Dreyer’s Legislative Proposal to amend Employment Equity Act: finalisation

Private Members' Legislative Proposals and Special Petitions

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

The Department of Labour and the Department of Justice addressed the Committee in relation to the Dreyer Legislative proposal to amend the Employment Equity Act. The Department of labour noted that the Constitution and Employment Equity Act had sought to promote achievement of equality by protecting or advancing persons or categories of persons who had been disadvantaged by unfair discrimination in the past. The Department did not believe that members of the new generation, who would comprise all races and economic groups, would automatically fall in the category of persons that had been disadvantaged by apartheid in any way. The focus of the Act was on the end result, to achieve an equitable and diverse workforce. All the issues raised in the proposed codes had been addressed in various codes of good practice already issued by the Minister. The Employment Equity Act focused on groups, because the imbalances had been imposed on groups. The concept of affirmative action was clarified, noting that a person who was not suitably qualified would not be employed. It was illegal to dismiss somebody for affirmative action purposes, and the intention was to be inclusive, nor exclusive, meaning that no absolute ceilings or barriers were placed on non-designated groups. The Employment Equity Act already contained an implied sunset clause since the obligations on employers would fall away once substantive equality had been achieved. 

The Department of Justice commented that it would be very difficult to make out a case that the new generation, which included all groups, had suffered from unfair discrimination, and in effect this would be introducing a new ground of discrimination on age, which posed the risk of constitutional challenge.

Questions and comments from Members addressed the involvement of NEDLAC, the reasons for the large numbers of vacancies in government departments, the need for a national debate on skills training and vacancies, and how the new generation was to assist, the continued need to address issues of women, who were not a homogenous group, and the worrying decrease of targets for this group and the disabled, the monitoring of effective Affirmative Action, whether sexual harassment was being addressed, and clarity on the sunset clause. Members commented that the point was really whether compliance and equality had yet reached the stage where imbalances of the past had been redressed, and this had not yet happened. A Member commented that perhaps further national debate was needed, and it was suggested that he expound on this in the House.

Members voted to reject the legislative proposal, as it was not deemed desirable.

The Chairperson noted that she was once again awaiting a response from the Speaker as to the Kellerman petition and the Committee pointed out that nine months had passed since the matter was referred to the Speaker.

IT was noted that the Gerber proposal would be dealt with on the following day, that the Committee was still awaiting Mr Lowe’s legislative proposal on labour relations, and that a meeting had been held with Mr Doidge. The Committee then adopted the Minutes of its meetings between 7 March and 13 June.

Meeting report

Condolences
The Chairperson announced that Mr S Mshudulu had recently suffered a bereavement in an accident of his adoptive son, the eldest son of his late brother. The Committee expressed sincere condolences to him and his family and observed a minute of silence.

Dreyer’s Legislative Proposal to amend the Employment Equity Act No 55 of 1998
Mr W Spies said he had submitted a legislative proposal on the issue of Employment Equity and queried whether that was what the Committee was discussing.

The Chairperson explained that Ms Dreyer’s proposal was under discussion and that she would communicate with Mr Spies by the end of the day.

The Chairperson welcomed Mr Les Kettledas, Acting Director General, Department of Labour, and Mr Johan de Lange, Principal State Law Advisor, Department of Justice.
 
She noted Ms Dreyer’s presence and explained that the invited role players would make their input and then the Committee would deliberate on the issue. The proposer was welcome to stay but could not participate.

Department of Labour (DOL) response to proposal
Mr Les Kettledas, Acting Director General, Department of Labour, gave some background to the Employment Equity legislation. He noted that any proposed amendments to the Labour legislation had to be submitted to National Economic Development and Labour Council (NEDLAC) prior to being submitted to Parliament, in terms of the Section 51(c) of the NEDLAC Act 35 of 1994. Amendments to Labour Relations legislation should also be considered by government, specifically the Minister of Labour. Amendments to the Employment Equity Act must also be considered by the Commission for Employment Equity (CEE) prior to being submitted to Parliament.

Mr Kettledas read out Section 9(2) of the Constitution, defining equality, and noted that the Employment Equity Act had been enacted as enabling legislation for that clause. The purpose of it was to achieve equity in the workplace. This was done firstly by promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination, and secondly, by implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, to ensure their future equitable representation in the workplace.

