Employment Equity Bill: hearings

Meeting report

LABOUR PORTFOLIO COMMITTEE
21 July 1998
EMPLOYMENT EQUITY BILL: HEARINGS

Documents handed out:

AIDS Law Project & AIDS Consortium
Black Management Forum
Business South Africa
Communtiy Law Centre: Women & Human Rights Project
COSATU
Emerging Business Front
Employment Equity Alliance
FEDUSA
Gender Research Project
Human Rights Committee
MANCO-FIBASA
National Association of Democratic Lawyers (NADEL)
National Federated Chamber Of Commerce (NAFCOC)
Society for Industrial Psychology
South African Catholic's Bishops' Conference (SACBC)
South African Council of Churches (SACC)
South African Human Rights Commission (SAHRC)
South African Insurance Association

GENERAL COMMENTS
The Chairperson, Mr Godfrey Oliphant, explained the schedule for this Bill.
The committee plans to finalise the report on comments either by Tuesday, 28 July 1998. The Bill is scheduled for proofreading in the National Assembly on 20 August 1998, but the chair would like to see this date possibly moved up to 6 August 1998, in order to start work on the Skills Development Bill.

MINUTES
1. Department of Labour (Mr S Pityana: Director General)
Mr Pityana's introduction covered the constitutional framework of the Bill and the use of racial classification in order to achieve substantive equality. The demographic profile of the economically active population is the barometer for the Bill, inter alia, as a way to take into account regional circumstances. He emphasised that it is not a quota system that is being introduced, but the development of targets by employers themselves, in consultation with their employees. He also mentioned the development of the black elite, versus the alleviation of poverty. He further emphasised that the Bill aims to give all levels of the workplace access to grading, training and promotion opportunities, while also assuring that the management strata does not remain white and male. With regard to the wage gap, it was stated that a range of policy instruments is being used by Government to address the problem, while it is still keen to discuss with labour and business possible adjustments to the Bill to address this issue.

The Committee had a debate about the fact that no written form of Mr Pityana’s submission was available. T Leon (DP) and T King (NP) were the main participants in this debate. The Department indicated that the written document would be available later that day. (This was indeed the case.)

The Director-General highlighted the changes in the previous drafts and current draft of the Bill. They include the following:
Definitions:
p6, bottom: definition of "designated employer" changes to include the turnover criteria.
p.10 "reasonable accommodation" changed to refer to all designated groups, not only the disabled
"representative trade union" changed to include the qualification of registration
clause 2 : purpose of the Bill not to achieve "equality", but "equity"
clause 6(4): recognises the ways in which the employer must address unfair discrimination with regard to wage differentiation.
clause 8: inclusion of psychometric testing
clause 10: disputes be referred to the Department; then if the dispute remains unresolved after conciliation, dispute be referred to Labour Court
clause 11: burden of proof changed to employer where unfair discrimination is "alleged."
clause 17: matters on which employer must consult
clause 21: reporting duties now differ according to size of the business.
clause 28: with regard to appointment of the Commission, all delegates must now have "due regard" to representivity of the designated groups in their delegations.
clause 29 (2) b included

Questions
DP asks explanation of the inclusion of s6(4), namely the wage differentiation in the chapter on the prohibition of unfair discrimination.
Answer: The issue of wage determination not just an issue of supply and demand. In South Africa there is a history of the abuse of cheap labour, therefore important to include in Bill of this nature. Notes the different means that can be used to address wage disparities, including collective bargaining.

DP asks why, in definition of designated employer, the definition of small business for turnover purposes done in terms of other piece of legislation, when this previously thought not to be prudent, and how they indeed determine turnover.
Answer: Confirms that determined in terms of Small Business Act. Notes that still thousands of businesses excluded from the ambit of the Bill, in spite of new turnover standard.

DP: raises BSA claims that the Bill doesn’t reflect the agreement reached at NEDLAC.
The Chairperson warns against playing Department off against other participants in the process.
Answer: The Bill is indeed the result of the process at NEDLAC.
(Mr Leon indicates that he is unhappy with the answer, in that it does not clear up the dispute of fact raised)

DP asks whether they considered individualising discrimination, in stead of dealing with the three designated groups. Notes that the Constitution stipulates many more grounds of discrimination, and that, on the other hand, many people may fall within one of the three groups, and may not in fact have suffered discrimination.
Answer: Roots of the Bill in the recognition of the disparities of the legacy of Apartheid. Personal advantage/disadvantage not the focus.

