Employment Equity Bill: voting

Meeting report

LABOUR PORTFOLIO COMMITTEE
13 August 1998
FINALISATION & VOTING ON THE EMPLOYMENT EQUITY BILL [B60-98]

Documents handed out:
Proposed amendments to deal with income differentials (See appendix)

The Chairperson, Mr Oliphant, informed the committee that the Democratic Party did not agree to Schedule 1 (Maximum permissible fines that may be imposed for contravening this Act). He said that the ANC wanted no changes to the Schedule, and in the absence of the DP, it was decided not to amend it.

Ms Seftel, a representative from the Department of Labour, then introduced Section 27, which would be inserted after Chapter 3 of the Bill. Ms Seftel went through the proposed amendments dealing with income differentials.

The Chairperson opened the floor for questions on section 27. Mr Arendse (ANC) mentioned that the words "may be given by the Minister" in 27(2) does not make it compulsory for the Minister to give guidance for disproportionate income differentials. He felt that the word "must" should replace "may". Mr Dexter (ANC) also alerted the Department to this.

Ms Seftel explained that section 27(2) is linked to 27(4), where the Employment Conditions Commission "must research and investigate norms and benchmarks" and advise the Minister.

Mr Bunting (ANC) suggested that 27(2) be changed to ".. subject to such guidance as given by the Minister…". Ms Seftel said that it would imply that the Minister would have to intervene in every situation; leaving no room for employers and employees to solve the problem.

Mr Bikitsha (NP) informed the committee that his party did not agree with 27(6), as disclosure of information would not protect employers. He suggested that the Department further research the obligation in 27(6).

At this point, the meeting adjourned, as members had to attend their caucus session.

The meeting reconvened at 13h00. The Chairperson said that the proposed amendments to section 27 would be voted on. The members had no objections to all the subsections of 27. Initially the NP re-iterated that they did not agree to 27(6) as they felt that employers were not sufficiently protected. The Chairperson said that 27(6) was restating what stood in the Labour Relations Act. Hence that subsection was not introducing anything new. After that explanation the NP also agreed to 27(6).

Appendix
EMPLOYMENT EQUITY BILL
PROPOSED AMENDMENTS TO DEAL WITH INCOME DIFFERENTIALS
13 August 1998

New section 27
27 (1) Every designated employer, when reporting in terms of section 21(1) and(2), must submit a statement, as prescribed, to the Employment Conditions Commission established by section 59 of the Basic Conditions Employment Act, on the remuneration and benefits received in each occupational category and level of that employer's workforce.

27(2) Where disproportionate income differentials are reflected in the statement contemplated in subsection (1) a designated employer must take measures to progressively reduce such differentials subject to such guidance as may be given by the Minister as contemplated in subsection (4).

27(3) The measures referred to in subsection (2) taken may include-

(a) collective bargaining;
(b) compliance with sectoral determinations made by the Minister in terms of section 51 of The Basic Conditions of Employment Act;
(c) applying thc norms and benchmarks set by the Employment Conditions Commission:
(d) relevant measures contained in skills development legislation; and
(e) other measures that are appropriate in the circumstances.

27(4) The Employment Conditions Commission must research and investigate norms and benchmarks for proportionate income differentials and advise the Minister on appropriate measures for reducing disproportionate differentials.

27 (5) The Employment Conditions Commission may not disclose any information pertaining to individual employees or employers.

27 (6) Parties to a collective bargaining process may request the information contained in the statement contemplated in subsection (1) for collective bargaining purposes subject to section 16 (4) and (5) of the Labour Relations Act.

Labour NA Committee: Proposed amendments 04/08/98
PORTFOLIO COMMITTEE AMENDMENTS TO THE EMPLOYMENT EQUITY BILL 1998

CHAPTER 1
1. Section 1 - Definitions:
Substitute the following definitions:

Family responsibility
"Family responsibility" means the responsibility of employees in relation to their spouse or partner, their dependent children, or other members of their immediate family who need their care or support;

Pregnancy
"Pregnancy" includes intended pregnancy, termination of pregnancy and any medical circumstances related to pregnancy.

Designated employer
Insert the following new paragraph (e) at end of definition:
(e) an employer bound by a collective agreement in terms of section 23 or 31 of the Labour Relations Act, which appoints it a designated employer in terms of this Act, to the extent provided for in the agreement.

Amend paragraphs (a) and (b) in order to ensure consistency with new (e) in regard to the reference to 'employer' instead of 'person'.

Amend paragraph (b) as follows:
An employer who employs fewer than 50 employees, but has a total annual turnover that is equal to or above the applicable turnover of a small business in terms of Schedule 4 of this Act.

(A new schedule which incorporates the Schedule to the National Small Business Act, is annexed)

HIV
Insert a new definition:
"HIV" means the Human Immunodeficiency Virus

CHAPTER II
2. Section 6 - unfair discrimination
Insert the words 'HIV status' after the word 'religion' in section 6 (1).
Delete the existing subsection 4.

3. Section 7 - Medical testing
Insert new subsection 2

(2) Testing of an employee to determine that employee's HIV status is prohibited unless such testing is determined to be justifiable by the Labour Court in terms of section 49 (4) of this Act.

4. Section 8 - Psychological testing
Replace section 8 with the following:

Psychological testing and other similar assessments
8. Psychological testing and other similar assessments of an employee is prohibited unless the test or assessment being used -
(a) has been scientifically shown to be valid and reliable;
(b) can be applied fairly to all employees; and
(c) is not biased against any employee or group.

