Employment Equity Amendment Bill: proposed A-List

Meeting report

Opening remarks

The Chairperson greeted Members and requested the Secretary to take a roll call.

The Secretary noted the attendance of Members.  Ms Sueann Issacs, Parliamentary Legal Advisor, represented the Office of Constitutional and Legal Services in Parliament (OCLS). Mr Thembinkosi Mkalipi, Chief Director for Labour Relations, stated that he was representing the Department of Employment and Labour (DEL). Guests introduced themselves.

Briefing by the Legal Advisor

Ms Isaacs informed Members that the Committee would look at the A-list which contained the amendments agreed to by the Members.

The A-list began with technical instructions. It had to be read in conjunction with the Employment Equity Amendment Bill [B 14—2020]

1. Clause 4

1.1 Amendment to clause 4, page 3 omit fully from line 14 subsection 2:

(2) The Minister may prescribe criteria that must be taken into account in identifying sectors and sub-sectors for the purposes of this section.

1.2 Omit subsection 4(3), p3 line 16. Substitute with following subsection:

(3) The Minister may, after consulting the relevant sectors and with the advice of the Commission, for the purpose of ensuring the equitable representation of suitably qualified people from designated groups at all occupational levels in the workforce, by notice in the Gazette set numerical targets for any national economic sector identified in terms of subsection (1).

There were two changes. The words” National Minimum Wage” were removed and replaced by the “Employment Equity” Commission. The words “Employment Equity” were not written in full as the Employment Equity Act defined the Employment Equity Commission as “Commission”.

The second change was to include the reference to the relevant stakeholders as proposed by the Department.

2. Clause 10

1. Clause 10(a): subsection 1 on page 4, line 50 would read as follows in the Bill:

‘‘(1) A labour inspector, may serve a compliance order on a designated employer in the prescribed manner if that employer has failed to comply with section 16, 17, 19, 22, 24, 25 or 26 of this Act.’’;

Ms Isaacs explained that it was agreed to remove “or any person acting on behalf of a labour inspector” from the subsection.

3.Clause 11

The Committee agreed to reword (aA) page 5 line 5:           

‘‘(aA) whether the employer has complied with a sectoral target set in terms of section 15A applicable to that employer;’’.

The wording had been “whether or not…” The words “or not” had been removed.

4. Clause 12

Clause 12 refers to section 53(6) of the principal Act which presented all the criteria to be met for a certificate to be issued by the Minister for a company to do business with the state. The Committee agreed to change the time period relating to a CCMA award from three years to 12 months. Section 53(6)(d)  on line 19 and (e) on line 22 would now read as follows:

 (d) there has been no finding by the CCMA or a court within the previous 12 months that the employer breached the prohibition on unfair discrimination in Chapter 2;

(e) the CCMA has not issued an award against the employer in the previous 12 months for failing to pay the minimum wage in terms of the National Minimum Wage Act, 2018 (Act No. 9 of 2018).’’

New amendment

Ms Isaacs said she had picked up a technical amendment in the long title of the Bill. The long title was a summary of key aspects of the Bill so section 53(6) that dealt with the certificates that the Minister had to issue was a key aspect of the Bill, but it was missing from the long title. She suggested an amendment to the long title, i.e. after the word “groups” to insert “to provide criteria for the Minister to issue certificates”.

The long title would then read:

To amend the Employment Equity Act, 1998, so as to amend a definition; to insert certain definitions, to substitute a definition and to delete a definition; to provide for the Minister to identify sectoral numerical targets in order to ensure the equitable representation of suitably qualified people from designated groups, to provide criteria for the Minister to issue certificates; and to provide for matters connected therewith.

Ms Isaacs indicated that she had presented the entire A-list.

The Chairperson asked Ms Isaacs to clarify, for the sake of Members, where they would find the long title in the Bill.

Ms Isaacs pointed the Committee to the paragraph on page 2 of the Bill, immediately below the word “BILL”.

Discussion

The Chairperson called for comments

Mr M Bagraim (DA) understood the amendments that had been made but that he wanted it on record that he did not agree with employment equity in the first place as it was social engineering and, secondly, the amendments taking place to the equity legislation was fruit from a poisoned tree. It was known that, throughout history, social engineering had never worked and never could work. That had been seen in apartheid where it had been dangerous and it had been seen in the holocaust carried out by the Nazi regime, which was also social engineering. In the light of that he wished to record his objection: he objected to the amendments and to the legislation in the first place.

Mr M Nontsele (ANC) supported the amendments in full, except point 2, i.e. subsection 4(3), p3 line 16 where the legal advisor had presented the amendment as : “ … and with the advice of the Commission …”.  It had not been explained that it was the Employment Equity Commission. Was it an omission or would the Commission be identified in the interpretations in the Bill?

Ms C Mkhonto (EFF) noted that the previous day, the Committee had sought a better word than “satisfied” as in “if the Minister is satisfied”. She had anticipated that the Legal Advisor would have come up with a better word. “Satisfied” suggested a personal feeling. She was aware that there had been a motion to retain the word the previous day, but had hoped that the Legal Advisor could present some options for the word and the Committee would then be able to determine whether the word could be replaced. Apart from that concern, she agreed that the other amendments were as agreed upon the previous day.