NP asks to explain the shift in the burden of proof in clause 11.
Answer: Difficult to prove discrimination without such an onus.

ANC asks why the exclusion of independent contractors, and how the designated groups chosen.
Answer: Do not want means test; who would fall within the ambit of the Act in terms of race, sex or disability is clearer.

2. NAFCOC and BSA
Both the National Federated Chamber of Commerce (NAFCOC) and Business South Africa (BSA) support the purpose and spirit of the Bill, however Business South Africa expressed great dismay over the disparities between the agreement reached at NEDLAC and the Bill.

Questions:
DP asks what number of businesses employ over 150 persons, and would they be capable of enforcing the Bill.
Answer: Differs from sector to sector. Furthermore, certain sectors have small enterprises with high turnovers, but very low profit margins. Because of government’s positive steps toward encouraging the growth of small enterprises, probably significant changes since the previous statistics were taken in 1994.

DP asks whether, in their opinion, the Bill is constitutional.
Answer: In their opinion it does comply with the Constitution.

DP asks BSA to elaborate on the process within which the inconsistencies between the Bill and the NEDLAC agreement originated.
Answer: The negotiators at NEDLAC did not see the final Bill, and did not pick up the departures from the NEDLAC agreement until now. They are, however, in discussion with the Government to rectify the situation, and BSA asked this committee to assist them in that process.

DP asks whether BSA supports a sunset clause.
Answer: Do not believe that the Bill should exist in perpetuity. It is however difficult to determine what period should be set out in such a clause. This should perhaps be revisited.

DP asks whether, in case of a transgression by a corporation, the whole corporation will be unable to enter into a contract with the state.
Answer: Do not think that the absence of a certification of compliance necessarily excludes the possibility of entering into a contract with government. Government has a prerogative in this regard.

DP asks how the Bill might affect the international credit rating, the currency situation, the economic growth of the country and the flexibility of the labour market.
Answer: The Bill could be counterproductive if it leads to increased costs and management hassle, as this could be an incentive to employ. The upside was, of course that the Bill could lead to better industrial relations, which in itself could lead to enhanced productivity. BSA not sure of the effect on the credit rating, but it is a factor that they are concerned about in general.

ANC asks to elaborate on the definition of "suitably qualified persons".
Answer: BSA supports the definition agreed upon at NEDLAC.

3. Commercial and Allied Employers Organisation of South Africa
(written submission included, oral submission suspended)

4. MANCO & FIBASA
These organisations explained that they represent small business. They foresee an immediate problem in the bureaucratic burden imposed on small businesses. They aver that small businesses have enough problems as it is in retaining existing employees, and that the Bill's requirement that they change the racial composition of the workplace in present economic circumstances would therefor not be viable and not produce any useful results. The five-year target would furthermore not be possible to meet. They identify the main need to be job creation. They also mention that they cannot participate in the NEDLAC process, and therefore have no freedom of choice in terms of the decisions made by big business.

5. Employment Equity Alliance (EEA)
The EEA commends and congratulates government, business and labour on the Bill. The Alliance endorses the purposes of the Bill, including the prohibition of unfair discrimination and affirmative action. The Alliance endorses the proposal made by Disabled People South Africa that time-frames for targets relating to the employment of people with disabilities be set in the Bill. It further proposes that the Human Immuno-Deficiency Virus be regarded as a disability for the purposes of the chapter on employment discrimination. The Alliance further asks the committee to take cognisance of the recommendation that black women be regarded as a designated group for purposes of analysing equitable representivity of black women and black, disabled women in the workplace.

With regard to enforcement as provided for in the Bill, the Alliance submits that the mechanism is too limited, and that they need to be reinforced. The EEA also proposes that all parties who nominate persons to serve on the Commission must include a majority of members from designated groups in their nominations lists. The Minister must also ensure that the Commission as a whole includes a majority of women and black people and a significant number of people with disabilities.

