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JOINT MONITORING COMMITTEE ON IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF WOMEN
24 October 2001
UNEMPLOYMENT INSURANCE BILL; BRIEFING BY COMMISSION ON GENDER EQUALITY; IMPLEMENTATION OF CEDAW AND THE BEIJING PLATFORM OF ACTION: BRIEFING BY MASIMANYANE
Chairperson: Ms P Govender
Unemployment Insurance Bill [B3-2001]
Commission on Gender Equality: Presentation document (Appendix 1)
Legal Opinion on the Unemployment Insurance Bill
Masimanyane Study Report on CEDAW
The Commission on Gender Equality informed the Committee that they had obtained legal opinion on Clause 24 of the Unemployment Insurance Fund Bill. According to this opinion the clause, which deals with maternity benefits, is unconstitutional on the basis that it discriminates against women.
Masimanyane presented the findings of research conducted on behalf of the Committee. They discussed the following issues: stereotypical thinking; cultural, religious and traditional practices, which discriminate against women; rural women; abuse and violence against women; maintenance; HIV/AIDS and men's views. Members expressed concern that Masimanyane had been unable to visit all the provinces. Members undertook to assist Masimanyane to conduct further research in areas such as the Northern Province.
Commission on Gender Equality
Ms F Seedat referred to the fact that women who take maternity leave are not getting a full salary during their leave period. The Commission had made representations on this issue in March but the Department had done nothing about it. It is for this reason that they had obtained legal opinion.
According to this legal opinion Clause 24, on maternity leave, is unconstitutional on the grounds that it discriminates against women. The clause contravenes various sections of the Basic Conditions of Employment Act (BCEA), the International Labour Organisation (ILO) Maternity Protection Convention and Recommendations, as well as the Constitution.
· The inconsistencies with the BCEA are as follows:
-It is inconsistent with S25 (1) of the BCEA, which provides for the four-month leave period as being a ceiling and not a floor.
-S25 (3) states that an employee may not work for six weeks after the birth of her child, unless a medical practitioner or a midwife certifies that she is fit to do so. According to the Bill, one's leave depends on how long one has worked. Thus, a person could in terms of the Bill be entitled to fewer than six weeks leave (and this contravenes the BCEA).
-The Department did adopt S25 (4) of the BCEA, except that they had initially referred to the period of 'confinement'. As this did not make sense, it was changed to refer to the 'last trimester'.
· The ILO Maternity Protection Convention and Recommendations recommended that employers should endeavour to pay women on maternity leave their full income during their leave period. Although these are merely recommendations one has to bear in mind that SA is still a signatory to the Convention and should therefore strive to implement it.
· The fact that women on maternity leave are only entitled to between 30% and 60% of their full salaries is in contravention of the Constitution. The provision is discriminatory, as only women are forced to take maternity leave. It ignores the fact that bearing children is a different form of labour, as it benefits the broader labour market. The State and the Employer should bear the cost of the woman's maternity leave.
The BCEA advocates for full leave pay over a four-month period and 60% over a two-month period. This would apply to only the most vulnerable workers, e.g. the domestic workers and should be provided by the State. To those women who earn above a certain amount the State would pay for the benefits to which they are normally entitled. The Employer would pay the difference.
The Commission is currently awaiting a legal opinion from Senior Counsel, which they hope will reinforce the opinion they have already received.
The Chair asked if the Commission has made a presentation to the Portfolio Committee on Labour.
Ms Seedat answered in the affirmative, adding that it has also presented in the labour study groups. In March they had presented the opinion at the public hearings. None of their recommendations have been reflected in the new amendments. The legal opinion had been given to the Committee on Tuesday, 23 October.
The Chair asked the presenter to repeat the three points dealt with under the BCEA.
Ms Seedat said that the points were S25 (1), S25 (3) and S25 (4). The Bill does not deal with these issues at all.
Ms L Maloney (ANC) asked if the Commission has considered women who have abortions. Do the same provisions apply?
