Spies Legislative Proposals to amend Employment Equity Act No. 55 of 1998 & Lowe Legislative Proposal to amend Labour Relations Act: deliberations

Meeting report

W Spies Legislative Proposal to amend the Employment Equity Act 55 of 1998 (EE Act)
Mr W Spies MP presented his legislative proposal to amend the Employment Equity Act No. 55 of 1998. The proposal simply called for an amendment to the Employment Equity Act, so as to include, in the definition of the designated groups to which affirmative action measures applied, also those free born South Africans that started their schooling in 1994. “Free born South Africans’ would be defined as being all South Africans who reached compulsory school going age on or after 27 April 1994.
 
He noted that during June 2006 it was argued, in public hearings, that youth unemployment and underemployment was being experienced by white youths, particularly Afrikaans youths. The majority of South Africans participating in a survey had felt that youth should be excluded from the provisions of affirmative action. Affirmative action was intended to be a temporary measure to correct the position of a target group. The decrease in white university students seemed to indicate that they were subjected to affirmative action principles at this level, and that their exclusion from the job market often led to the loss of skills as they would seek employment outside South Africa. This could be addressed by including youth in the designated group to whom affirmative action should apply and should assist.

The Solidarity Trade Union later submitted a petition to Parliament proposing the broadening of the designated group to include “free born” South Africans. Following this petition the proposal was now being made. It could be regarded not so much as a sunset clause for affirmative action as a sunrise clause for non-racialism in the work place.  -

Adv P Swart (DA) asked if the Labour Committee had published a report following the public hearings, and what happened to the proposal that that Committee examine the issue of excluded youth.

Adv Swart pointed out that this proposal was very similar to one submitted earlier, and rejected, by Ms A Dreyer, MP. This Committee must therefore consider carefully whether they wished to proceed with it. If the Labour Portfolio Committee had already dealt with this issue they should be asked what they had done.

Mr Spies offered to make the report available.

Mr Spies understood that Ms Dreyer’s proposal was rejected because it was argued that any amendment to the labour law would need to go through New Economic Development and Labour Council (NEDLAC). He had read the Constitution and understood that there was only one process for National legislation; namely through Parliament. The Constitution did provide also for the introduction of legislation by the relevant Minister.  He did not think that the legislative competency of Parliament in terms of the Constitution could be delegated to NEDLAC, as Parliament had original powers, save in respect of money bills. 

Adv Swart clarified that the NEDLAC was mentioned but had nothing to do with the Committee’s decision on the desirability.

Ms S Rajbally (MF) understood from the report that affirmative action was not being fully applied as it should be, and if that was the feeling then she suggested that this Committee should go deeper and check whether there were any flaws.

The Acting Chairperson asked the Department of Labour (DOL) to explain the situation with NEDLAC.

Department of Labour response to proposals
Mr Les Kettledas, Acting Director General, DOL,  explained that there was a role for NEDLAC established by statute. Section 5(1)(c) of the NEDLAC Act said that the Council shall consider all proposed labour legislation relating to labour market policy before it was introduced in Parliament. The Minister of Labour would then introduce labour legislation in Parliament. Amendments to labour legislation and the Employment Equity Act should also be considered by the Minister of Labour, as well as the Commission for Employment Equity, prior to being submitted to Parliament.

Mr Kettledas outlined the legal framework informing the discussion. He said that Section 9(2) of the Constitution set out what equality would include. The Employment Equity Act (EEA) was enabled as enabling legislation to give effect to this Clause. The EEA would achieve equity in the workplace by promoting equal opportunity and fair treatment in employment, eliminating unfair discrimination and implementing affirmative action measures to redress disadvantages in employment by designated groups. The Commission for Employment Equity was appointed to advise the Minister of Labour on codes of good practice, regulations, policy or any other implementation aspect of the EEA. Section 42 outlined the factors to be taken into account when assessing compliance.

In regard to the proposal to extend the definition of “designated groups”, he pointed out that the “new generation” of whites who were at school age in 1994 would not fall within the category of those who had been disadvantaged by apartheid. The focus was on the end result of achieving an equitable and diverse workforce. There were no absolute barriers to any members of the new generation from entering the workforce, and any preferential hiring that may be going on unofficially would be justified for its end result, which would ensure that the workforce did not remain predominantly white. 