With regard to the definition of "family" and "partner", the EEA recommends the inclusion of "spouse" and "partner" in order to address the position of gay and lesbian partnerships.

6. National Association of People Living with Aids (NAPLA)
With regard to training and promotion NAPLA deems it as discriminatory to treat persons living with HIV/AIDS differently, because of the fact that most people only work for an employer for an average of about 4/5 years. NAPLA asks that the Committee introduces HIV as a disability for the purposes of unfair discrimination only. The current definition of "disability" is too narrow to accommodate the realities of 1 500 persons per day who are infected by HIV and who suffer discrimination in that they have restricted access to the labour market because of pre-employment testing. They underline that disability does not mean incapacity. The Bill does not refer to HIV in the section on unfair discrimination or with regard to the issue of medical testing. This is not in line with the report of the South African Law Commission on the matter. It is in the public interest that people living with HIV/AIDS stay economically active. The reality is furthermore that the culture of secrecy and silence surrounding HIV/ AIDS has the effect that people who are in the work-force live in fear because of the very real sanctions and perceptions that they will have to face. Legislation must create an environment within which people can disclose their status without facing discrimination and stigma.

HIV testing is not acceptable. There are very few jobs for which such testing would be justified as an inherent requirement of the job. In such cases, NAPLA proposes that it is the employer who must approach the Labour Court and prove that it is indeed an inherent requirement that a test be performed. The current proposal in the Bill is that the onus is on the employee to prove his/her claim in front of the CCMA.

One must be aware of the fact that HIV/AIDS could become the new apartheid in terms of the discrimination suffered by affected people be it in terms of education, finance and employment, if it is not addressed adequately in legislation.

NAPLA accordingly proposes the following:
- that the definition of "people with disabilities" be amended to include people with HIV/AIDS. The definition of disability must reflect the fact that the physical and psychological state of a person is affected from the day he/she is infected.
- Section 6 must be amended to include that HIV be recognised as a disability for purposes of the chapter on unfair discrimination.
- the section on medical testing must require that the onus be on the employer to prove that it is required in the circumstance. In this regard NAPLA supports the proposal of the Aids Legal Network that all forms of HIV testing, including lifestyle questioning, should be prohibited.

Questions:
ANC asks to explain point made about the shifting of the onus.
Answer: Reiterates that because of the vulnerable position of the employee, the onus should be on the employer to prove that medical testing is justifiable, and that this must be done in the Labour Court.

7. Association of Personnel Organisation of South Africa (APSO)
APSO represents organisations who act as temporary and permanent employment agents. They contend that temporary employment services (TES) should not be covered by the Act in the same way as other employers. This contention is supported by the fact that it is unclear who the employer is and where the workplace is. Furthermore the TES does not have any control over the client-employer or the workplace within which the client-employee will be employed. APSO does however suggest that the permanent administrative staff of the TES should fall within the definition of employees for purposes of the Act.

They suggest that section 54, which provides for separate and simplified forms and procedures, should be amended to include within its scope provision for any TES defined in terms of the Labour Relations Act as a designated employer.

Questions:
ANC asks why this submission was not made at NEDLAC.
Answer: APSO did make these representations via BSA, although there were subsequent amendments that affect their position.

ANC asks for clarity on why they submitted that they had no control over the number of people in their employment.
Answer: The employment success of the TES varies from day to day. Difficult to predict.

ANC asks to explain the role of consultants within the TES.
Answer: They are full-time permanent employees of the TES and should be covered by the provision of the Bill.

ANC asks who could be identified as the legal employer of people being placed in workplaces by a TES.
Answer: The TES.

8. South African Insurance Association (SAIA)
SAIA represents short-term insurance companies. They are a member of BSA, and as such support the representations made by BSA. They do, however, have specific reservations about the Bill. These include concerns over the turnover threshold included in the Bill. Where 44% of their membership was included within the ambit of previous drafts, 98% is now affected. They illustrated that some of their members have more than R10 million in turnover, while employing under ten, or even no employees. They further raise the point that, even in cases of high turnover, the profitability of the business of their membership is low, and that the Bill could therefore bring their future viability into question.