Ms Seedat admitted that the Commission has not even considered this issue, but that this is an issue that should be examined.
Ms M Magazi (ANC) asked if the issue of maternity benefits applied to Members of Parliament as well. If not, why not?
The Chair said that Members are not covered by the legislation. This may have to be considered. Ms Seedat stated that the legislation only applies to persons earning below R93 000 per annum. Members obviously do not fall into this category.
Dr U Roopnarain (IFP) asked what happens if members have already used up all their Unemployment Insurance Fund (UIF) benefits. Are one's UIF benefits affected each time one falls pregnant?
Ms Seedat responded that the Department has delinked UIF benefits from maternity benefits. If one uses one's maternity benefits, it does not compromise one's UIF leave or credits.
The Chair referred to the proposal that the State should pay for the most vulnerable workers. She suggested that the Minister should determine the cut-off point for salaries. She asked if there had been any proposals on this issue and what the Employer's responsibilities are.
Ms Seedat responded that the Commission does not have access to the Department's model. The Commission has proposed a model based on the household subsistence level, e.g. If the household falls within the poverty level, withholding a fraction of her salary will plunge the household into further poverty. The Department will determine the figure depending on the Fund. It is important that they start somewhere, as the figure can always be increased later. With regard to the lower levels the responsibility will initially have to be shared with the State, as the lowest level workers have very little negotiating power. They are therefore unlikely to get the employer to pay the entire salary. One also has to remember that the Bill only applies to women who work. They are therefore only able to benefit a limited sector of the female population.
Ms S Maine (ANC) criticised the Commission for intervening at such a late stage in the processing of the Bill. She asked why they could not have intervened earlier.
The Chair responded that the Commission had presented to the Committee in March already. However the Department had not addressed any of their concerns. It is important for all the parties concerned to utilise their different strengths and capacities in order to work together more effectively.
Ms Seedat continued that the Department had not taken into account any of the proposals of the Commission and had not provided any explanations.
Ms Maine asked what the response of the Labour Committee had been.
Ms Seedat responded that they had submitted their written presentation to the Labour Committee on Friday. The Labour Committee had not engaged on it. She added that if this Bill is passed it would be challenged by both the public servants (who are not adequately covered) and the women advocating for maternity benefits.
Ms Maloney asked which parts of the Bill are unconstitutional, i.e. is it only Cl24?
Ms Seedat answered that they had only obtained legal opinion on Cl24.
An ANC member asked if any public hearings had been held. It is important to hear from the affected parties.
The Chair responded that there had been public hearings at which the Commission too had presented.
The Chair asked how the Committee wished to take this matter further. She asked for comments on the 100% payment for lower paid workers by the State.
Ms J Semple (DP) asked where the money would come from for its implementation and how one could ensure that it would be included in the budget.
Ms J Kgoali (ANC) suggested that the Committee should call on the Minister of Labour to appear before them. He should explain the problems being experienced and should be told that the Committee has tried everything but is getting no response. If he then fails to respond it will be necessary to approach the Presidency.
Ms J Vilikazi (IFP) asked if the Bill applies to temporary workers as well.
Ms Seedat said that this issue was being investigated under the category of domestic and seasonal workers. They were looking at the situation where a worker works full time, but for five different employers per week.
The Chair asked if the Bill has gone through the NCOP process.
Ms Seedat explained that it has not.
The Chair suggested that the NCOP members of this Committee should get clarity regarding the budget before the Bill reaches the NCOP. The Joint Committee should approach the Labour Committee to determine where the process is now and the possibility of intervention. It is however important to determine whether members support the approach being proposed by the Commission. She asked whether members were in agreement.
Ms N Sigabi (DP) said that the Democratic Alliance (DA) would have to consult with the party first.
Dr Roopnarain agreed with the Chair's proposal on behalf of the Inkatha Freedom Party.