5. Section 10 - Harassment
Delete the words "other than an allegation of harassment" in section 10(2). Delete the entire section 10(3) and renumber accordingly.

CHAPTER III
6. Section 19- Analysis
Add a new section 19(3)
19(3) An analysis conducted in terms of subsection I must include a statement, as prescribed, of the remuneration and benefits received in each occupational category and level of the employer's workforce.

7. Section 20(3) and (4) - suitably qualified
Insert the following amendment:
(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.

(5) In making a determination under subsection 4, an employer may not unfairly discriminate against a person solely on the grounds of that person's lack of relevant experience

(The existing subsection (5) becomes sub-section (6))

8. Section 21 - Report
Insert the following footnote:
The first report will refer to the initial development of and consultation around an employment equity plan. The subsequent reports will detail the progress made in implementing the employment equity plan.

9. Section 21(5)
Insert a new sub-section to read:
(5) The reports referred to in subsections (1) and (2) must be accompanied by a copy of the statement prepared in terms of section 19(3).

10. New provision requiring designated employer to report for full duration of its employment equity plan

Insert a new section 21(7)
(7) An employer who becomes a designated employer in terms of this Act must
(a) report as contemplated in this section for the duration of its current employment equity plan; and
(b) notify the Director-General in writing if it is unable to report as contemplated in this section, and give reasons therefore.

11. Section 27- lncome differentials
Insert a new section 27:
27(1) Where disproportionate income differentials are reflected in the statement prepared in terms of section 19(3), the measures taken by the employer to reduce such differentials may include-
(a) collective bargaining;
(b) compliance with sectoral determinations made by the Minister in terms of section 51 of the Basic Conditions of Employment Act;
(c) compliance with norms and benchmarks set by the Employment Conditions Commission;
(d) relevant measures contained in skills development legislation; and
(e) other similar measures that are appropriate in the circumstances.

27(2) The Employment Conditions Commission established by section 59 of the Basic Conditions of Employment Act must research and investigate norms and benchmarks for proportionate income differentials and advise the Minister on appropriate steps for reducing disproportionate differentials.

CHAPTER V
12. Sections 35, 36, 38 and 39 - technical amendments
Insert designated employer as follows:

Section 35
A labour inspector must request and obtain from a designated employer a written undertaking to comply with paragraphs (a) to (j) …

Section 36(1)
A labour inspector may issue a compliance order to a designated employer ....

Section 36(4)
A designated employer ....

Section 36(5)
A designated employer …

Section 36(6)
If a designated employer ....

Section 38(1)
A designated employer …

Section 38(6)
If a designated employer ....

Section 39(1)
A designated employer ....

Section 39(3)
If the designated employer ....

13. Section 41 - Assessment of compliance
Insert the words "and amongst the different designated groups" after the word "from" in section 41 (a).

14. Section 49 - Powers of Labour Court
1. In section 49(1)(f) the semi-colon after "Act" is to be replaced with a comma.
2 In section 49(2) omit the words "an employer has unfairly discriminated against any employee" and substitute:
"an employee has been unfairly discriminated against"
3. In section 49 (2) (b) omit "punitive"
4. Substitute the word "and" for the word "or" after the semi-colon in section 49(2)(e).

CHAPTER VI
15. Section 53 and Section 54
Section 53 --Codes of good practice

Amend as follows:

53(1) The Minister may, on the advice of the Commission-
Section 54- Regulations

Amend as follows:
54(1) The Minister may by notice in the Gazette, and on the advice of the Commission,..

16. Section 53 - Codes of good practice
Amend the footnote to section 53 (footnote 7) to include additional area for codes of good practice, 'guidelines for employers on the prioritisation of certain designated groups'.

17. Section 55 - Delegations
Add new subsection (4) and (5) as follows:
(4) The Director-General may delegate or assign any power or duty imposed upon the Director-General in terms of this Act, to any employee in the Department.
(5) Subsections (2) and (3 )apply with the changes required by the context to any delegation or assignment by the Director-General under subsection (4.)

18. Temporary Employment Services
Insert new section 56

(1) For purposes of Chapter III of this Act, a person whose services have been procured for, or provided to, a client by a Temporary Employment Service is deemed to be the employee of that client, where that person's employment with the client is of indefinite duration or for a period longer than 3 months.

(2) Where a Temporary Employment Service, on the express or implied instructions of a client, commits an act of unfair discrimination, both the Temporary Employment Service and the client are jointly and severally liable.

19. Section 58 - Liability of employers
Omit section 58 and substitute:
58(1) If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by that employee's employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer.

(2) The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act.

(3) If the employer fails to take the necessary steps referred to in subsection 2, "and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision"

(4) Despite subsection 3 an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.

Schedule 4
Turnover threshold applicable to designated employers
Column 2 Column 1
Sector or subsectors in Total annual turnover
accordance with the
Standard Industrial
Classification

Agriculture R 2.00m
Mining and Quarrying R 7.60m
Manufacturing R10.00m
Electricity, Gas and Water R10.00 m
Construction R5.00 m
Retail and Motor Trade and Repair
Services R15.00 m
Wholesale Trade, Commercial
Agents and Allied R25.00 m
Services
Catering, Accommodation and
other Trade R 5.00 m
Transport, Storage and
Communications R10.00m
Finance and Business Services R10.00 m
Community, Social and Personal
Services R 500 m