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LABOUR PORTFOLIO COMMITTEE
28 July 1998
EMPLOYMENT EQUITY BILL: DISCUSSION
Documents handed out:
African National Congress
Inkatha Freedom Party
Pan Africanist Congress
Department's Summary of Public Submissions
Motivation by the National Party for the proposed amendment to the Employment Equity Bill.
The National Party (NP) supports the main principles of the EEB, but rejects any form of discrimination contained in the proposed legislation. It is aware of the imbalances that were created by apartheid thus the elimination of unfair discrimination in the labour market and the creation of equal opportunities in order to address these imbalances of the past. However the NP rejects the slightest attempt at reverse discrimination.
The NP does not support the EEB in its present form, believing that the Bill:
a) puts a burden on the relationship between employer and employee;
b) makes provisions for the re-introduction of the principles of apartheid and discrimination;
c) will have a negative impact on the creation of jobs;
d) will rationalise the workforce;
e) will strain economic growth which will definitely not contribute towards the main objectives of gear;
f) puts at risk the opportunities of those who are at employed and it predicts the destruction of the economy and does not protect the interest of the unemployed.
The only way to create jobs is to create circumstances through which jobs can be created. The Government should take steps to create wealth through which better economic circumstances can be created. Special consideration should be given to the relationship between employer and employee to enable employers to survive financially. It is necessary to create steps for suitable qualified people for particular jobs. That will have a positive influence on the economy and productivity in small businesses. This will have a positive influence on the relationship of the employer and employee.
The labour market should be allowed to negotiate it own terms of employment and the government should refrain from interfering in the labour market. The provisions of the EEB is evident of the government interference in the labour market and it puts tremendous burden on the relationship of the employer and employee. Subsequently discouraging job creation.
Every employer in SA should be treated equally and race, colour sex should not play roll. Employers should be allowed to negotiate any appointment with out the application of race, colour and sex. This should be done on the bases that would be in the interest of the employee and employer. Keeping in mind the burden of any financial obligation suitably qualified persons for the particular job and productivity.
EEB- NP PROPOSED AMENDMENTS
Delete and insert:
"designated employer" means
(a) person who employs 150 or more employees;
(b) A person who employs fewer than 150 employees but has a total turnover of a small business in terms of the schedule to the National Small Business Act, 1996.
(e) Any employer has contemplated in section 14.
Delete and insert
"designated groups" means
Any persons or categories of persons disadvantage by unfair discrimination of whatsoever nature which include discrimination based on ability or qualifications and/capacity.
Delete and insert:
Every employer must take reasonable steps to promote equal opportunities in a workplace by eliminating unfair discrimination in any employment policy of practice.
Delete and insert:
Where instances of unfair discrimination occurs in relation to wage differentials, employers must reasonably attempt to address these in a matter appropriate to their circumstances, which may include collective bargaining or other measures such as those provided for in the Basic Conditions of Employment Act 75 of 1197.
Insert subsection 5 to Section 6:
It will be unfair discrimination if any Employer for whatsoever reason terminates the services of any employee in contravention of the Basic Conditions of Employment Act 75 of 1997, or the Labour Relations Act, Act 66 of 1995, in any attempt to apply with the provisions of this Act.
Delete Section 7 (b) and insert:
It is justifiable in the light of medical facts, employment condition, employment policy or practice, social policy, the fair distribution of employees benefits or the inherent requirements of the job.
Delete six months and insert 30 days.
Delete and insert:
Whenever unfair discrimination is alleged in terms of this Act, the person so alleging must prove that the act or omission is unfair.
Delete and insert:
Affirmative action measures which would not cause undue hardship to the employer must be implemented by a designated employer and must include..........................................
Delete and insert:
"A designated employer must consult the parties referred to in section 16 concerning -
(A) The promotion of equal opportunities and fair treatment;
(B) The elimination of unfair discrimination;
© The reasonable implementation of affirmative action measures to reduce disadvantages;
(D) The preparation and implementation of the Employment Equity Plan referred to in
(I) Insert the following at the end of the paragraph:
"Taking into consideration the circumstances and financial ability of the employer’s workplace."