Section 28 of the Employment Equity Act dealt with the establishment of the Commission for Employment Equity. Its composition and key functions were summarised, as also section 42 of that Act which dealt with the factors to be taken into account when assessing an employer’s substantive compliance with the Employment Equity Act.

Mr Kettledas noted that Ms Dreyer’s proposed amendment of Section 1 of the Employment Equity Act sought to change the definition of designated groups, which currently included black people, women and people with disabilities. Her proposal would extend that also to members of the new generation, who were those who were of school going age in 1994.

The Constitution was clear in its intention; namely that to promote the achievement of equality, legislative and other measures could be taken if they were designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination. Mr Kettledas said that members of the new generation, of any race, who were at school entering age in 1994 would not fall in the category of persons that had been disadvantaged by apartheid in any way, whether directly or indirectly. He also noted that the Employment Equity Act proposed positive action for designated groups where a disparity gap was significantly high and needed to be addressed. The focus was thus on the end result of achieving an equitable and diverse workforce. He did not believe that there were any absolute barriers to members of the so-called new generation in entering the workforce. The means would justify the end results. If those youngsters from 1994 onwards who sought to become part of the workforce were mostly whites, the end result would never be achieved, and the huge disparities would remain.

The Department of Labour then moved to the proposal that the Code of Good Practice on Affirmative Action be included as Schedule 5. Mr Kettledas noted that the CEE’s functions were primarily to advise the Minister on codes of good practice, and Section 54 of the Act allowed the Minister to change or replace any Codes. All the issues raised in the proposed codes had already been addressed in previous Codes of Good Practice.

In response to the issue of differentiation between designated groups or individuals from designated groups, contextualisation and activation of Affirmative Action measures, with respect to designated groups, Mr Kettledas said that the Employment Equity Act focused on groups rather than individuals. This was because apartheid laws and policies had categorised persons and disadvantaged them in terms of groups, and it was therefore appropriate that the steps to address the imbalances use the same group designations.

Mr Kettledas noted that Section 42 of the Act was very clear that the demographics of both the national and regional economically active population must be taken into account when setting numerical goals for an equitable, diverse workforce. Merit was clearly defined. Nowhere did the Act state that a person was entitled to a job solely because he or she came from a particular designated group. Nowhere in the Act was it stated that a person should, for the sake of Affirmative Action, occupy a position for which he or she was not suitably qualified.

The laws governing the legitimate expectation for permanent appointment when fixed term contracts were repeated on more than one occasion applied equally to both designated and non-designated groups, and did not favour either of the groups.

Career pathing was an intrinsic requirement for all employees, both designated and non-designated. It was clear in the preamble of the Employment Equity Act, and in the Regulations, that only South African citizens who fell within the definition of designated groups as set out in the Regulations of August 2006 could benefit from Affirmative Action. He read out the relevant portion of the Employment Equity Regulations.

Mr Kettledas then said that it was illegal to dismiss somebody for affirmative action purposes. The main aim of the Act was to include and not exclude. Therefore there were no absolute ceilings or barriers placed on non designated groups. Section 15(4) of the Employment Equity Act already captured that very succinctly. 

The Department of Labour believed that a sunset clause was already implied in the Act. When reasonable representation of any of the designated groups was achieved in the economically active population, no obligation was placed on the employer to continue implementing Affirmative Action, because there would then be equality.

Based on the remarks made, Mr Kettledas indicated that the Department of Labour was opposed to Ms Dreyer’s proposal.

Department of Justice (DOJ) response to proposal
Adv Johan de Lange said the comments of the Department of Justice would deal only with the legal position.  very restricted to legal observation. He noted that the Constitution in Section 9(2) was effectively promoting the achievement of equality, through legislative and other measures designed to protect or advance certain categories of persons who had been disadvantaged by unfair discrimination. It would be very difficult to make out a case that the new generation, consisting of everyone, not merely one group, had suffered from unfair discrimination. Essentially this would be introducing a new ground of discrimination – that of age – and there was a potential for constitutional challenge.

The Chairperson explained that the Department of Justice was invited because its role as custodians of justice would include issues of redress.

