DEPARTMENT OF LABOUR

RESPONSE TO EMPLOYMENT EQUITY AMENDMENT BILL, 2012

1. Parliamentary hearings on amendments on EEA and PES Bills

were held on 7-8/08/2013.

2. Both oral and written submissions were received and comments were made on proposed amendments on various sections of the EEA.

3. Responses have been prepared in relation to what has been raised by the public on each section of the Bill.

Response to concerns raised on the Amendments to the EEA (Public hearings on 7-8/08/13)

Definitions – Section 1Definition of designated groups

Concerns by HR City & Centre for Constitutional rights“sub-section 1(b)(ii) Must be clarified - it could be interpreted as inclusive or exclusive of black people only now seeking citizenship”.

Perception that this clause is violating the Constitutional rights of foreign nationals with permanent residency and or permission to work in SA.

Responses by DOL:

This is correct - this clause caters for those people who were unable to acquire/ obtain citizenship as a result of Apartheid laws that existed before 27 April 1994. This individuals would have to proof how they couldn’t obtain citizenship prior to 1994.

This expanded definition is inserted to clarify the groups that are entitled to benefit from Affirmative Action (Chapter 3 of the EEA) not to unfairly discriminate against foreign nationals – all employees in SA are protected against unfair discrimination (chapter 2)

Definition of Discrimination

Concerns: Darcy du Toit

Proposal: definition of what “discrimination” means

DoL Response

This proposal was tabled by Labour at NEDLAC, after long deliberations it was agreed that a definition would turn to narrow the scope of discrimination, therefore it should not be included.

All the social partners were happy

on the code of discrimination which unpacks this area

Definition of people with disabilitiesConcerns: Disability Workshop Development Enterprise & National Council for the blind

Proposal: definition of what “disability” means

DoL Response

The code of good practice on disability clarifies this issue and it is sufficient

Prohibition of unfair discrimination (Section 6 (1))

Concerns: Clicks Group, HR City & Solidarity

To exclude the term “arbitrary ground” as the current definition is wide enough to incorporate this form of discrimination. It will increase uncertainty and open flood gates for litigation

This insertion 6(1) amends the listed grounds in section 9 of the Constitution – this may lead to issues of interpretation

DoL:This clause caters for those subtle/ intangible unfair discrimination acts by employers to exclude certain people irrespective of other characteristics included under prohibited grounds. Example: This is evident in the Income Differentials due to favouritism (i.e. 2 African females doing same work).There is no basis for this concerns as it is not in conflict with the Constitution (Constitution is overarching legislative framework for all laws in the country)

Prohibition of unfair discrimination Equal Pay for work of Equal Value

(Section 6 (4) & (5))Concerns: HR City, Clicks group, Vodacom, Institute of Race Relations & SolidarityThe insertion of 6(4) is not necessary as subsection 6(1) caters for this in relation to ‘arbitrary ground’. It will impact negatively on employment numbers.

The inclusion of subsection 6(5)- how will the Minister assess the anomalies in income differentials and prescribe criteria? Too much powers placed on the Minister in terms of deciding on this matter.

DoL response:This clause was inserted to give effect to the judgement of Mangena and others vs Fila SA (PTY) & Others – where the judge explained the difficulties of not having a specific clause in the EEA dealing with Equal pay for work of Equal value and the concerns to meet ILO Convention 100 obligations. Draft criteria will be informed by International best practices, inputs from remuneration specialists, NEDLAC social partners inputs and public comments before implementation. Also any alleged abuse of powers by the Minister can be challenged in a court of law

Prohibition of unfair discrimination Psychological testing & similar assessments

Section 8Concerns: HPCSA, CAPES, ATP, SIOPSA & Mac Robert Attorneys & Prandex SASECTION 8 (d)New insertion must be specific that any other body must be appointed or delegated by HPCSA: “or any other body appointed or delegated by the Health Professions Council of SA to certify such tests or assessments”.

In the proposed section8(d) there is no mention of the type of assessments that need to be certified by the HPCSA – HPCSA is not qualified to certify all assessments & test, e.g. competence testing as per NQF

DoL response:

This clause was inserted to cater for any future developments in this area should a need arise – this will ensure that should there be any changes in this field – there won’t be a need to amend this provision of the EEA.

