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LABOUR PORTFOLIO COMMITTEE
4 August 1998
EMPLOYMENT EQUITY BILL: DISCUSSION
Documents handed out:
Employment Equity Bill [B60-98]
Proposed Amendments to the Employment Equity Bill
Party position papers on the Employment Equity Bill:
African National Congress
Inkatha Freedom Party
Pan Africanist Congress
Department's Summary of Public Submissions
This was the final meeting to discuss proposed amendments to the Employment Equity Bill. Proposed amendments were submitted by the political parties and a "final" draft was presented by the DG and his team. However there are still contentious clauses which need further discussion, research and legal opinion.
Mr Olifant , the chairperson (ANC), was anxious to finalise discussion and amendments to this bill by the end of the morning’s discussion, even if it meant working through to the afternoon. He welcomed six members from the Dept. of Labour including the Director General (Mr S Pityana), the deputy-Director General and the UIF Commissioner.
Mr Pityana presented the proposed amendments to the Employment Equity Bill, which had been agreed to after further consultations at NEDLAC, considering all proposals.
The definitions "family", "pregnancy" had had minor alterations. On the definition of "designated employer" it was argued by NEDLAC that it should include a "turnover" clause if less than 50 people are employed. "HIV" was not to be regarded as a disability as some had argued, mainly because this would have meant obligatory testing which was not favoured. (See also section 7)
The word "pyschometric testing" has been changed to "psychological testing" because it is doubtful if the former word is reliable.
This section will give sense of where designated groups are and information for analysis where unequal remuneration is occurring. It is also linked to section 53 where it is recommended that guidelines on prioritisation of certain designated groups be made, and in relation to section 41, employers would be helped in not concentrating on one designated group to the exclusion of others.
Section 20(3) and (4) the wording has been amended slightly, but not significantly. The previous wording had however caused serious rifts between labour and business, but the new definitions (d) "capacity to acquire" implies that there will be no unfair discrimination on previous lack of experience.
A new section 27 is linked to wages and disproportionate incomes, and amended
Sections 35 - 39
All references to "employer" have been replaced by "designated employer".
A new section on temporary employment has been inserted which clarifies this and makes it more difficult for abuse to occur.
Discussion on amendments
Opportunity was again given to political parties to react to these amendments.
Mr Dyani (PAC) would like to see the definition of ‘family’ as it is, changed to extended family, because that would recognise the cultural differences in understanding of the ‘nuclear’ (Western and European) and traditional African family.
Mr Leon (DP) had several questions to ask:
1. The estimate regarding the number of businesses employing more than 50 people has been given as 10 000. How many businesses exist with a R10 million turnover?
Response: There are no statistics, except perhaps from UIF. The Committee should probably re-examine the "turnover" clause because it could be confusing and interpreted differently.
2. The term ‘designated groups’ is, according to his legal advice, not in line with the section 9 of the Constitution which is the equality clause (especially section 9 (3) which says "the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."
The state law advisor said the Department had looked at the Bill and had certified it, but they would look at it again.
Section 9 (2) of the constitution talks of "measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination" begs the question as to who was and who is disadvantaged.
A departmental official said that he interpreted this to be discrimination against groups and not individuals, so this legislation is an attempt to help the many who were disadvantaged before. He was anxious, however that it should not be a whites versus blacks issue
Mr Fourie (NP) referred to section 36 on the constitutional limitations.
It was agreed that further consultation with the law advisors should proceed immediately.
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