Dreyer’s Legislative Proposal to amend Employment Equity Act

Private Members' Legislative Proposals and Special Petitions

19 June 2008
Chairperson: Ms P Mentor (ANC)
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Meeting Summary

The Committee noted that Ms Dreyer had submitted a proposal to amend the Employment Equity Act’s definition of the designated group, by including members of the “new generation” – those who were of school-going age in 1994. The intention was that this should address the skills drain, as it was asserted that many younger people were leaving South Africa because of fears that they would not find employment. In addition it would introduce a sunset clause into the Employment Equity Act, in line with the International Labour Organisation’s stance on affirmative action. She highlighted that the idea was to move away from racial distinctions and focus on real economic inequity, to build those who were economically disadvantaged.

Members noted the principle but argued that in fact there was still huge inequality between white and black and that the effect of this proposal would be to dilute the intentions of the Employment Equity legislation. It was clear that more research was needed on the real facts, including percentage statistics on employment in different racial groups, as some Members felt that it was premature to move already to a sunset clause. However, all were agreed that the issue warranted serious and extended debate. The parliamentary researchers were asked to do some preliminary work, Ms Dreyer was asked to include costings and further research, and other stakeholders would also be consulted.

Meeting report

Dreyer’s Legislative proposal to amend the Employment Equity Act
Adv P Swart (DA), stated that Mr P Gerber (ANC) had acted as Chairperson at the previous meeting when this matter was briefly tabled. Ms A Dreyer, MP, the proposer, had briefed the Committee as to her proposal and was asked to provide the Committee with some background research. She was not due to brief the Committee further today.

The Chairperson asked Ms Dreyer if the document before the Committee was the research.

Ms Dreyer explained that in her motivation she had referred to research done by Prof Pierre du Toit of the University of Stellenbosch. That research was the document now submitted. She had not prepared herself to take the Committee through the document, which was quite lengthy. She was attending this meeting as an observer. Her proposal was very simple, and involved amending the definition of the designated group in the Employment Equity Act, by adding in, after the reference to black people, a reference to women and people with disabilities, members of the new generation, which would imply those who were at school entry age in 1994.

The Chairperson asked her to please explain the issue of the new generation.

Ms Dreyer clarified that she wanted this to be a category with the other designated groups, so that they would also qualify for Employment Equity.

Mr S Mshudulu (ANC) believed the matter was not quite so simple as it appeared. The Department of Labour must be involved. The Commission for Employment Equity was the statutory body in terms of monitoring employment equity. The issue of designation had to do with application to the designated group. The motivation had a background of redressing past inequities. He did not believe one could simply pick a date. There were questions around evidence. In his view, Ms Dreyer must have the opportunity to present, and he would like to have sight of other reports and the results of public hearings around employment equity.

The Chairperson agreed with the issues raised by Mr Mshudulu. She noted that the Committee Secretary was ill and had not been able to invite the Department of Labour. She noted that a recent Court order had extended the ambit of the equity legislation by declaring the Chinese as a designated group. She was not sure whether this would be challenged. She agreed that the issues that Ms Dreyer had raised would justify a substantial debate.

The Chairperson said that her own view on the proposals were that they amounted to an attempt to completely kill affirmative action. The legacy of apartheid could not be measured with age groups and schooling time, as it was too deeply entrenched. An African child who started school in 1994 could not be compared with a white child who started school in 1994, even if they went to the same school. The child from the white background could have access to resources, both at home and at school, such as computers, and may have an enlightened and educated parent who could take the child through the ups and downs of learning, and might also be able to extend schoolwork at home. An African child whose parents had not had the opportunity of education may not have these advantages. She believed that using the 1994 generation was totally flawed, and it would abort employment equity’s true aims in a very sophisticated way. She would open discussion and give Ms Dreyer space to elaborate and clarify. She agreed with Mr Mshudulu that this was not a simple matter. The impact would go far beyond just adding a designated group. Other stakeholders should be invited. The space for holding the dialogue was very important, no matter what the Committee decided.

Adv Swart felt there was a lot of validity in what was said, but thought maybe it was a bit premature. The Committee had had preliminary briefings and he asked whether members had studied Schedule 5 and Schedule 4, as well as the objectives, and the research. The research was done on party political lines as well as racial lines so there could be some specific views from various sides. He was pleased that the Chairperson was going to open the debate as wide as possible. He noted that the proposal had made provision for women, and he indicated that many women, whether black or white, found themselves in the same situation of trying to run a household alone with children. The proposal had been very broad. He agreed that it would be necessary to hear from the Department of Labour and to look at whatever research Mr Rhoda, the Committee Researcher, could bring to the committee.

