Employment Equity Bill: hearings

Meeting report

LABOUR PORTFOLIO COMMITTEE
22 July 1998
EMPLOYMENT EQUITY BILL: HEARINGS CONTINUED

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
15. South African Catholic Bishops’
The SACBC supports the Bill as a way to address the imbalances and injustices in the employment field.
With regard to the definition of "people with disabilities," they suggest that the Bill be reworded to include within its definition physical and mental conditions for purposes of the Chapter on Unfair Discrimination only. " Health" should also be added as an additional ground on which unfair discrimination is prohibited. The SACBC is also concerned about the exclusion of the SANDF, the NIA and the SASS from the benefits of labour legislation.

They further suggest that the Bill make specific provision for the position of persons facing more than one employment barrier, and suggest that the employers should be required, when drawing up Employment Equity Plans, to give priority to prospective employees who face multiple employment barriers.

The SACBC suggests that the Minister be required to be satisfied of the representivity of the Commission for Employment Equity before appointing the nominations made by NEDLAC. On the issue of penalties, the SACBC finds the penalties proposed in Schedule 1 extremely severe. They urge government not to enforce the Bill in a too heavy-handed way, but to follow a flexible and measured approach to implementation.

Questions:
The DP asks, regarding both par 6.1 of their submission, and the issue of "reasonable accommodation," what their opinion was with regard to the situation of a person or organisation, like themselves were to let a premises - should the burden be on the landlord or tenant to provide for reasonable accommodation?
Answer: Not really within the expertise of the SACBC, but they think it would be reasonable for the employer - be it either the landlord or the tenant - to provide such accommodation.

The DP comments on the submission that the Minister must satisfy himself that the Commission is representative, and asks whether this is advisable, seeing that the stakeholders should have the freedom to choose those persons who must represent them.
Answer: It could, however, happen that no one within this group of designated people would be from one of the designated groups, and therefore, they still believe that representivity should be testable by the Minister.

The DP asks whether the SACBC would support a sunset clause in the Bill.
Answer: The SACBC had an open mind about this, and wouldn’t reject such an idea in principle. One should deal with the issue carefully, however, as one wouldn’t want a situation where, after representivity in the workplace is achieved, it would be possible to go back to the old ways.

The ANC asks whether a less heavy-handed approach could lead to the paralyses of the legislation.
Answer: The SACBC does not so much ask for more lenient penalties in those cases where there was a clear contravention of the Bill, as to ask for flexibility in implementation. There is a difference between non-compliance because of bad faith, and because of incapacity of the business, and the Department could address this by extending deadlines, or by assisting smaller businesses in meeting some of the requirements.

The ANC, in the person of the chair, asks whether, like the SACC, the SACBC believes that ministers of religion should be excluded from the definition of "employees".
Answer: The SACBC would like to discuss the SACC’s proposal with them, but acknowledges that as is stands, ministers are not regarded as employees within the employment context, and that there is case law on this matter.

The DP asks whether the SACBC would be able to comply with the provisions of the Bill, as it stands.
Answer: Yes, there shouldn’t be too many problems. There are very few employment units within the SACBC that have more than 50 persons within their employment. They are, however, particularly aware of the possible effect of the provisions on unfair discrimination on the church, and hope that it would spur on the debate on particularly the position of women in the church.

16. NADEL Human Rights Research and Advocacy Project
The NADEL HRR&AP started submission with statement regarding the proceedings. Pointed out that, while business was given the prime spot on the agenda for submissions, NGO’s and human rights organisations had to make submissions till late at night when there were very few MP’s left in the hearing. The attitude towards NGO’ s also portrayed in the media coverage of these hearings. Concerned about the fact that not taking all submissions equally serious.

The Chairperson comments that there was no deliberate attempt to marginalise the NGO input, and that the programme was drawn up on a first come, first serve basis.

The NADEL submission supports the EEA submission, including the provisions on the inclusion of HIV/AIDS as a disability for discrimination purposes, as well as to create a separate category for black women.

NADEL is disappointed that the issue of the wage gap and poverty is not addressed adequately in the Bill. They support COSATU’s submission that the closing of the wage gap should be an essential feature of the Bill. Also not providing equal pay for work of equal value should be recognised as a form of discrimination.

Black women should furthermore be mentioned as a separate category in the Bill. Furthermore, persons who fall into two or more categories, should only fill one position. With regard to the "inherent requirement of the job," the submission recognises that the qualification could be open for abuse, and recommends that the concept of "undue hardship" should be included into the "inherent requirement " notion.