Ms H Denner (FF+) asked what the criteria was for “suitably qualified” in section 15A. In addition, she stated that the Department and government was over-regulating the labour sector which would lead to more job losses. The strengthening of the employment equity legislation would lead to more job losses. She objected to the legislation and wanted that to be placed on record. Amendments to the Act should not even be considered.

The Chairperson asked if Ms Mkhonto was seconding the additional technical amendment.

Ms Mkhonto agreed that she was.

The Chairperson stated that she would allow Mr Mkalipi to explain “satisfied” and “prescribed”, although the latter had not been raised the previous day as it should have been.

Ms Mkhonto interjected, stating that Mr Mkalipi had explained the word “satisfied” the previous day, but Ms Isaacs had said that another word could be used in place of “satisfied”. That was what she was looking for.

Dr M Cardo (DA) said that Ms Isaacs had suggested that everything on lines 11 and 12 after the word “if” in section 53(6) could be deleted, i.e. “the Minister is satisfied that” . The subsection would read as follows:

‘‘(6) The Minister may only issue a certificate in terms of subsection (2) if:”

That would be followed by the list of criteria to be satisfied. That would address the challenge of the word “satisfied”.

Mr Nontsele stated that he wanted to protect Ms Isaacs because what Dr Cardo had said was not true.  Ms Isaac had not said what Dr Cardo said.

Dr Cardo interjected suggesting that the Committee listen to the recording.

The Chairperson called for order and asked Members to maintain cool heads, even though Bills tended to lead to emotions running high. She asked that Ms Isaacs be permitted an opportunity to respond to the questions put to her.

Ms Isaacs explained why only the word “Commission” was used and not Employment Equity Commission. Members had to remember that it was an Amendment Bill. The principal Act was already in operation and there were various definitions in the Act. Ms Isaacs read the relevant definition from the Act in which the Commission for Employment Equity was abbreviated to Commission:

“"Commission" means the Commission for Employment Equity, established by section 28;”

Ms Isaacs explained that when the Amendment Bill was read as an Amendment to the Act, that definition would apply to the relevant subsection.

Regarding the phrasing of “satisfied”, she stated that Members could, indeed, leave out the word “satisfied” and the meaning would not change. The concern, the previous day, had been that “satisfied” implied that the Minister had discretion, while the criteria were, in fact, quite objective. The Committee had not agreed to that proposal the previous day.

Ms Isaacs asked for greater clarity as to what Ms Denner was referring to by “suitably qualified people”.

The Chairperson said that she did not see “satisfied” as a personal opinion. The word was used in a court of law, and the expression “satisfy oneself” was frequently used. She pointed out that the word did not change the meaning of the content and so, Members could address that point during the debate.

Mr Mkalipi explained that “suitably qualified” was defined in the definitions of the principal Act. He quoted section 1: “-suitably qualified person means a person contemplated in sections 20(3) and (4); "this Act" includes any regulations made under section 55, but excludes any footnote;”

He then quoted section 20(3) and (4):

(3) For purposes of this Act, a person may be suitably qualified for a job as a result of any one of, or any combination of that person's-

(a)      formal qualifications;

(b)     prior learning;

(c)     relevant experience; or

(d)     capacity to acquire, within a reasonable time. the ability to do the job.

(4)     When determining whether a person is suitably qualified for a job, an employer must-

(a)     review all the factors listed in subsection (3); and

(b)    determine whether that person has the ability to do the job in terms of any one of, or any combination of those factors.

Mr Mkalipi stated that those sections were already in the Act and they were not being amended.

The Chairperson said that she noted that Members had already started raising objections, even to the Amendment Bill itself. However, it was not the appropriate time to raise objections. Those objections could be raised when the Bill was presented for adoption in the House. She asked for confirmation that the A-List could be adopted.

The Chairperson asked Ms Isaacs to confirm that the Committee could adopt the A-List so that the B-Bill could be finalised.

Ms Isaacs confirmed the process. She stated that if the A-list was adopted, she would present the B-Bill at the next meeting of the Committee for its adoption.

Resolution

The Chairperson put the A-List to the Employment Equity Amendment Bill to the Committee. Mr S Mdabe (ANC) formally moved for the adoption of the A list. Ms A Zuma (ANC) formally seconded the adoption of the list.

The A-List to the Employment Equity Amendment Bill was adopted by the Committee with objections by the DA and FF+, while the EFF abstained from voting.

The Chairperson explained that a Committee Report would also be prepared for adoption once the Bill had been adopted.

She recorded her dissatisfaction and discomfort that the Department had not sent a legal person to accompany Mr Mkalipi, although she did not underrate his abilities.

Closing remarks

The Chairperson asked Ms Isaacs who was to take the Committee through the Compensation for Occupational Injuries and Diseases Amendment (COIDA) Bill.

Ms Isaacs stated that Adv Nathi Mjenxane would take the Committee through COIDA Bill.

The Chairperson hoped that Adv Mjenxane had been following the Committee’s work. She thanked Ms Isaacs for the work that she had done on the Employment Equity Amendment Bill. She asked Members to be ready for the deliberation of COIDA the following Wednesday at 10 am.

The meeting was adjourned.