Section 20(3)(b): Delete
Section 20(4)(b)(ii): Delete
Insert new Subsection (6);
"The first report in terms of this section will relate to the initial development of and consultation around an employment equity plan. The subsequent report will detail the progress made in the implementation of the employment equity plan."
Section 35 & 36:
These sections to be amended to make them applicable on designated employers only.
Section 52 (1)(a):
Delete "must" and insert may.
Section 53 (1)(b):
Insert at the end of Section 53(1)(b) the following:
...on the recommendation of the Commission and after consultation with Nedlac.
Inserting at the end of Section 54(1)(b):
...on the recommendation of the Commission and in consultation with Nedlac.
COMMENTS AND PROPOSED AMENDMENTS BY THE INKATHA FREEDOM PARTY IN RESPECT OF THE EMPLOYMENT EQUITY BILL [B60-98]
The Inkatha Freedom Party [IFP] supports the policy expressed in the Employment Equity Bill [EEB].
The IFP recognises that the EEB must reconcile conflicting interest in a very sensitive are which affects almost all South Africans. The IFP acknowledges that the EEB brings about reconciliation of these interests in a balanced manner while courageously pursuing the policy of affirmative action. The IFP believes that affirmative action should be placed effectively to ensure that the existing imbalances of our society do not vacuum a source of general destabilisation, rebellion and social tensions which would, in turn, undermine the economic fibre of South Africa. In this sense the IFP believes that business and workers interests are not in conflict, and that broadening the economic bases of our country through affirmative action is in the interests of all.
Even though in general agreement with the policies and the general parameters of the EEB, the IFP feels that the EEB has some flaws and deficiencies which can and ought to be corrected.
A. The EEB fails to recognise ethnicity as it mixes different ethnic and linguistic groupings within the common denominator of ‘Black people’. This would lead to the possibility of meeting affirmative action requirements with people of a linguistic group who in the specific region are only a minority. For instance, Coloured people could meet the affirmative action requirement of a business in the Northern Province or in the northern part of KwaZulu Natal, or, conversely, Sotho-speaking people could meet the affirmative action requirement in a Coloured predominated area in the Western Cape. Even though the EEB allows for the consideration of ‘regional demographics’ [section 40(a)(iii)], this is but one of the elements to be taken into account in the formulation of a ‘Employment Equity Plan’.
B. In certain respects, the EEB seeks to empower trade unions beyond what is necessary to protect the interests of the workers and in a fashion which is unreasonably detrimental to business and economic growth, and business interests should be more carefully protected, especially medium-sized businesses.
C. The affirmative action program should be a temporary measure to be revisited by Parliament once it has redressed the imbalances of the past and we can move into a new totally colour-blind society. An amendment is proposed to force Parliament to apply its mind anew of theirs issue after 10 years.
D. Other sections require amendments to correct some anomalies.
Therefore, the IFP proposes the following amendments:
1. At section 1, add the words ‘and shall be deemed to refer to the linguistic or ethnic group prevailing in the region from which the work place is likely to draw its employees and the community with which the work place is more closely associated’ at the end of the definition of ‘black people.
This amendment will ensure that affirmative action is filled by members of the linguistic group which prevails in the region concerned. The chosen language attempts to strike a balance between the present wording of the Bill -- which would cause affirmative action to become a factor of migration of people towards job opportunities-- and the preservation of a static and unequal distribution of job opportunities in among linguistic communities. The utilisation of the criteria of ‘national demographics’ would lead Black people to migrate towards more affluent White, Indian and Coloured areas where more job opportunities are. On the other hand, a rigid criteria of ‘community demographics’, would allow more affluent communities to preserve job opportunities only for people of their own background. The proposed reformulation aims at avoiding the possibility that, for instance, affirmative action requirements in Venda are filled Zulus or that those in northern KwaZulu are filled by Coloured, or those in Mitchells Plain are filled by Sotho.