The Chairperson noted that these were preliminary discussions.

Ms Dreyer asked for clarity as to how the Committee worked, and whether it had the power to discuss the actual merits of the proposal and to accept or reject on merit.

The Chairperson responded that the Committee would consider whether the proposal was considered desirable by weighing the merits after it had engaged thoroughly on the issues.

Ms Dreyer asked for guidelines.

The Chairperson said that there were very broad guidelines, based on the Rules of Parliament, but she suggested that she and Ms Dreyer meet outside of the meeting. The question of the merits was quite complex, as it related to how the proposal was structured. She indicated that Ms Dreyer should have briefed the Committee also on the cost to the State if her proposals were to be implemented, and whether her proposals were covered anywhere else in the legislation. The Committee would consider the desirability of the proposal; it might also decide that the best option was to refer the matter to another Committee or to redraft another proposed Bill.  She asked Adv Swart to assist Ms Dreyer on the rules.

Ms Dreyer made some follow up remarks. She noted, on the issue of desirability, that the whole concept of employment equity had been in the public domain and raised a lot of interest in the media and the general public. It had sparked some anxiety and decisions to leave the country, which could not afford the loss of those skills. It was desirable that the issues should be aired in a broader forum with a proper debate.

The Chair reminded Ms Dreyer that she was only supposed to advocate her cause and motivate her proposal and how it should be dealt with was up to the Committee.

Mr Mshudulu said Ms Dreyer’s input today should be directed to research on areas that would assist the Committee to conclude the matter. He noted that the Constitution formed the basis of equality, but how to define it was another thing. The Committee, as public representatives of Parliament, must protect its Acts. The process allowed the sponsor to make reference to a particular section, if it had to do with the scope of application and was related to a designated group. The research would then give reasons as to why the Act had been categorised as it was. There was the issue of the policy and legislative framework. There were institutional arrangements around the Commission for Employment Equity, which monitoring and advocacy work, as well as institutes like the Commission for Conciliation, Mediation and Arbitration (CCMA), which kept records of precedents. The Departments also had strategic plans. The Committee should be informed as to whether there was any other process being dealt with by another committee on this issue.

Ms Mshudulu said that information should be shared so that Members of the committee, representing the nation, should be seen to have dealt fairly with the issue. It would then also be in a position to access relevant information. He had deliberately referred to the Commission for Employment Equity to give an opportunity for argument.

Mr A Ainslie (ANC) said this had been discussed at length in the Chairperson’s absence and he would like to see the Committee make a decision soon. He would like Ms Dreyer to concede that there was still an enormous amount of inequality between black and white. He had figures that indicated unemployment. One of the issues raised was that white people were not able to find employment because of the Employment Equity Act. That was not true. The figures that he had showed that the labour market was enormously skewed in favour of white people, and so there was still a huge inequality in our society. He believed it was premature to ask for a sunset clause.

The Chairperson noted Mr Ainslie was saying there was a skewed pattern of employment in South Africa, because there were not a lot of whites in certain of the exploited labour categories and asked if he would like to rephrase his remarks.

Mr Ainslie agreed that this was correct at the lower levels of employment. White people seemed still to be favoured for the upper levels of managerial and directors positions.

Mr Mshudulu stated that the Labour Relations Act dealt with situations where a person could challenge the fact that he had not been appointed if he believed that the non-appointment was related to considerations of colour, so there were instruments in place. Legislation was meant to be a framework to guide employers but the ball was in the court of the employers.

The Chairperson asked if Mr Mshudulu was referring to unfair discrimination.                                                                                                                        
                                             
Mr Mshudulu replied that he had been referring to Section 213 of the Labour Relations Act relating to unfair dismissal, which included failure to consider an application properly through discrimination.

Ms M Tlake (ANC) added that the employment equity that was expected by the Constitution and our law was not yet where it should be, especially in the private sector, as research had shown that women were not sufficiently concentrated at the managerial level. She agreed with collation of all information before dealing finally with the matter. The Constitution enjoined certain results, but the country was not yet there.

The Chairperson was sure that Members would agree that this issue warranted giving Ms Dreyer a good opportunity to respond and therefore she and other stakeholders would be invited to another meeting.

Ms Dreyer responded that Ms Tlake’s reference to the Constitution was a very good starting point. It was the foundation to move forward to a non-racist, non-sexist South Africa. The problem was how to get there. The idea was to move away from notions of colour and to help all those who were disadvantaged, of whatever colour, to have opportunities in society. It was not helpful to generalise about black children being poor, not having access to computers and parental assistance with schoolwork, and suggesting that this was available to white children, because it categorised people in terms of race. That was simply not true. While South Africa had made great strides over the years in becoming less racial, that fact was that the rich had become richer and the poor had become poorer, and that was not based on racial classifications. Perhaps the distinction should rather be between richer and poorer people. The idea was to help all those who were now disadvantaged to advance.

