Bill (B31-2012) in its revised definition of designated groups changes the status of the Chinese community as beneficiaries of the affirmative action policy. Some members were concerned of job losses as some of the labour legislations already passed by Parliament are likely to do  especially in the mining sector. 

Mr Mkalipi responded by making examples of arbitrary discrimination such as if an employee is not related to the employer and as a result is paid less. The onus enables the employee to argue his case as the affected party and strengthens his case based on his experience of the discrimination. The Chinese community under the apartheid policy were classified as blacks and because of that the court ruled in their favour as beneficiaries along with all other groups classified as such. Some of the labour disputes that members referred to Mr Mkalipi could not respond to as he needed more information on the exact facts of the matter but promised to do so at a later date.

In closing the Chairperson thanked everyone present and also expressed her appreciation of the members’ availability  despite the fact that the meeting was convened at an inconvenient time (at night) and especially after a busy day.  She thereafter informed the members of the Committee that the Committee will make further deliberations on the Bill in the next meeting the following week. 

Adjournment

The Committee adjourned at 20:15.