Ms Kgoali asked if it was not possible to agree as women to take the matter forward. Political differences should be put aside in order to deal with issues affecting women. The majority of members present agreed on the need to move forward.
Ms O Mndende (UDM) agreed to move forward on behalf of the United Democratic Movement.
Ms Sigabi insisted that the Democratic Party wished to consult first.
The Chair, Ms Govender, sought clarity with regard to process.
Ms Semple suggested that the Chair should still proceed.
The Chair stated that this was the first time that there was a lack of consensus in the Committee. Members should focus on the brief of the Committee, which is to improve the quality of life of the poorest women in SA.
The Chair proposed that the following steps should be taken:
-There should be a meeting with the Labour Committee Chair and Study Group. They should determine the timing of legislation and how to move forward. They should also focus on the issue of costing.
-The Committee should obtain information held by the Labour Committee and the Minister.
Ms Sigabi wished to clarify the DP position. In principle the DP agrees with the proposal but they wish to consult with regard to process.
The Chair explained that she would have to meet the Chair and Whip of the Labour Committee on that day. They would attempt to meet with the Minister the following Wednesday. One person should co-ordinate the NCOP process.
Ms Mndende asked if domestic workers in the rural areas were dealt with on the same basis as those in urban areas.
Ms Seedat answered in the affirmative, saying that there was no discrimination between domestic workers.
The Chair wanted information on what has been accomplished and which issues are still outstanding.
Ms Seedat replied that the issue of delinking maternity leave from UIF benefits has been dealt with. They are now looking at ways in which these benefits will be distributed. In the past workers were told from which UIF office they could claim their benefits and this was often very inconvenient. Now workers are able to say at which office they wish to claim their benefits. The issue of domestic workers has therefore been dealt with quite well thus far. The main outstanding issue is therefore that of maternity leave and benefits.
The Chair suggested that the Committee might have to cancel all invitations that it had sent out for the following two weeks. They should then focus on the reports on violence, poverty, HIV/AIDS and smaller reports, which would form part of the Committee's annual report. They may also have to use Wednesday, 16 November to evaluate the year's progress.
Presentation by Masimanyane
The Chair explained that the Committee had written to Ministers to ask what they had done to implement the provisions of the Convention on the Elimination of all forms of discrimination against women (CEDAW) and the Beijing Platform of Action (BPA). Although they had received responses it had been necessary to request Masimanyane to conduct a survey on the implementation in the different provinces.
The presenter, Ms L Vorster, explained that the team had combined their expertise (which had consisted mainly of counselling women in the different areas) in order to conduct the survey. Their work was based on three principles, viz. equality, non-discrimination and state obligation.
Mr C Harper explained that the focus had been on five provinces, viz. The Northern Cape, the Eastern Cape, the Western Cape, KwaZulu- Natal and Gauteng. They had interviewed only three women in the Free State. Women were interviewed on the following bases: individually, as groups and as a group at the Conference on Racism and Gender. Interviews had ranged from an hour and a half to three hours.
The written presentation deals with the following issues:
Stereotypical thinking: The presenter dealt with the views of women and men, the portrayal of women in the media and the issue of stereotyping in advertising.
Cultural, religious and traditional practices which discriminate against women: The focus was on Muslim practices, Hindu temples, Christian Churches, virginity testing, traditional practices related to puberty, birth rituals and burial practices.
Rural women: These women suffer oppression under cultural and traditional laws. They are often left in rural areas while men seek work in the cities. The lack of basic services in the rural areas makes life in these areas very difficult.
Abuse and Violence against women: This problem is very rife. Very few women are aware of the Domestic Violence Act. Police are often indifferent and tend to protect male abusers. The rape of disabled women is a common occurrence. In addition there was also a high incidence rape of school girls, date rape and acquaintance rape.
Maintenance: Courts are unwilling to assist women. Clerks of the Court are insensitive and fail to assist women who request it. Courts are unwilling to initiate garnishee orders and women often have to wait for money for months.