2. At section 1, add the words ‘but which does not prevent them to be a suitably qualified person’ to the end of the definition of ‘people with disabilities’. This amendment will ensure that employers are not required to hire people whose disability impairs them to perform their job, which would have been against the overall spirit of this Act, which is based on suitability for the job in respect of the other aspects of affirmative action. The purpose is that of ensuring that a disability is not cause of unfair discrimination of an otherwise suitable potential employee. For instance, a wheel-chair bound person is a suitable typist, but not necessarily a suitable heavy package handler.
3. A section 13(2)(d), add the words ‘and the Commission’ after the word ‘Director General’. This amendment will enable the Commission to have the information necessary to exercise its statutory role.
4. At section 18(2), add the following proviso at the end of the sub-section: ‘provided that no obligation exists to disclose information which at the discretion of the employer is deemed capable of damaging the employer’s business interests if divulgated’. This amendment avoids that affirmative action becomes a tool in the hands of trade unions to disrupt business activities and blackmail employers. It may be noted that the sanction for the divulgation of confidential information is very low and it would not effectively force those involve to preserve confidentiality (section 55). Furthermore, it is known that when confidential information leaks, it is often impossible to trace the culprit. Moreover, since ‘the report’ is a public document in terms of section 18 (4), it would be hard to shield the public outcome of a process from the confidential inputs which went into its formulation. This section would damage especially medium business which are not listed in stock exchange and rely on confidential business information. Furthermore, the rights under the LRA to obtain information for a broad variety of other purposes remain unaffected.
5. At section 42(4)(b), add the words ‘subject to the proviso set forth in subsection 15(2)’ at the end of the subsection. This is a consequent amendment following from the one set out under paragraph 4 above.
6. Section 43(a) substitute item (k) with ‘regional demographics’ and rephrase item (iii) as follows: ‘the demographics relevant to the workplace concerned’. As clarified more fully under paragraphs ‘A’ above and 12 below, this amendment seeks to introduce equity among linguistic and ethnic groups.
7. Delete the word ‘punitive’ in sections 49(2)(b) and (3)(b)(I). Punitive damages may lead to escalating industrial actions and conflict, as they are still unknown in our system and would give an excessive leverage to one of the parties of the industrial relationship.
8. Delete section 53. The Code of Good Practice is an anomalous instrument which could be open to abuses, lead to major interference buy government and trade unions in business management discretion and is not strictly necessary in light of the regulatory power set forth in section 51. Section 30(1)(a) is to be deleted as a technical consequential amendment.
9. At section 58(1), delete the words ‘it is proven that’. The deleted words are pleonastic.
10. Delete subsection 59(2). This subsection enters into the realm of business discretion. It is not clear how it could be enforced as it would require the Department or the Labour Court to assess and double guess business conduct when there are no objective parameters to conduct such an administrative or judicial activity. Common law enables a court to disregard conduct in fraudem legis (in fraud of law) which would achieve a narrower but legitimate purpose.
11. At section 61, add the word ‘existing at the time of the commencement of this Act’ after the word ‘law’. It is anomalous to change the rules of interpretation and the fundamental rule that lex posterior abrogate priori [ a subsequent law repeals the preceding one] to give to this law the status of a super-law. Constitutionally and from a logic viewpoint this may not even be possible. The subsequent law could be deemed as having implicitly repealed, or derogated from this very provision! There seems to be no logic solution to this paradox. Moreover, today’s Parliament cannot tie a future Parliament.
12. At section 63, add the following subsection ‘(4) Unless confirmed by Parliament, this Act shall lapse after ten years from the latter of the dates mentioned in subsections (2) or (3)’. This amendment stress the interim nature of affirmative action and forces Parliament to reconsider it after ten years.
Pan Africanist Congress submission
They suppport the spirit of the Bill. The PAC also wants to identify Black women as a special category. Black women earn low wages and form the bulk of the unemployed.
The PAC recommend the following amendments as well:
HIV/AIDS to be considered as a disability.
AIDS testing to be considered unlawful.
AIDS/HIV should not be considered grounds for firing an employee.