In regard to the proposal to include a Code of good practice on affirmative action as Schedule 5, Mr Kettledas noted that one of the key functions of the Commission for Employment Equity was to advised the Minister on Codes. Such Codes were intended to provide employers with directives on implementing affirmative action, in terms of section 54 of the EEA. All the issues addressed in the Code proposed by Mr Spies were already addressed in other codes.

Mr Kettledas indicated that the motivation was that “it is ideal that as the South African democracy develops, the benefits of affirmative action measures should be made available to an increasing number of South Africans until, some day in future, we reach the stage where all South Africans are truly equal.” It was already implied in the EEA that when reasonable representation of any of the designated groups in the economically active population was achieved, there would be no obligation placed on the employer to continue implementing affirmative action as employment equity would effectively have been achieved. The EEA focused on groups, not individuals, because apartheid laws had discriminated against groups.

The Department of Labour was opposed to this proposal.  The purpose of the Act was clear, as outlined in detail earlier. Free born South Africans did not fall into the category of those who had experienced disadvantages in employment under the previous apartheid systems. There were no barriers that applied to non-designated groups and section 15(4) of the EEA was clear. 

DIscussion
Mr Spies responded to the Department that the Constitution placed an obligation on the State to help those people disadvantaged by unfair discrimination.

Adv Swart noted that South Africans could only be regarded as free born if they had been born after 1994. When Ms Dreyer made her proposal, he had asked for statistics to be made available as to what percentage of school going children were outside the scope of employment equity, and what would be the cost of including those (who were likely to be relatively few) in order to address the problems of skilled youth leaving the country. He asked that the Labour Portfolio Committee provide some details for the next meeting.

The Acting Chairperson submitted that when the Auditor General Bill was first presented, it had contained a clause that any changes to that legislation had to be approved by the Auditor General. That had been rejected. He made the point that if proposed legislation had to be submitted to NEDLAC prior to being submitted to Parliament, that would technically remove the powers from individual members to bring legislative proposals.

Adv Swart said that the NEDLAC Act may make provision for the Minister of a Department to do so, but Members of Parliament were the legislators. He indicated that in fact that had nothing to do with the Committee’s decision to reject the prior proposal of Ms Dreyer.

Mr Kettledas responded that this provision was passed in Parliament for the specific reason that NEDLAC represented a large proportion of key stakeholders in this country. The State Law Advisors checked the constitutionality of all our laws.

Mr Spies said he would forward the report of the Labour Committee to the Committee Secretary.

M Lowe Proposal to Amend the Labour Relations Act No. 66 of 1995
Mr M Lowe, MP, briefed the committee on his legislative proposal. He said that one of the main purposes of the Labour Relations Act was to protect the right to strike, in accordance with the Constitution. Although the provisions of the Act were currently adequate insofar as workers were concerned, the Act did not provide sufficient protection to members of the public, or private or public institutions where strike action had directly caused damage to or loss of property. His amendments were intended to address that situation. He proposed that section 67 of the LRA therefore be amended by insertion of a new subsection (10) stating that a union or federation of trade unions may be held jointly and severally liable for damage that resulted directly  from the activities of a member or members of that union in the participation, contemplation or furtherance of a protected strike supported by that union. Section 68 would have a new subsection (6) added in similar terms.

Discussion
Adv Swart asked whether the Labour Relations Act clearly excluded such liability. If not, he asked whether there would not be a common law action available for any person who suffered loss to claim damages. The only advantage of this proposal, in his view, would be if it were to ease the burden of proof on the claimant.

Mr Lowe said he was not a lawyer but understood that neither the common law nor the Labour Relations Act made provision for making a person or persons liable for damages. That had been the problem in the past. There was a need for accountability, and this should lie with the trade union or federation.

Adv Swart responded anybody could claim from anybody else under common law. He asked whether the intention was then to re-state the existing position, or to ease the situation of the claimant. He suggested that perhaps something could be included in the labour legislation to assert combined accountability by federations or by unions, so as to ease the burden of the claimant.