They are further concerned that the turnover threshold could act as a disincentive for investors in insurance. They therefore ask that the Bill be amended to return to its original form, i.e. only determining applicability of the Act in terms of number of employees.

Questions
ANC asks what their position is on the effect of the Bill on brokers.
Answer: Brokers are separately represented.

9. Emerging Business Front (EBF)
The EBF is concerned that the Bill in its present form would place a burden on small and medium-sized enterprises that would lessen their effectiveness as job creators. and as contributors to the fiscus and national wealth overall. Particularly, administrative burdens as set out in clauses 16-20 of the Bill would be impossible for small enterprises to meet. The time limits for referrals of disputes to the CCMA, namely 12 months after the act or omission in the case of unfair discrimination, is too long, as it is difficult for the SME to keep proper track of the dispute over such a period. It is suggested that the employment equity plans only be required from employers of more than 1000 employees, and that the plans should not state numerical goals.

The EBF further highlighted the problems with the CCMA itself, which is underfunded and overburdened. The CCMA should be "beefed up," or alternative bodies be formed. They highlighted examples of bad drafting, including poorly-defined and open-ended concepts, e.g. "reasonable" "full consultation process" etc. The EBF further avers that the legislation is racially discriminating, and aimed at social engineering.

The EBF mentions the fact that the Minister has sweeping powers in terms of the Bill. In so far as the Minister is informed by the decisions of NEDLAC, EBF points out that NEDLAC does not adequately represent SME’s. The EBF further asks for the exemption of emerging businesses from the provisions of the Act for a period of five years from their inception. The Act itself should also only be implemented when it can be proven that there has been economic growth, as well as an increase in the creation of employment opportunities. The EBF also suggests the insertion of a sunset clause.

Questions
ANC asks EBF to explain the exemption of emerging businesses.
Answer: Emerging small business should be given a chance to get on their feet before all the requirements of the Act should be applicable.

ANC asks the EBF to expand on their suggestion of a sunset clause, and when this clause should come into effect.
Answer: As soon as it can be determined that the Act has been successful, its functioning should be suspended. The government should determine when this is the case.

ANC asks whether their proposal is that a new body be created in the place of the CCMA?
Answer: It could be a possibility to create a different administrative body. Alternatively, the CCMA could be strengthened in terms of finance and commissioners to accommodate the increased workload.

ANC asks whether suggestion #4 and #12 is the same?
Answer: Suggestion #4 refers to administrative duties, while #12 refers to duties in terms of the employment equity plan.

The ANC comments on the suggestion that the Bill be suspended until economic growth has been proven, namely that the people that the Bill purports to help, are already accusing the government of stalling the process.
Also, with regard to the comment on the CCMA, the Department of Labour has already indicated that certain disputes will be channeled through the Department themselves.
The question is asked when economic growth would be satisfactory, in light of the fact that there has been economic growth since the coming into power of the new government.
Answer: Most small business are shrinking/shedding jobs, and therefore it is the worst possible time to introduce the Bill, as this will imply further costs particularly in terms of time that will have to be spent, e.g. in consultation and reporting. as well as the possibility that an extra employee will have to be employed.

10. National Aids Convention of South Africa & Aids Legal Network
The two organisations submit that the Bill does not adequately reflect the position of persons with HIV/AIDS.

With regard to pre-employment HIV testing, the organisations support the intention of the Employment Equity Bill. The question is, however, whether the Bill will, in fact, prevent HIV testing. To address this issue, the submission is made that HIV should be specifically mentioned in the context of the discrimination provision. The definition of disability should be amended to include HIV/ AIDS, as well as to include the "perception of having a disability". Section 10 is furthermore too vague. Several exceptions to the rule against medical testing is mentioned. The danger is that the employer can regard too many situations as being "justified". As the provisions stand, it is within the discretion of the employer to decide whether this is the case. The organisations suggest that the onus be on the employer to prove justifiability, and that the categories of justifiable circumstances be reduced to only one, namely that it is an inherent requirement of the job.