HIV/AIDS: No pre-or post-test counselling was done. Many communities lacked access to health care facilities. Women with HIV/AIDS were not treated with dignity and clinic staff did not practise confidentiality. Treatment at hospitals was poor. The poorer people are most vulnerable to contracting the virus. As Black African women are the poorest they are the main sufferers of the disease. Poverty impacts heavily on the life span of sufferers, as women very often have to decide whether to buy food or drugs.
Men's Views: Men were aware of women's rights but said that said that women were not allowed to exercise these rights in their homes. Many said that the government had gone too far with women's rights.
The following positive changes were noted:
-Women had new spaces within the family and the community.
-They were aware of some rights
-They had some knowledge of the law and programmes
-New opportunities existed for women.
The following obstacles were identified:
-Women have a low status within all communities.
-There was a lack of information on policies and programmes
-Stereotypical images and prejudices prohibit women's development
-There was no standard response by government agents, the private sector, etc.
The following was the targeted action plan:
-Forge strategic alliances
-Set time frames
-Establish a model
-Train persons to develop data collection systems
-Set up complaints mechanisms
-Advertise/ market the concept
Ms Vorster suggested that the Committee should acknowledge the participants by virtue of either a letter or visits.
The Chair said that it would be possible to send out letters.
The Chair asked how the Committee should take the work forward and react to the research (which is still in progress). The Committee should consider how they would work with Masimanyane to ensure that the remaining provinces are also covered.
An ANC member said that it was clear that women had very little knowledge of their rights. The media needs to be involved in informing people about their rights. In addition members should listen to people's problems and give advice. With regard to the issue of HIV/AIDS there needs to be an increased awareness with regard to its transmission.
Ms Sigabi appreciated the extent of the research done. As the presentation had occurred, she had been considering the different statutes which could have a bearing on the various issues. With regard to the Northern Province and Mpumalanga, she asked how extensive Masimanyane's networks were in order to reach these provinces.
Ms Vorster responded that they had been prevented from visiting the other provinces due to time restrictions. They do however have the networks. The Committee could make suggestions as to how Masimanyane should proceed after reading their final report.
Ms D Nhlengethwa (ANC) referred to the fact that the father's failure to pay maintenance often led to children having to drop out of school. She said that NGO's like Masimanyane should get involved to inform schools that the Constitution guarantees the right to free education at that level.
A panel member stated that although schools were aware of the School's Act it was difficult to implement. Masimanyane is working with the Department of Education to ensure that the Schools Act is being implemented.
Ms Maine said that the Committee needs to read the entire report so that they could make written submissions to Masimanyane.
The meeting was concluded.
Appendix 1: Commission on Gender Equality
Wednesday 24 October 2001 - Section 24 of the U I Bill
Presentation to the JMC on Quality of life and Status of Women
On Monday the Commission sought legal opinion on the constitutionality of Section 24 (Maternity) in the U I Bill. According to this opinion:
"in order to achieve the Bills objectives to comprehensively "de-link" maternity benefits from
unemployment benefits and to recognise fully the responsibilities that are inherent in maternity, the Bill must provide for a full salary component upon maternity. Anything short of this amounts to unfair discrimination on the basis of gender and will render the Bill unconstitutional."
(Legal Opinion on the Unemployment Insurance Bill - page 4)
The Commission has also briefed its attorneys in order to get a second opinion from Senior Counsel. We expect to have this available by Monday 29 October at the latest.