The Chairperson noted that she had heard the Minister of Labour talking of similar issues on the radio that morning, and asked Mr Kettledas to convey that his thinking was in line with the issues before the committee.

Discussion
Adv P Swart (DA) thanked the departments for their very informative presentations. He asked for clarity as to what the reference to NEDLAC had to do with the private members proposal, querying whether, in the event that this Committee did deem the proposal desirable, it would then have to be referred to NEDLAC before being referred to another Committee. 

Mr Kettledas responded that NEDLAC came to Parliament in 1994 and it was decided that all proposed labour legislation must be dealt with by NEDLAC before being tabled in Parliament. This was the first time that a labour Bill had emanated from Parliament itself. The legislative requirement would still be the same, and the process would then go from NEDLAC to the relevant Portfolio Committee and public hearings.

Adv Swart asked for some indication from the Department of Labour whether the enormous vacancies in government departments, which were impeding service delivery to the people, had been affected by the preferences being given under the Equity Act, although he noted that there was nothing to exclude people from being part of the labour force, or whether the vacancies were the results of lack of qualified people. 

Mr Kettledas responded that vacancies in the departments existed for a number of reasons, and the Public Service was losing people on a daily basis. Public Service employees would move to the private sector and even moved within departments, resulting in loss of senior managers from one department to another. This was an ongoing issue. It was not that people did not have skills, because people would apply for advertised posts, but there was an ongoing high turnover.

Adv Swart agreed with the Department of Justice’s comments that the “new generation” would include everyone of that age grouping. He asked the Department of Labour if it would agree that everyone born after 1994 should enjoy certain rights. This was a very interesting matter and there was some argument that the time was ripe for a national debate, in the light of what was happening in terms of skills training and numerous vacancies in the labour market.

Ms Ntsoaki Mamashela, Project Leader, DOL. commented that the issue of those born after 1994 had to be looked at in terms of what was the purpose of the Act. The Act was trying to redress the imbalances of the past. People born after 1994 were still directly or indirectly affected by the disadvantages of the past. Although they were in the new democracy and going to the same schools, some people were still being treated differently in practice and in the labour market. Even though they had the same qualifications and went to the same universities they still faced the same challenges of the past. It could not be said that everyone born after 1994 had yet reached a stage of equality.

The Chairperson thought perhaps the question relating to vacancies was actually for the Department of Public Services and Administration to answer. Parliament’s role was to debate issues of national interest. The Department of Labour should not feel obliged to reply to questions that were not in their domain. The target for designated groups in government departments was decreasing. As a gender activist she would normally look at the targets for women, and also for desegregated women, because women were not a homogenous group, African, Coloured and Indian women were all disadvantaged, but not to the same degree. Apart from numbers diminishing, it was found that women of a particular race and class were making it up the ladders of public service employment. The numbers of disabled people were reducing. She was not happy with these two areas and did not think the country had yet reached the stage where the affirmative action for women and the disabled could be discounted.

Ms Mamashela said that the Department had also noticed the issue of targets that were decreasing for the designated groups. In an initiative to encourage government departments to comply and set realistic targets for designated groups, the Department had run a workshop for all provincial and government departments, taking them through all the requirements of the Act, including all the existing tools, and they were found wanting in terms of setting realistic goals.
 
Ms S Rajbally (MF) noted that in the labour field Affirmative Action had always been termed as Apartheid in Reverse. She now learnt that Affirmative Action was applied according to qualifications. She asked for clarity as to whether Affirmative Action was monitored on the ground, to see how the Department applied it.

Mr Kettledas confirmed that Affirmative Action was monitored on the shop floor. The Department had Labour inspectors across the country to check for procedural compliance, and had introduced monitoring of substantive compliance through Director General’s reviews. The DOL had reviewed quite a number of companies last year, starting with the companies in the top 100 lists of the Johannesburg Stock Exchange (JSE). Monitoring had picked up shortcomings, and recommendations were made as to how those should be addressed, within specific time frames.

Mr Y Wang (ANC) added to Adv Swart’s question as to a Labour amendment having to go through NEDLAC.
He noted that one of the objectives of the proposal was to provide a sunset clause, and he was given to understand that this was already in the Employment Equity Act. He asked for confirmation that any person born after 1994 was deemed to be competing on fair ground; and that in one hundred years’ time nobody would have lived long enough to qualify any more.