The ALN asks that a clear distinction be made between HIV and AIDS. Once a person falls ill, the Labour Relations Act makes sufficient provision for such a situation. The period before that is, however, not currently addressed satisfactorily. The ALN also supports strongly the prohibition of pre-employment HIV testing, and proposes that the Bill requires that clear and sufficient justification of the test as an inherent requirement of the job, be required. Furthermore, the Bill should include HIV as a ground for discrimination purposes, although not for affirmative action purposes. Any exception to discrimination on grounds of HIV, should be justified as an inherent requirement of the job. ALN points out that in the definition of "employee" in chapter 2, applicants for jobs are included in clauses 6, 7 and 8 while this is not the case in terms of clause 1.

ALN also points out that the impact of HIV/AIDS on the labour market will be huge - in terms of time off required for family responsibility, funerals and taking care of orphans, the increase in training and recruitment costs because of persons leaving the labour market earlier, as well as in terms of the increased cost of medical care for those employees with HIV/ AIDS as well as for their dependents. The labour market should share some of this cost.

The independent research conducted on behalf of ALN points out that a significant percentage of employers would consider testing as a way to recruit. The ALN endorses the SALC report in its conclusion that widespread pre-employment discrimination exists against persons with HIV/ AIDS, and that 90% of such persons are unemployed or seeking employment. It is therefor important to have legislative clarity on the issue of pre-employment medical testing. The ALN proposes that the definition of medical testing in section 7 be amended to include all and any form of HIV testing. The Bill should also require that the employer not only have the onus on him/her to prove the justifiability of the test as an inherent requirement of the job, but that the Labour Court should be approached before the test to get permission to perform the test. The prohibition of unfair discrimination should be extended to include the protection of people with HIV/AIDS. This includes discrimination in terms of post-employment training.

Question:
The ANC asks whether the prohibition of pre-employment testing and the inclusion of persons with HIV/AIDS is not contradictory.

Answer: The organisations feel that this is not the case. If an employer becomes aware of the person’s HIV status in any other way, he/she may still not discriminate against such persons.

11. Women and Human Rights Project, Community Law Centre, UWC
The submission stressed the importance of defining indirect discrimination in such a way in the Bill that it addresses the difficulty of proof that disadvantaged groups face in such cases. Conducting expensive statistical research to determine the position of a comparator (particularly in cases of people belonging to more than one designated group) should not have to be necessary.

It is submitted that a provision requiring mandatory positive measures to achieve substantive equality in the workplace, is necessary. The concept of "reasonable accommodation", is currently only applicable to Chapter 3, dealing with employment equity plans. It is argued that it should also be included in the section on unfair discrimination. Not making reasonable accommodation for persons from designated groups should, in other words, be a ground for finding unfair discrimination. In determining the reasonability of such accommodation, it is suggested that the cost, outside sources of funding, health and safety requirements and any other relevant factor should be taken into account.

The submission proposes that the question of the "inherent requirement of the job"-defence should be re-examined to determine whether the defence should be possible in the case of discrimination on the grounds of race. It also points out that the defence in cases of sex discrimination could very well lead to the perpetuation of stereotypes regarding women, if it is allowed in cases where the case is based on socialised differences between men and women. The defence should only be allowed where the job requires a man or women for biological reasons, which does not include attributes of strength or stamina. The submission therefore includes a formulation of the inherent requirement defence which addresses these issues in a very specific formulation.

Sexual harassment as dealt with in the current Bill, causes some concern. The current formulation, which requires that sexual harassment be dealt with under the Labour Relations Act under the residual unfair labour practice provision, could leave some persons without a remedy. Sexual harassment that results in an unfair dismissal claim can be brought under the provisions of the Labour Relations Act. However, as the unfair labour practice jurisdiction of Labour Relations Act will be removed through this Bill, and the Code on Sexual Harassment (which only has persuasive value) be appended to the Labour Relations Act, the result could be that persons with claims which did not result in dismissal could be left without a remedy. The proposal is that this defect be corrected so that harassment claims can be dealt with under the Employment Equity Bill.

Failure to pay equal pay for work of equal value should be included in the definition of unfair discrimination.