This clause only refers to all psychological testing & similar psychological assessment and not competency tests for NQF purposes.

Unfair discrimination claimsSection 10

Concerns: CAPES, Solidarity, Centre for Constitutional Rights & Western Cape Government

Concern over matters being referred to CCMA, the Labour Court is best placed to hear these types of matters. Also issues of limits of authority.

They have a problem with “person” as mentioned in 10(5) (c), which can deny an employer who is not a natural person but affected-propose use of “party”.

DoL response:

There are no legal basis for the CCMA not to arbitrate on unfair discrimination claims - this clause is inserted to protect the Constitutional right of equality of the vulnerable groups in relation to access to justice without incurring legal cost of going to the Labour Court.

This is not an issue as it does NOT exclude anybody

Unfair discrimination claimsSection 10 continues….

Concerns

Include all other forms of unfair discriminations not only sexual harassment

DoL Response

As a compromise with stakeholders at NEDLAC only vulnerable workers who fall below the BCEA threshold will refer all unfair discrimination claims to CCMA, and sexual harassment has been elevated to the same level due to high rate of sexual related crimes in the country.

Burden of Proof: Section 11

Concerns: Prof Darcy du Toit

Proposes to amend Section 11(1)(b) to read as “such alleged discrimination is justifiable in terms of Section 6(2) of this Act”

DoL Response

This proposal is already catered for in the amendment Bill.

Consultation-Section 16 & Matters of consultation- S17

Concerns: BUSA

Concerned about duplication of fines for non-compliance on both sections. BUSA claim that this was agreed to in NEDLAC but was omitted in the bill. Proposes the incorporation of that agreement

DoL Response

There is no duplication of fines as S16 is read in conjunction with S17, therefore there will only be one fine

Employment Equity plan-Section 20

Concerns: BUSA, CAPES & Retail Association

Oppose direct referral to the Labour Court and will only agree to the amendment provided “compliant” is removed

Oppose the power of the DG to impose a fine directly

DoL Response

This is to fast track the enforcement as the present legislation is long and cumbersome.

DoL is in discussion with Labour Court to ensure that these kind of cases will be prioritized.

Reporting: Section 21

Concerns: ABSA, CAPSE & HR city

Propose maintenance of the status quo for two year reporting for small businesses.

Increase admin burden for small businesses.

DoL Response

Currently the majority of small employers report annually despite the current provisions for bi-annual reporting as this process enables to obtain compliance certificate which are handy when bidding for contracts.

The reporting forms have been simplified, previously they were 23 now reduced to 12

Undertaking to Comply Section 36 & 37

Concerns:

Section 36(1) replaces ‘must’ with ‘may’.

DoL Response

This allows for flexibility to give discretion to inspectors and is part of changes to strengthen enforcement.

Removal of Objections & Appeals Section 39 & 40

Concerns: HR City

The employers loose the right to object/appeal

DoL Response

These two provisions are removed in order to facilitate quick enforcement of the legislation through the Labour Court and each case will be dealt with on its merit.

Assessment of Compliance: Section 42Concerns: SABPP, HR City, Centre for Constitutional Rights, Vodacom, CAPES, BUSA

National vs Regional demographics.

Factors to be taken into consideration by the DG before instituting legal proceedings

DoL Response The law currently requires employers

to use both and the changes will assist employers to determine under which circumstances can they use either of the two.

Currently DoL is receiving many enquiries to clarify the situation mentioned above.

This does not prevent any employer using the factors that are removed as their defense in the Labour Court, should this be the case DoL will be obliged to rebuke that. The factors have made it impossible for the DG to enforce the Law e.g. Comair.

Turnover: Schedule 1 (Penalties)

SABPP, HR City, Centre for Constitutional Rights, Vodacom, CAPES, BUSA

Object to penalties linked to turnover

DoL Response

The amount of objections received from employers around this area, confirms that the fines on turnover will be more effective than any other sanction and those employers who comply have nothing to fear.

These fines will be levied by the Court.

Therefore, employers are entitled to put their case in Court.

Thank You…