NADEL asks how the number 50 was determined as benchmark.
The committee is asked to look into preventing the possibility that companies will contract out work, but keep overall control as a way to sidestep the "50 persons or more" requirement. With regard to the Commission, it is recommended that at least three black women should be on the Commission.

Questions
The ANC agrees that the apartheid wage gap is a point of concern, but states that one has to start somewhere in addressing it. What does this organisation think about the possibility of a National Minimum Wage?
Answer: The starting point should be to start diminishing poverty at ground level.
With regard to the National Minimum Wage, the minimum wage determinations made at the moment are very low. Although they do not have an official opinion on the issue of a legislated minimum wage, they do recognise the current problem that not all workers are organised, and these persons would definitely benefit from such a wage determination.

The ANC comments on the question from NADEL about how the number 50 was determined as benchmark. Apart from the 50 benchmark, the Bill also includes a turnover benchmark. Will this not address their concerns?
Answer: The question still remains why small business should be exempted from the requirements of the Bill. It is extremely important to achieve uniformity in the workplace on this issue. Many small businesses have high turnovers, and the fact remains that the small business will benefit from the dispensation envisaged by the Bill. Companies should also start taking into account social justice in the planning of their businesses.

The IFP asks why black women should be included as a separate category, when they do fall under two categories mentioned specifically.
Answer: International experience shows that black women are the ones who experience the highest degree of discrimination. In practice, they still experience double discrimination.

The DP asks their opinion on the burden of proof in clause 11, as well as the vicarious liability provision in clause 58 and whether it does not represent a negation of the general legal rule.
Answer: Currently, the rule works in the interest of the employer. It should be the responsibility of the employer to show why he/she did not comply with the requirements of the act.

The ANC asks why did they say that three black women should be on the Commission.
Answer: They suggested three - one from each of the current delegations.


The DP asks what does high turnover indicate in order for it to determine that an organisation should be bound by the Act? What about those with small profit margins?
Answer: They do not think it necessary to get into a debate about economic terminology - the sentiment is rather that all employers should be covered - one needs to encourage even small business people to get as creative about achieving social justice in their organisations, as about making money.

The ANC asks about their comment on the representivity of the Commission - of what must it be representative?
Answer: Representative of the delegated groups.

17. Gender Research Project
The Gender Research Project submitted that the concept of indirect discrimination should be better defined in the Bill. The inclusion of the defence of the "inherent requirement of the job" can be problematic in the context of gender discrimination, as it can perpetuate existing discriminatory practices. The exception is also unusual in the context of race. With regard to medical testing, they recommend that section 7 be strengthened by including the circumstances under which such testing would be justified.

With regard to the chapter on unfair discrimination, they propose that the Committee should work in conjunction with the team currently working on the anti-discrimination legislation, to ensure that uniform anti-discrimination legislation is developed. In the reworking of Chapter II, the intersectional experience of black women should be taken into account. Black women should be a separate designated group, and in stead of stating "people from a designated group" the Bill should use the expression " people from one or more of the designated groups.

The Employment Equity Commission should be representative of people from designated groups, and the Minister should have the power to veto the ultimate representivity of the Commission.

The definition of "pregnancy" should include "intended pregnancy as well as the termination of pregnancy." Family responsibility" should also be amended to take into account the notion of the extended family, common law relationships and same sex partnerships.

Questions:
The ANC asks to explain the concept of intended pregnancy.
Answer : Women are often discriminated against at a pre-employment level because of the fact that they may get pregnant at a later stage, or are interested in having children in a later stage.

The ANC asks that a comment about the creation of locus standi for groups(class action) should be explained.
Answer: One of the ways in which human rights litigation is practiced, is through class action suits. These are particularly effective for poor or rural plaintiffs. It also makes sense, because human rights violations often affect a whole group of persons, and because it is difficult to prove unfair discrimination., especially if there are scarce resources.

The ANC asks what the Commission must be representative of.
Answer: Of the designated groups.

The ANC asks whether there should be a hierarchy of persons - black disabled women v white disabled women etc. Would a black disabled man have priority over a black women?
Answer: There is really no answer. The matter should probably best left to the Courts.

The ANC asks whether a distinction should be made in the legislation between black persons as African, Coloured and Indian.
Answer: Ideally, yes, seeing that the Apartheid system itself created this hierarchy, but also difficult question.