Assessment of compliance with the act, with regard to the equity plans of employers, should be done in relation to the yardstick of the demographic profile of the national en regional population. The reference to the economic active part of the population should therefore removed.

The submission proposes certain changes to the definitions in the Bill, including that of "pregnancy" (to include the termination of pregnancy, as well as potential pregnancy) and family responsibility (to address the position of spouses and partners, as well as that of the extended family.)

Questions:
ANC asks to explain the concept of equal pay in cases of so-called "female jobs" where those jobs are in fact now also done by men (e.g. male and female nurses).
Answer: The international experience shows that the fact that these jobs were devalued because of their traditional female nature could be addressed effectively through litigation on equal pay grounds, if legislation would allow for choosing a comparator in another sector (e.g. comparing a psychiatric nurse with a psychiatrist). Wage disparities that are addressed through collective bargaining often disadvantage women, because it is known that it often entrenches the inequality between men and women.

ANC asks how to deal with the question of indirect discrimination if they themselves admit that it is difficult to prove.
Answer: The concept should therefore be defined expressly to assist the Labour Court as well as commissioners. The onus suggested should also alleviate the problem.

South African Council of Churches
The SACC strongly supports the Employment Equity Bill, but calls for the strengthening of the Bill with regard to a few issues. The first of these is the issue of multiple employment barriers. The SACC suggests that employment equity plans should give highest priorities to the hiring of individuals who have faced the greatest disadvantage in the past. At a minimum, black women should be recognised as a distinct designated group. The SACC further suggests that the Bill be amended to promote the adoption of more equitable wage scales, by articulating it in the purpose of the Act, by clarifying section 6(4) and by requiring employers to consider overall wage differentials in satisfying the analysis, planning and reporting responsibilities delineated in sections 19-21. NEDLAC should furthermore set targets for employment sectors for the ratio of the highest to the lowest wages in each sector. This could serve as benchmark for assessing compliance.

The SACC proposes that the Bill should address the issue of unfair discrimination against persons who are perceived to have a disability - including persons with epilepsy, diabetes, bi-polar disorder etc, which can be effectively managed medically. The SACC specifically addresses the issue of discrimination against persons with HIV/ AIDS in their proposal, and stresses that it, along with other manageable medical and psychological disorders should be regarded as a disability for purposes of the section on unfair discrimination.

The SACC proposes further that ministers of religion should be excluded from the definition of "employee" in the Employment Equity Bill.

With regard to the Commission for Employment Equity, the SACC proposes that it should include at least five black people, at least three women and at least one disabled person.

The proposal includes that the definition of "family responsibility" should be amended to include the responsibility towards spouses or partners.

Questions:
A representative from the Department of Labour inquire about the reason for the exclusion of members of the clergy from the scope of the Bill.
Answer: The different denominations represented by their organisation have different theological ways to deal with the position of members of the clergy within their churches. It is generally not dealt with under the concept of an employer/ employee relationship.

The chair comment that further investigation will be made into the exclusion of members of the clergy from the scope of the Bill.

Black Management Forum
The BMF broadly supports the Bill. They welcome the inclusion of job applicants within the definition of the "employee," as well as the inclusion of psychometric testing in addition to medical testing. They support the notion that potential is an important factor in determining whether a person is "suitably qualified" for a job, as well as the inclusion of the turnover threshold to include more employers within the scope of the Bill. The BMF believes that the punitive measures suggested in the Bill are too lenient. They hope, however, that the broad support for the Bill by organised business is an indication that maximum compliance could be expected.

With regard to the Employment Equity Plans, the BMF holds the opinion that numerical goals are essential, and that independent benchmarks should be utilised in setting these targets. However, when determining the demography of the country it should be the whole of the country, and not that of the "economically active population" as suggested.

The BMF voiced their concern about the capacity of the Director General to handle the enormity of the task, and asked whether and how they will be utilising outside resources to assist in the task of monitoring. The capacity of the current labour inspectorate is a further area of concern for BMF.

With regard to the Employment Equity Commission, the BMF expressed the hope that the ministry would include organisations that have grappled in this area of struggle for a long time.