During deliberations on the Bill the Commission argued that limiting maternity benefits to between 60 and 30% (on a sliding scale depending on how much one earns) in effect:
a. discriminates against women on the basis of their gender
b. penalises women for engaging in maternity activities
c. places the burden for financing maternity labour squarely on the shoulders of women (and at a fraction of their original salaries) and
d. frees both the State and employers from responsibility for financing the costs of reproductive labour
To alleviate this problem the Bill should endeavour to at least cover the most vulnerable workers. We therefore propose that the Bill should allow women on maternity leave who:
a. earn below a particular threshold (to be determined by the Minister) to receive their full income as a maternity benefit from the UI Fund and those who
b. earn above this threshold to earn their full income through a combination of the normal UT benefits and a top-up to 100% of their salaries from their employers
This is captured below:
Part D: Maternity benefits
S24 (1) Subject to section 14, a contributor who is pregnant is entitled to the maternity benefits contemplated in this Part for any period of pregnancy or [confinement] the time of delivery and the time thereafter if application is made in accordance with prescribed requirements and the provisions of this Part.
(2) [Subject to subsection (3)], Notwithstanding sections 12 and 13. a contributor earning below an amount determined by the Minister must be paid: [the difference between any maternity benefit paid to that contributor in terms of any other law or any collective agreement or contract of employment in each week of] the remuneration the contributor would have received if the contributor had not been on maternity leave, for a period of 17.32 weeks, the onset of which is determined according to the period contemplated in section 19(2) [and the maximum weekly benefit payable in terms of section 12(2).]
(3) A contributor earning above the amount contemplated in subsection 2 must be paid the maternity benefit payable in terms of section 12(2).
(4) [(3) When taking into account a] Any maternity leave paid to a contributor in terms of any other law or any collective agreement or contract of employment, shall not effect the contributors entitlement to benefits payable in terms of this Act provided that. the [weekly] maternity benefit may not be more than the remuneration the contributor would have received if the contributor had not been [in confinement] on maternity leave.
(5) [(4)] [For purposes of this section the maximum period of maternity leave is 17.32 weeks.] A
contributor is entitled to at least four consecutive months maternity leave
(6) No contributor may work for six weeks after the birth of her child unless a medical practitioner or midwife certifies that she is fit to do so
(7)[(5)] A contributor who has a miscarriage during the third trimester of pregnancy [once she has been confined] or bears a still-born child is entitled to [a maximum] maternity benefit of six weeks after the miscarriage or stillbirth whether or not the contributor had commenced maternity leave at the time of the miscarriage or stillbirth.
We hope that with this amendment we will be able to prevent discrimination on the basis of gender as well as begin to provide access to basic maternity rights.
LEGAL OPINION ON THE UNEMPLOYEMENT INSURANCE BILL [B3 – 2001]
SOUGHT BY: COMMISSION ON GENDER EQUAHTY: 22 October 2001
1. The unemployment Insurance Bill (the Bill) provides for maternity benefits of up to a maximum amount of 60% of the applicant's salary. It further provides for a four month maternity leave period.
2. The Bill also envisages the "de-linking" of maternity and unemployment benefits. A feature of the Unemployment Insurance Act, Act no.30 of 1966, is that maternity and unemployment benefits are "linked," the effect of which is that women who draw maternity benefits use up their unemployment benefits. There is wide consensus amongst the drafters of the Bill and various commentators on the Bill that the effect of this provision is discriminatory in it's impact upon working women. Hence the attempt at reformation in the Bill which disallows the erosion of unemployment benefits when the applicant woman claims a maternity benefit.
3. Advice is sought regarding the concept of maternity benefits in the Bill, more particularly whether the percentage of benefit an applicant is entitled to at the time of maternity leave is constitutional and in line with South Africa's commitments under international law.
4. As argued below, it is clear that the construction of the percentage benefit in the Bill amounts to unfair discrimination against applicants for maternity benefits on the basis of gender and is therefore unconstitutional.
5. International Labour Organisation (lLO) Maternity Protection Convention and Recommendations.
5.1 ILO Maternity Protection Convention (No 191 0f 2000) conceptualises of a growing need to provide protection for pregnancy, which is the shared responsibility of government and society.
5.2 In terms of Article 1(2) of the above Convention, the importance of increasing cash benefits to the full amount of the applicant woman's previous earnings is stressed.