Mr Lowe responded that his proposal arose from two recent instances. In Durban there had been a trade union strike around the Durban City Hall and substantial damage was caused to private property. People suffering damage were not insured or were not covered by their policies. In Cape Town about two years ago similar damage was caused to private property. He did not know what the legal situation was, but the fact was that a number of businesses and individuals incurring damage to property were unable to claim. He wanted to provide that the trade union bodies should be held responsible.

Adv Swart said that in order for a damages claim to succeed, there would need to be proof that the person causing the damage was under control of the union, which often it was not possible to do. The Shop Stewards were supposed to supervise, but often this did not happen. He recalled the security industry strike, where people had been thrown off trains in the East Rand, and had died, and where parked cars and shops near Parliament in Cape Town had been damaged. He agreed that there needed to be some way that unions, when organising a strike, must accept responsibility for the actions of strikers, or that some way be found to remove the common law requirement that a link to the unions must be proved. Strict liability applied in some countries even when negligence could not be proved.

Mr Lowe agreed that this was what he was hoping to achieve.

Ms Rajbally related that her experience was that the striking union members were organised, but the problem arose with unemployed and street people joining in the strike. She cautioned that care should be exercised before imposing liability on one body when other non-related people were using the strikes as an opportunity to cause damage or loss.

Adv Swart felt that court actions could be brought, but the problem was who carried the burden of proof. The unions were not without blame. A shop owner or owner of damaged property would have currently have to prove who caused the damage, that this person was part of the strike, the activities of the strike and the connection before he could even begin to claim from the union. Often the person suffering damages did not have the means to take the matter to court. He felt that the burden of proof should be placed on the body wishing to assert its innocence. Participation in industrial action should carry both rights and responsibilities,  including responsibility for an orderly strike. In the past strikes had been orderly, but now they were getting out of hand.

Ms Rajbally claimed that would not be easy if a non-union person got away.

Adv Swart added it was not about blame, but about responsibility.

Department of Labour response to proposal
Mr Les Kettledas noted, as he had previously, that any proposed amendments to labour legislation should be submitted to NEDLAC prior to being submitted to Parliament.

In addition, he noted that the principle of freedom of association was that there should not be special sanctions in respect of conduct associated with strikes, other than those that existed in respect of other forms of collective activity, such as public protests and marches. Trade unions could not be treated any differently from those organising other activities. A strict liability regime would make the trade unions liable for all unlawful conduct, even if they had taken steps to prevent the conduct, and could even lead to dissolution of the trade union. If members of trade unions had engaged in criminal conduct during strikes,  they would be arrested. The immunity provided in Section 67 did not extend to criminal activity, and this was set out already in 67(8). Courts had in the past imposed sanction where the trade union failed to comply with an interdict on unlawful conduct of their members and in other jurisdictions trade unions had been sued for unlawful conduct of their members in collective actions. No such actions had been instituted in South Africa, and therefore whether they would be successful or not had not been proved.

The Department was opposed to the proposal as it believed that it was not necessary.

Discussion
Mr Lowe asked whether Mr Kettledas was saying that the only recourse open to shop owners or individuals, in a case such as the security industry strike damage in Cape Town, was either to claim from insurance, or, if they were not covered, to sue the trade unions themselves. 

Mr Kettledas clarified that a person could institute legal action against anybody else if he believed he had a case. The principles of freedom of association meant that different sets of rules could not be applied to different circumstances. South Africa was a democratic country that allowed socio-economic protest action from all sectors of civil society, so to target trade unions would be in conflict with international standards concerning freedom of association.

Mr Lowe understood the legal ramifications. However, he said that seemingly no responsibility was being attached to the Constitutional rights to strike. Innocent individuals,  many of whom could not afford to take action, ended up out of pocket, while the trade union body was claiming support of their rights, but not accepting responsibility. He would still submit that that would need to be addressed.

Mr B Mkalipi (ANC) said that if a window was broken, the policy could arrest and charge the person causing the damage, and the person suffering the damage could sue for civil damages under the common law.

Adv Swart reiterated that the problem in suing the unions lay in proving the link between the union and the perpetrator. He suggested that the responsibility would be on the union to disprove that.

Mr Mkalipi reminded him that this was a democracy.

Adv Swart responded that discussions on rights should be linked to discussions on responsibilities. He suggested that the Committee should deliberate the matter further.

The meeting was adjourned.