AFRICAN NATIONAL CONGRESS
POTENTIAL AREAS FOR SERIOUS RE-CONSIDERATION BY THE PORTFOLIO COMMITTEE ARISING OUT OF THE PUBLIC HEARINGS ON THE EMPLOYMENT EQUITY BILL

INTRODUCTION
On the 21st and 22nd July a number of institutions made submissions before the Portfolio Committee on the Employment Equity Bill. There were a few very significant issues that were raised which warrant some serious re-consideration by the Committee. This is aside from disputes about the NEDLAC procedure, which is not dealt with here. The latter is an issue that is now being disputed by the various parties who were involved at NEDLAC. Some of the key inputs that warrant serious consideration are listed below, under the respective clauses in the latest Employment Equity Bill.

DEFINITIONS
Designated Employer
(a) Varying opinions were expressed regarding whether the turnover of employers should be taken into account in defining a "designated employer". The EE Bill, in its current form, includes the turnover of an employer as a criterion for designation. Whilst Business South Africa and institutions representing smaller businesses claim that this will have negative effects on small businesses, the wisdom of excluding "smaller" employers needs to be examined seriously. Smaller employers are not the best employers as far as labour relations and employment practices are concerned. There is furthermore no constitutional or moral ground for treating employees differently in accordance with whether they happen to find themselves working in a firm with 49 employees or with 51. It is also debatable whether compliance with the requirements of the Employment Equity Bill will have any onerous burden on "smaller employers". It can be argued that the smaller the employer, the fewer its number of employees and therefore the quicker and easier it will be for it to consult, conduct a profile of its small workforce and to prepare an Employment Equity Pan. The Employment Equity Bill, as it is, has gone some way to exempt employers who have lower turnovers and who have less than 50 employees, from complying with the requirements of Chapter III. Employers that employ less than 150 employees will also have different reporting period, they will submit their reports six months later than those with more than 150 employees, and they will also then submit their subsequent reports only once every two years. Clearly, the Bill has made serious attempts to lighten the burden on these employers, without sending the message that they will have no serious obligations to develop and advance their employees. If being small means getting away from obligations to develop and advance employees, then the positive spin-offs of training and development and people advancement as well as diversity will not be reaped by smaller employers. Furthermore, if compliance with legislation that affects the fundamental rights of employees has got to depend on supposed affordability, then smaller employers will not have to ensure that they workplaces are safe and that their employers are protected from hazards. This is because the smaller employers can always argue that they cannot afford safer equipment, because it is more expensive and they cannot afford to purchase protective clothing for their employees and so on. The Portfolio Committee cannot accept this line of argument.

(b) Suitably qualified
Apart from the current disputes arising out of some allegations from Business South Africa, regarding what NEDLAC agreed on, the Portfolio Committee has to consider whether it is not necessary, in the light of what the Bill is attempting to redress, to widen the definition of "suitably qualified". As Clause 20 (3) (a) currently stands, if a person does not have any formal qualifications and has no prior learning, nor "relevant" experience, she or he cannot be considered "suitably qualified". If the Portfolio Committee considers what "Affirmative Action Measures" are, in Clause 15(1), this means that only people with formal qualification, relevant experience and prior learning will actually be the subject of affirmative action. But then one can argue that such people do not need "affirmative action" in any event, since they have "forma qualifications", "prior learning", and / or "relevant experience". Clause 20 (3) (b) recognises that "Affirmative Action" is really meant for people who may not have any of the above, but who need some assistance, e.g. training and coaching, to acquire it. 20 (3) (1,) states that such people should acquire this ability, "within a reasonable time". Perhaps the Committee could look at specifying the "reasonable time". This would be a far more empowering move than to insist, for instance, that blacks, women and people with disabilities, should have "prior learning", or "relevant experience" and I or "formal qualifications", before they can be considered for jobs as trainee pilots. This would be putting the cut before the horse and it would defeat the whole purpose of affirmative action, which is needed because blacks could never acquire any "prior learning" or "relevant experience" to become trainee pilots. The Committee has to seriously consider the incorporation of the ability to acquire, with the necessary support, the "competence’s for the job in question". Perhaps a modification could be considered to refer to the acquisition of "the required competence’s for the job", instead of "the ability". Another potential modification, which may look small but which can alter the formulation drastically, and thereby allay the concerns of some stakeholders, would be to replace the "or" at the end of 20 (3) (a) (iii), with "and". This key amendment would mean that a person cannot be considered "suitably qualified" if all s/he has is "the capacity to acquire, within a reasonable time, the ability to do the job", but only if this is in addition to having any or a combination of the other requirements in 20 (3) (a). It is suggested that such an amendment, especially if it is accompanied by an amendment to 20 (3) (b) that changes reference to "ability" and substitutes it with "competence", could allay the concerns.