5.3 The above Convention illustrates the latest shift in the conceptualisation of maternity benefits internationally. Maternity benefits are vie\\ed as distinct in nature, more particularly, in relation to unemployment benefits. The distinction is in line with the attempt in the Bill to 'de-link" maternity and
unemployment benefits. Nonetheless, this distinction is not fully realised in the manner conceived in Convention, as the Bill provides for a maximum cash benefit of 60% of salary. This is contrary to the recommendation of providing for the full amount of salary as stressed in the above Convention.
5.4 South Africa is signatory to the ILO Conventions. As such, South Africa has incurred certain obligations in terms of it's stated commitments under International Law. South African policies and laws must, in terms of these stated obligations conform to the principles set out in the international instruments. It would appear that the Bill does not live up to the standard articulated in the Convention as regards the percentage of benefit an applicant woman would receive were the Bill to become law.
6. Convention on the Elimination of All Forms of Discrimination Against Women CFDAW)
6.1 South Africa ratified CFDAW in 1995.
6.2 South Africa has, in terms of Article II of the Convention, incurred an obligation to ensure that women are not discriminated against on the grounds of, inter alia, maternity and pregnancy.
7. Constitution of the Republic of South Africa
7.1 The opinion set out above raises the important consideration of whether the construction of maternity benefits in the Bill, as a legislative measure about to be embarked upon by the state, is a reasonable one both in terms of the Constitution and in terms of leading socio economic rights case law to date.
7.2 The Bill fails to effectively "de-link" maternity benefits from unemployment benefits as already argued above. Maternity benefits are not regarded as distinct in that maternity is viewed as a time of unemployment. As a consequence the benefit is placed at below normal salary, amounts. It can be convincingly argued that the Bill conceptualises that the costs of reproduction are to be borne by women alone, rather than recognising the role of the state and society in providing supportive mechanisms to facilitate the reproductive labour activity of women. This conceptualisation is also contrary, to the principles set out in the ILO and CEDAW Conventions.
7. Section 9(3) of the Constitution prohibits unfair discrimination by the state, directly or indirectly against anyone on one or more grounds inter alia, gender and pregnancy.
7.4 The provision in the Bill allowing a maximum benefit of 60% of salary may certainly constitute indirect discrimination on the basis of gender and pregnancy status, as it would appear that the law would require women to engage in maternity related activities at the cost of their normal salary. This is further exacerbated by what is clearly women's disadvantaged status in society. This latter premise is trite and does not require further elaboration.
7.5 The Bill's construction amounts to discrimination which is indirect in nature. Indirect discrimination occurs where a practice or policy has a disproportionate impact on members of a vulnerable group. Clearly, the impact on the rights of applicants for maternity benefits would be disproportionately discriminatory as only women can ever be eligible for maternity benefits. The Bill thus indirectly discriminates a2ainst \\~men on the basis of gender in that women would be prejudiced in claiming maternity benefits which are not recognised as deserving of the nature of the benefit in it's own right.
7.6 In the Grootboom matter the Constitutional Court held that in relation to a right which imposes positive obligations on the stale, such as the right to have access to social security the key aspect is whether the legislative and other measures taken by the state arc reasonable.
7.7 In terms of section 27 (2) of the Constitution, the state must take reasonable legislative and other measures to achieve the progressive realisation of the right to social security.
7.8 It could be argued that given the states international obligations relating to maternity benefits, all women, regardless of whether they are high or low income earners should be entitled to a full salary once they go on maternity leave.
7.9 However, in terms of Grootboom, the state must have a plan which provides for short, medium and long term needs. In terms of Grootboom, it could be argued that the urgent priority of the state, at present, is to provide full pay on maternity for low income earners.
8 The opinion is that, in order to achieve the Bill’s objective to comprehensively "de-link" maternity benefits from unemployment benefits and to recognise fully the responsibilities that are inherent in maternity leave, the Bill must provide for a full salary; component upon maternity. Anything short of this amounts to unfair discrimination on the basis of gender and will render the Bill unconstitutional.
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