Questions:
The ANC asks that BMF elaborate what they have in mind with regard to their comment about the Commission.
Answer: Up to now, an organisation like BMF had not been considered as a role-player in the Commission. They believe that they could, however, have an important and creative input to make.

The ANC asks BMF to explain a reference made to a national list of perfect employers.
Answer: The idea is to draw up a list of employers per sector to rate them according to how they fare with regard to affirmative action policy, as well as training and development. This could guide particularly black professionals in their applications to organisations.

The ANC asks whether the BMF has access to databases on professional employees, and on what kind of research methods they are based.
Answer: They have about 3 500-4000 members and have done research relating to black professional employment in 1992, 1995 and 1996 through partnerships with different research organisations.

South African Human Rights Commission
The Commission supports the inclusion of Chapter 2 in the Bill. With regard to the vicarious liability of employers for the discrimination of one employee against another, the Commission points out that an overwide interpretation of "reasonable steps" in section 59(2) could lead to the ineffectivity of a possible remedy. The Commission recommends that the committee reconsider the wording of this section. The wording of section 49 could equally be reconsidered to ensure that a possible too narrow interpretation does not lead to the absence of jurisdiction of the Labour Court in cases of vicarious liability of an employer.

The Commission requests that attention be given to the possible inclusion in the Bill of incentives (like tax incentives or possible penalties) to encourage compliance of all employers - even those currently outside the scope of the turnover and employer thresholds. The Commission has received many inquiries regarding the inclusion of only three designated groups. Although they are confident in the constitutionality thereof, they would suggest that the committee consider arguments around this issue, in the light of a possible later challenge.

The Commission further asks for the removal of the blanket exclusion of the SADF, NIA and the SA Secret Service from the ambit of the Bill. They welcome the inclusion of family responsibility as a ground of discrimination, as this impacts particularly on the position of women in the workplace. They also support the introduction of the notion of unfair discrimination as it relates to wage differentials, and they argue strongly for its retention.

One of the areas of concern for the Commission is the absence of any specific reference to the concept of sexual harassment in the Bill, and they suggest that the Bill should state that references to " harassment" also includes the concept of "sexual harassment."

The Commission requests that the definition of "disability" be reworked with the technical assistance of the specialised agencies, as the current phrasing includes internal qualifiers which have implications for the onus of proof.

With regard to the defences for discrimination the Commission asks that the concept of the " inherent requirement for the job" be defined more closely with reference either to the concept of "reasonable accommodation" or to "undue hardship."

Concerning the concept of "reasonable accommodation" as used elsewhere in the Bill, the Commission proposes that the concept of "undue hardship" be introduced as a qualifier so as to provide a clearer guideline to the interpretation of the concept. The Commission further proposes that the "undue hardship" should then be further limited to questions of cost, or of health and safety.

The Commission proposes that demography not be determined with reference to the "economically active population".

Concerning redress, the Commission recommends that sexual harassment be dealt with in the same way as other forms of discrimination, and be included under the procedural remedies contained in the Bill. The Commission further suggests that the committee give further attention to the enforcement mechanisms in the Bill, particularly the cost implications as well as issues of accountability.

The Commission further points out the dissenting opinion of Commissioner Helen Suzman that is attached to the Bill.

Questions:
The NP asks the Commission to explain the comment in p3 par 2.2 of their submission, particularly in light of the fact that it is not the place of the Committee to prescribe to the Labour Court what its jurisdiction must be.
Answer: The intention of the Commission was rather to point out that the current phrasing contained in the Bill could lead to uncertainty regarding the jurisdiction of the Labour Court over matters regarding vicarious liability of employers, and that the Committee should reconsider the phrasing to ensure that the Court’s jurisdiction does, in fact, cover such cases.

The NP asks the Commission to explain their comment on p7 point 4.1. par 1 that there is no case law on the matter and that it is a new comment. Such a comment is, in their eyes, not a legitimate statement as a lot of concepts in the Bills are new.

Answer: The questioner probably misunderstood the comment, which was made to request the Committee to pay special attention to the definition of the concept. They did not seek to have the concept removed because it is new - on the contrary they would suggest that it be augmented to avoid uncertainty.