The NP asks whether this legislation was not putting the cart before the horse by putting employment before skills training.
Answer: It might have been ideal, but the reality is that we have a great number of unskilled workers who also need employment. It should therefore be accepted that this Bill is introduced at the same time as the Skills Development Bill.

18. The Aids Law Project
Job applicants and employees living with HIV/AIDS are often perceived as having a disability. These perceptions limit their entry into or advancement in employment. Therefore it is recommended that HIV/AIDS be specified as a ground on which unfair discrimination should be prohibited.

Section 7 on medical testing should further be redrafted, or at least all exceptions to the prohibition of medical testing, except the inherent requirement of the job, should be removed from the section. Permission should furthermore be sought at the Labour Court before any medical testing is done.

Questions:
The DP asks how commonplace the prohibition on medical testing is in countries that are on the same level of economic development as SA.
Answer: It is a trend in other countries within SADEC to prohibit testing, particularly in countries like Namibia and Botswana. HIV screening does save cost, and there is no economic ground on which to apply these tests.

The DP asks how the change they are suggesting to the prohibition of medical testing will affect medical aid schemes in the workplace, and particularly whether it would have the effect of the loading of premiums across the work-force, while only those with HIV/AIDS would benefit therefrom.
Answer: The issue of medical aid is actually relatively simple, as it already places limits on certain treatments. Death and Disability Benefits are probably more complex.

The DP asks whether this Bill can effectively address a comprehensive issue like this, and whether it wouldn’t be addressed better in other specific legislation.
Answer: According to the SALC it is relevant in the employment context.

The ANC asks how they could trust research on AIDS after previous fallacious reports on the onset of AIDS in schools.
Answer: Without going into research details, it is an undisputed fact that more than 3 million people in the country have HIV/AIDS.

The NP asks how, if medical testing is prohibited, can those innocent, HIV negative persons in the workplace be protected.
Answer: Apart from not really using terminology like "innocent" and "guilty," it is a very difficult virus to pick up. It is not highly contagious, and most workplaces do not see employees having unprotected sexual intercourse at the workplace. If the regulations in the Occupational Health and Safety Act are followed, one can reduce the risk of contracting the disease to almost nothing.

19. COSATU
COSATU’s main proposal is the addressing of the wage gap through this legislation. They propose that it should be included in the purpose of the Act. Furthermore, they suggest the deletion of clause 6, and the addition of a new clause which places the duty on the employer to address income differentials between employees progressively. This must be done through measures that identify the income differentials, that set targets or ratios for the progressive reduction of the differentials, and to ensure compliance with collective agreements and guidelines set at industry or sector level. The analysis required in terms of clause 19 should also require an analysis of the remuneration profile of each occupational category or level of employee. The Employment Equity Plan should further require that a timetable for consultation regarding the reduction of income differentials be included. When determining compliance, the DG must consider, inter alia, the extent to which the employer has consulted on this issue, the extent to which measures to achieve such reductions, have been implemented as well as the extent to which actual reduction has taken place.

COSATU further recommends that a designated employer should be extended to include employers bound to voluntary compliance by a collective agreement, or an extension of a collective agreement by the Minister in terms of the Labour Relations Act. The agreement must also determine reporting duties, in the absence of which, the reporting duties in the Bill should apply.

Other technical amendments suggested by COSATU are contained in Annexure C.

Questions
The DP asks how addressing of the wage gap in this legislation will affect foreign investment.
Answer: Employment Equity not has economic sense, because it brings people back into distribution. It was the exclusion of these people from the job market that was one of the reasons for problems in economic growth.

The DP asks whether these proposals will assist the government in reaching its GEAR targets for labour absorption or lead to shrinking of jobs.
Answer: The argument that this Bill will cause jobs to be shed looses sight of the fact that jobs were shed before the first democratic election.

The chairperson asks COSATU to comment on the credibility of the NEDLAC process, in the light of the submission of BSA that the Bill did not reflect the agreement made there.
Answer: Parliament has always had the discretion to change the NEDLAC agreement in their drafting process, unless they show willy-nilly disregard of the agreement.

The DP asks what COSATU’s next step will be if their proposals are not included in the final Bill that it tabled.
Answer: COSATU has the fullest confidence that the committee will make the recommended changes, and that they need not plan further action.

The rest of the meeting was not minuted:
Submissions were heard from FEDUSA, Mine Workers Union and the Gender Equality Commission