Employment Equity A/B & Compensation for Occupational Injuries And Diseases A/B Bill: summary on submissions received

Meeting report

The Chairperson welcomed Members of the Committee. The Chairperson expressed Members be attentive as they would be taken through sections of the Bills that have been amended, so that Members may thoroughly analyse the submissions given during their spare time. No questions of clarity would be asked in the meeting. It is only during the public hearings that Members make ask those who make submissions questions.

The Department [of Employment and Labour] has an electronic file and not a hardcopy file of the documents and Bills. This is because of Parliament’s no paper trail system that has been phased in, to encourage the fourth industrial revolution. If Members’ are in need of documents, they may access an electronic version.

Compensation for Occupational Injuries and Diseases A/Bill [B21-2020](COIDA) Submissions

The Committee Content Advisor reported on the written submissions from COIDA. The Bill was introduced to the National Assembly on the 27 August 2020 as a proposed section 75 Bill which is an ordinary Bill not affecting the provinces. The Bill was received by the Portfolio Committee and Employment and Labour on 10 September 2020. The Committee has received 86 submissions on COIDA. Objectives of the Bill:

(a) Extend the coverage for occupational injuries and diseases to previously excluded vulnerable workers as well as the improvement of compensation benefits to employees;

(b) Link to key target Chapters 10 and 11 of the National Development Plan 2030;

(c) Align the Act with the requirements of other legislation and to remove ambiguities on some of the provisions of the Act;

(d) Empower the National Economic Development and Labour Council (NEDLEC) to nominate persons from whom members of the Board [may be appointed];

(e) Provide for the term of office of a Board Member to be limited to two terms;

(f) Provide for the disqualification from membership of Board Members, resignation and removal from and to introduce rehabilitation, reintegration and return to work in order to address the tendency of some employers to dismiss employees on the basis of occupational injuries or diseases

Most of the submissions received were found in clause 43, and most of the submissions were from service providers and credit funders. There are two major key funders: COID Link and COMSOL. COID Link constituted 37% of submissions and 14 written submissions came from COMSOL, which constitutes 16% of overall submissions. The submissions from the two funders were 46 which constituted 53% of all written submissions. Clause 43, from which most of the submissions are objecting to, seeks to amend section 73 of the principal Act. Section 4 of clause 43 states that:

 “Any provision of any agreement existing at the commencement of this Act or concluded thereafter in terms of which a service provider cedes or purports to cede or relinquishes or purports to relinquish any rights to medical claims in terms of this Act, shall be void”

The objections from most pre-funders is that if this amendment is implemented, it will firstly be near impossible for their practices to continue treating injury on duty patients. Secondly, the impact of the current state of the economy of unemployment due to the impact the Covid-19 lockdown will become overwhelming.  If they consider not treating injury on duty patients, their practises will be forced to close.  The submissions have raised a constitutional issue with regards to the clause. In relation to the section in the Constitution, which talks of rights to choose a profession provided for in section 22 of the Constitution, the submissions say that section of the Constitution will be violated in terms of the amendment of clause 43. Clause 43 was the major objection of all the written submissions on COIDA.

Clause 43 (4) also raised the challenge of an application of cession which would need to be applied retrospectively. There are fears that they are already owing pre-funders which is a lot of money they will need to refund if the clause is passed.

Most of the amendments were welcomed. For example, section one defines who is an employee. The amended section has included domestic workers under the definition of an employee. Majority of the submissions received strongly welcomed the long overdue inclusion of domestic workers. They proposed the Department needs to embark on an advocacy campaign or awareness campaign because there is a view that most of the domestic workers may not be aware of the current development and their rights with accordance with this law.

17 organisations and individuals made requests for oral submissions, which constitute 19% of the submissions.