(c) People with disabilities
There was a landmark definition in the US Supreme Court, in June, that classified people with HIV as "people with disabilities", under the Americans With Disabilities Act. There were a number of submissions and arguments for defining HIV as a disability that were put before the Committee. The difficulty with defining HIV as a disability, under the "definitions" would mean that employers would now also have to prepare plans that seek to have an equitable representation of HIV positive individuals (People with Disabilities), across all levels and occupations. None of the submissions on this issue, however, recommended that people with disabilities should become "designated groups". The Committee should consider catering for people with HIV under the "Prohibition of Unfair Discrimination" section. A new Section could be inserted that prohibits all forms of discrimination against HIV positive people as unfair. This would also take care of concerns about pre-employment testing, that single out people with HIV, as this would then be explicitly prohibited. There would thus be no need to cater for this again in the clause dealing with "medical testing".

(d) Family Responsibility
A strong case was made for a specific definition of "family" and "partner" in the EE Bill, which would ensure that employees in gay and lesbian relationships, in particular, were not discriminated against. This is of particular concern when it comes to access to benefits and so on. The Committee should seriously consider such amendments and definitions. Some specific recommendations were made by some of the parties.

(e) Designated Group
There is a view that the Constitution makes reference only to "individuals" that were previously disadvantaged and therefore that the Bill was unconstitutional in referring to "designated groups". This is incorrect as the Bill of Rights also refers to "categories" of people who were disadvantage by unfair discrimination. What the EE Bill does is to define these "categories" upfront. Discrimination in opportunities was on the basis of belonging to one group, instead of another. The reservation of jobs was for certain groups and there was no assessment of individual cases, based on any other criteria. The Committee should therefore not accept that when redressing the effects of this discrimination, employers should now evaluate individuals and their supposed "disadvantages' on an individual level.

An issue that the Committee should seriously consider is whether priority should be given to African women, amongst the designated groups. Alternatively, a formulation could be considered that gives priority to the groups that are the least represented in terms of opportunities, at all levels and occupations of the employer, in relation to their representation in the population and region. This way the issue of African women and coloured women, and so on, would eventually be resolved in that they would, in most instances, be the least represented: in higher occupations and levels. Such a formulation would avoid mentioning particular designated groups for preference, and instead would use the current occupational situation as a test, in comparison with the representation of the particular designated group in the economically active population. In this case, the formulation should refer to "each of the designated groups" current representation across all levels and occupations as opposed to the national and regional demographics of the economically active population". The formulation should then require that in the planning, etc, preference should be given to the particular designated group that is the least represented, among the designated groups, at the particular level and occupation in question.

(f) Wage Gap
There is no doubt that apartheid and its policies, particularly labour policies, played a significant role in cheapening black labour and as well as in depriving black and women employees of opportunities for advancement at work. This plays a significant role in accounting for the huge differentials in income, within the workplace. This apartheid wage gap is inequitable. A Bill that attempts to bring about true equity has to address this issue and to address it seriously. In the true spirit of the Employment Equity Bill, employers should analyse their wage differentials and conduct a profile of this. Thereafter they should plan for the reduction of the inequitable wage differentials, in accordance with benchmarks that should be developed per industry. This would still leave employers with room for negotiation whilst compelling them to acknowledge the inequitable wage gap, report on their wages per level and occupation and to plan for the reduction of these, in consultation with their employees. It is recommended that the Committee should endorse this approach.

(g) Psychometric Testing
In view of the expert evidence from the Chairperson of the Society for Industrial Psychology and the expert who accompanied her, it is recommended that Section 8 be altered to refer to "Psychological Assessment", instead of "Psychometric Assessment". This is to avoid disputes about whether an instrument is "psychometric" or "psychological". This recommendation, which comes from experts and practitioners in the field should be endorsed by the Committee. Furthermore, the "editorial change" that the Society for Industrial Psychology recommended, to Clause 8 (a) should be incorporated, i.e. that it should now read, "Has been scientifically shown to be valid and reliable", instead of the current formulation.

(h) Dispute Resolution
The parties at NEDLAC reached full consensus on removing the CCMA from dealing disputes over Chapter III. All such disputes should go to the Department of Labour (Labour Inspectors and then Director-General). This will lighten the burden on the CCMA as it will focus on Chapter II disputes, that deal with discrimination, while leaving the technical disputes, about plans, to the Department of Labour. This change should be clearly incorporated into the Bill. Labour Inspectors already have powers to mediate. These should be clearly spelled out for purposes of resolving disputes over Chapter III.

(i) Other technical amendments
It is recommended that the Committee incorporate all the other technical amendments, which were already agreed to at NED LAC, but which were either left out, or incorrectly drafted. Included among these would be:
(a) recognition of Bargaining Council and Bargaining Agreements. These should bind all employers that fall under the agreement and if such an agreement declares them "designated", they should become "designated employers" irrespective of whether they fall within the threshold or not.
(b) Amendments to Section 53 and 54, to require consultation with the Commission for Employment Equity and with NEDLAC, in the issuing of Codes and Regulations, by the Minister.