Ms Dreyer noted that Mr Jacob Zuma had recently visited a very poor white community in Pretoria and was shocked to see those people living in shacks and typical backyard conditions, with no electricity or amenities, and this was happening more and more in white communities living in very poor socio economic conditions. Poverty was happening across racial lines. All poor people must be helped. The children in those communities also did not attend good schools, and went to school hungry, so they could not learn.

Ms Dreyer responded to Mr Ainslie’s comment on unemployment, stating that this, together with crime, was the biggest crisis facing South Africa. There was a need to get more youth into the labour market. The unemployment figures were unprecedented worldwide. The biggest concentration of unemployed youth was amongst black youth and women, and they must be helped to get into jobs. When skilled people left the country the unskilled people also lost their jobs if the businesses of the skilled people closed. Ms Dreyer referred to vacancies in civil service, noting that across departments there were about 40 000 vacancies, not because people were not available, but because skilled people were not available. This had a ripple effect and if the positions at the top were filled so would the lower levels be.

Ms Dreyer noted that essentially her proposal was about less inequality, more unemployment, and upliftment of the poor. She noted that all people who were at school entry age in 1994 should be included in the designated groups. This would effectively bring in a sunset clause. Every year a further set of children would pass out through the schooling system and come in at the lower levels. Eventually the older generation would no longer be in the market. The International Labour Organisation defined affirmative action with a sunset clause.

Adv Swart said he would like the Parliamentary Research Unit to provide the Committee with racially constructed unemployment percentages in the various categories. It would not reverse the skills drain if a white engineer of 45 years old was excluded from getting employment, but there should be attempts to ensure that he was not, by getting employment, depriving another skilled person. Everyone who was skilled should be assured of a future in South Africa. Hd noted that if the population presentation indicated that, for instance, 4% of eighteen year olds were white, he did not see that including them as a disadvantaged catetory would pose a threat to employment equity empowerment. He agreed that addressing the perceptions might stem the skills drain.

The Chairperson agreed the Committee would need to research many issues, including this one.

Mr Gary Rhoda, Parliamentary Researcher, said he had prepared the Labour report that was presented to Parliament at the end of last year, and many of the issues being discussed here were also discussed in that paper. He could make that report available to the Committee. The issue of generation of wealth from one generation to the next, and the issue of empirical data should be taken into account.

Mr Ainslie was reluctant to prolong the discussions.

The Chairperson asked members to read the document by Prof Pierre du Toit. The Committee could not do justice to the topic alone, as it would involve a huge debate and many role players. The country had not yet made the smallest dent on the historical injustices of the past. She said that there were more black unemployed graduates in South Africa than white unemployed graduates. The question was whether their unemployment was disproportionate to the demographic numbers. She noted also that the skills exodus of whites who had left because of lack of employment opportunities was not matched against the number of skilled white immigrants to the country. It was also not only white skilled people who were leaving the country. She noted that the selection processes must be carefully examined; she did not think that the labour laws specified that a white candidate should be ignored if he or she was clearly superior to the other non-white applicants.

The Chairperson asked Ms Dreyer to support her statements with specific data. She wondered if the conditions as described in Pretoria were shocking only because they were unexpected for white people, as many black people experienced these living conditions daily.

Ms Dreyer responded that all that she had meant was that not all white people were rich and not all black people were poor.

Ms M Maine (ANC) noted that RDP houses had been built in Christiana and there was nothing shocking about it.

The Chairperson noted Mr Rhoda had mentioned wealth creation and poverty solutions, and another issue of affirmative action. The Committee must be careful not to confuse the issues. Poor whites had always been an issue, and were addressed in 1948 by the National Party. Twelve years to reverse the legacy of apartheid was not enough. Similarly she did not think that the playing fields were now levelled for those who entered schooling in 1994, but the Committee would need to examine the issue more deeply.
 
Mr Mshudulu asked that documentation be provided by Monday.

Kellerman Petition
Adv Swart informed the Chairperson of discussions that took place at the meeting on 6 June. Mrs Kellerman was in dire financial circumstances and was about to be put out of her accommodation. The situation was totally unacceptable. He asked the Chairperson kindly to address the issue. 

The Chairperson announced that she would be meeting with Mr Doidge the following week, as the Programming Section had decided to place this Committee’s issues high on the House agenda.

The meeting was adjourned.

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