Employment Equity Amendment Bill submissions

The Committee researcher reported on the submission on the Employment Equity (EE) Amendment Bill.   23 submissions were received on the Bill. 15 of those submissions requested to do oral presentations – this was mostly organisations. Individuals wrote they would not like to give oral submissions as they felt their written submissions were adequate for the Committee to get information on the Bill. All 23 submissions supported issues addressing inequalities in society and the workplace however they wanted it to be done in a manner that does not undermine the economy and should be constitutional.

56.5% of the submissions were not in support of the amendment and 43.5% were in support of the amendment. People who were not in support highlighted that the Bill was published in a challenging microeconomic environment and as a result of its timing, has unintended consequences on businesses. The proposed amendments are being considered while South Africans are in the midst of a global pandemic given the fact that Covid- 19 had a negative effect on the lives and livelihoods of employers and employees and as a result it puts strain on the employers. Employers are struggling to keep companies afloat and secure jobs. Many employers face increased uncertainty and financial pressures which may last beyond the pandemic. They expressed that the proposed changes to the Bill will not be feasible in the next three years since it will result in the loss of production capacity, revenue and jobs.

Most people who were not in support of the Bill are against section 15. Section 15 absolves the Minister and authority to identify the national sectors and sub-sectors to ensure equitable representation of qualified people. Persons who were not in support expressed that the representations differ from certain regions, and that numerical targets will be impossible to achieve in ensuring the equitable qualified representations of people from related groups in the  workplace. The submissions highlighted a need for a joint consensus keeping approach for the targets to be achievable. They found that the 30 days will not be sufficient for significant engagement in the particular area.

They argue it is essential that all sectors and industries are equitable and consulted so they can share meaningful information regarding the conformity of the industry and economy and the state of transformation in the particular sector and challenges that are faced within that sector. They argue that each industry is different from the other and the Minister may not have an understanding of each industry. Some argued that in terms of the amendment of section 1, where they defined a designated employer, it has been revised to omit the companies of the Act with more than 15 employees. They expressed that when one excludes smaller companies, due to flexibility and administration, it may make companies not want to hire more individuals to avoid the cumbersome administration – this will affect job creation. They supported the amendment including all small business, even the ones that have less than 15 employees.

They argued on sections 14, 15, 43, and 20 – matters dealing with compliance and turnaround time. They found that the processes will be demanding on the Minister or whoever the Minister will allocate to oversee compliance. They expressed that the Bill does not articulate the process and they want the process to be clearer. They alerted that this issue becomes another barrier to the BEE policy that is already in place, which all other polices need to be in line with in order for them to work especially the one in construction, IPP and renewable energy. Lastly, all submissions supported the need to fast track transformation across sectors however they argued it must be done in a just and constitutional manner that does not undermine the economy. The key sections that were expressed and contested were sections 1, 2, 3, 42, 20.

Discussion

The Chairperson expressed that in their own time, Members, as individuals or guided by political organisations, will measure the submissions and what has been proposed by the Department through the amendments. The Chairperson spoke of the process to be followed regarding the Bills. The Committee will have meetings for oral submissions. The Committee will listen and engage. The Department will also be allowed to raise issues of concern guided by the Committee’s legal team. Once all oral submissions have been dealt with, the Committee will sit and deliberate. Thereafter, the report will be tabled. The Chairperson encouraged Members’ to be present and engage during the deliberations to ensure that they have legislation that will change the social conditions of South Africans.

The Chairperson allowed for questions regarding the process of the Bill.

Dr M Cardo (DA) asked when the Chairperson thought they would begin processing the Bills. He sees that Parliament is due to rise at the end of next week which is during the constituency period. He wanted to know if the Chairperson has an idea of when the Bills will be debated in the National Assembly.

The Chairperson responded that she would have to consult with the powers that be as they have a lengthy constituency period however Members were encouraged not to do Committee work during the constituency period. The Chairperson will be guided by what the Chief Whip will advise.

Ms C Mkhonto (EFF) requested the list of individuals of those who requested to make oral submissions. She requested the names of the individuals or parties.

The Chairperson requested the Committee section circulate the list of name to Members.  

The meeting was adjourned