Mr Kettledas said that the issue of the sunset clause was covered in the presentation. It was implied in the legislation. If there was strict compliance with the law, then the country would reach a stage where the clause was no longer needed, because equity would have been achieved. However, South Africa was not yet at that point. In fact there was a need to strengthen monitoring and enforcement to achieve compliance.

The Chairperson asked Mr Kettledas to leave the hard copy of his submission with the Committee as part of Committee records, and appreciated the Committee’s own research.

Mr S Mshudulu (ANC) asked the Department of Labour to clarify why NEDLAC was created. The Labour Relations Act literally related to relations between employers and employees. Mr Kettledas’s introductory remarks should have sensitise Members of the process and to make them aware that the Portfolio Committee on Labour could not deal with matters prior to them being discussed at NEDLAC.

Mr Mshudulu said that the point was really whether compliance levels had reached the stage whereby the imbalances of the past had been addressed. He noted that Section 2 of the Constitution referred to any practice or policy that contradicted the provisions of the Bill of Rights relating to fairness and equity.

Ms M Tlake (ANC) asked for clarity on the issue of age.

Ms Tlake questioned whether, in the few years since democracy, it could be said that the atrocities of the past had been redressed to such an extent that affirmative action was no longer needed as a tool, and questioned also whether there was anything that could replace it as a catalyst to reverse the past.

The Chairperson stated that Mr Kettledas noted that a number of matters were already in the Codes of Good Practice. She did not believe that justice was being done to issues of sexual harassment in the workplace. That should be conveyed to the Minister. Codes of Good Practice were good, but it was entirely another matter whether they actually resulted in good practice on the ground. The same applied to the issue of the designated groups.

Mr Kettledas noted the issue around sexual harassment.  The Code of Good Practice and Technical Assistance Guidelines were intended to assist employers in managing these issues but there was not enough understanding by employers of that. The DOL was embarking on Employment Equity road shows focusing on disability and HIV/AIDS in this round. He agreed that not enough people with disabilities were employed. The Department of Labour  had also noted that the targets were decreasing.

Mr Thembinkosi Mkalipi, Executive Manager: Collective Bargaining, Department of Labour, said many people believed that white males could not get on board the labour market but the evidence was to the contrary. Reports from the top one hundred companies on the JSE showed that white men were being employed, trained, and promoted. The perception that whites had minimal chances of getting a job were not correct.

Mr Mshudulu proposed that the legislative proposal be rejected on the basis that it was not desirable to proceed.

Ms I Mars (IFP) questioned whether it had to be referred to NEDLAC.

The Chairperson clarified that it would have to go to NEDLAC only if it was deemed desirable.

Ms Rajbally seconded the proposal.

Adv Swart wished to make a counter proposal but was not seconded.

Adv Swart remarked that maybe it was time for national debate. He agreed with the sentiments, but noted that part of the proposal related to instilling hope in the generation that they would find work. He had fought hard to get rid of the old systems. Fourteen years later he was looking at minority groups. He had asked for research into what would be the percentage of inclusion if the new generation was taken into account. He had argued that only four or five percent would be affected.

The Chairperson suggested he take more time in the House raising those sentiments.

Kellerman Petition
Adv P Swart (DA) asked the Chair for feedback regarding the Kellerman Petition.

The Chairperson replied that she was again awaiting a response from the Speaker.

Adv Swart reminded her that it was nine months since this Committee had asked the Speaker to deal with the issue, and that it was urgent, already being three years old.

Gerber’s legislative proposal to repeal certain school legislation
The Chairperson noted that she had advised the schools that there was a likelihood that the Committee would be disposing of the matter on the following day. They had requested between three to six months’ extensions for their submissions, but she had explained the process to them. 

Programming matters
The Chairperson reported on her meeting with Mr Doidge emanating from programming matters, and the committee was under pressure to dispose of the matters before rising on Friday.

Lowe’s legislation proposal on labour relations
It was noted that Mr Lowe’s legislative proposal on Labour Relations was still outstanding.

Adoption of Minutes
The Committee adopted the Minutes of meetings dated 7 March, 14 March, 20 May, 27 May, 30 May, 6 June  and 13 June 2008 subject to amendments.

The meeting was adjourned.

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