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CHAPTER
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SECTION
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COMMENTS
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ORGANISATION
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General views regarding the Bill
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BSA supports appropriate policies to address imbalances caused by the policies of apartheid.
BSA is strongly opposed to those sections of the Bill that deviate substantively from agreements concluded in NEDLAC, which agreements represent considerable compromises on the side of business.
BSA also has a serious reservation about the insertion of a turnover threshold, and the consequent of the Bill on small business.
Support the legislation
Endorse submissions by:
Employment Equity Alliance;
Women and Human Rights Project;;
CLC; UWC;
Collaboration between Human Rights Committee and CCMA
NAFCOC is opposed to quotas, but proposes industry and sectoral targets;
We are supportive of penalties accompanied by rewards to employers displaying good progress in implementing the act.
Black Management Forum broadly supports the Bill
The DPSA’s proposal that time frames for targets relating to the employment of people with disabilities be set in the EEB that
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Business South Africa
Human Rights Committee
NAFCOC
NAFCOC; BMF
BMF
Employment Equity Alliance
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1
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1
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Suitably qualified
BMF supports the notion that potential is an important consideration to determine "suitably qualified".
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BMF
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1
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1
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Occupational category or lever
The definition on the above should be added:
Occupational category or level refers to all categories or levels of employees including chief executive officers and other mangers.
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COSATU
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1
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1
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Definition of people with disability:
The Bill’s definition of people with disabilities is too narrow as it does not take into account the common perceptions that HIV sufferers are disabled or potentially unproductive. These perceptions limit entry into or advancement in employment. HIV should be recognised as a disability.
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Aids Law Project;
Employment Equity Alliance;
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1
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1
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Definition of medical test:
The definition must be read together with Section 6, which prohibits medical testing and therefore prohibits any test. There is however a proviso that medical testing will be allowed on a number of grounds. This means that any test question will can be utilised to ascertain an employees’ medical condition. Employees will therefore continue testing using arbitrary criteria that are irrelevant to the inherent requirements of a job.
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Aids Law Project
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1
1
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Definition of Designated Employer/Turnover threshold
Business indicated that many of its members had reservations with the insertion of a turnover threshold. Administrative chaos will be created in government if untold numbers of small and even micro business are brought in. Employers with very few employees will have great difficulty in complying with the Act, even if their turnover is high.
Turnover Threshold Ambivalence
There is uncertainty regarding the interpretation of the wording relating to the threshold, in particular the fact that the word "minimum" could have unintended consequences If the principle of a threshold is retained clause 1 could be amended as follows:
"designated employer" means-
(a) a person who employs 50 or more employees;
(b) a person who employs fewer than 50 employees, but has a total annual turnover that is equal to or above the applicable annual turnover of a small business in terms of the schedule to the National Small Business Act 1996 (Act 6102 of 1996).
© (As is)
(d) ( as is)
BMF welcomes the consideration of turnover in addition to the consideration of staff complement in determining the status of "designated employer"
Designated employer should be defined as:
(a) any person who employs 50 or more employees:
(b) a person who employs fewer than 50 employees but has a total turnover of a small business in terms of the Schedule to the National Small Business Act, 1996 (Act No. 102 of 1996); or
© ....
(d) ...
(e) Any employer as contemplated in section 14
n of desinated employers, and requests that attention be given to encourage compliance by smaller enterprises.on
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Business South Africa
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COSATU
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The Commission welcomes the broadened definition of designated employers, and requests that attention be given to encourage compliance by smaller enterprises.
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SA Human Rights Commission
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1
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1
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Definition of Family; Family responsibility and partner
A broader definitions(s) is called for.
"Family": should include "partner"
"family responsibility": responsibility of employees in relation to their spouse or partner, their dependant children, or in relation to other members of their immediate family who need their care or support.
"Partner": means a person irrespective of sexual orientation, or marital status who shares an intimate and committed relationship with another person based on a mutual obligation of support for basic living expenses during the period of the relationship.
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National Coalition For Gay and Lesbian Equality: Employment Equity Alliance:
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1
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1
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Definition of pregnancy
Intended pregnancy or any termination of pregnancy should be included in the definition of pregnancy.
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Gender Research Project.
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1
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Delete "local spheres of government" from the definition of "an organ of state"
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COSATU
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1
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Designated Groups
The exclusion of other groupings will, in all probability, give rise to a constitutional challenge, and accordingly request that the minds be applied in light of a constitutional challenge
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SA Human Rights Commission
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1
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1
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The definition of unfair discrimination is not defined sufficiently. This should be developed and the criteria that can be taken into account in determining discrimination; Direct and indirect discrimination; the requirement of intention; the balancing that is required under "unfair"; "disparate impact" should be spelt out.
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Gender Research Project
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2©
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Purpose of the Act
Add:
The purpose of this Act is to achieve equity in the workplace by -
(a) promoting .........;
(b) implementing.............
© promoting the reduction of income differentials between all occupational categories or levels of employment in the workforce.
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COSATU
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II
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5
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Harassment
Unfair Discrimination should include sexual harassment. There is no jurisdiction under the LRA to deal with this subject. Schedule. 72 (a) is repealed by EEB There are also different remedies under LRA and Employment Equity Bill for harassment. These need to be limited.
The Code of Good Practice on sexual harassment should be included under EEB
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Human Rights Committee
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6
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HIV/AID should be specified as a ground on which unfair discrimination will not be permitted Alternatively, Section 6(1) BE AMENDED TO INTRODUCE A CLAUSE WHICH READS:
- " The Immuno-deficiency Virus (HIV) will be regarded as a disability fir the purpose of this chapter only."
Wage Gap:
the wording of the Bill has now been modified to a point where business can no longer support the provisions. Problems with the rewording are;
- collective bargaining is now indicated as the first and therefore paramount measures to address such discrimination
-This implies that a duty to bargain, which is isolated in the LRA
- It is not clear what is meant by "other bargaining":
- There is a substantial difference in saying "an employer must address........rather than saying "where instances in unfair discrimination occur, employers must address...."
The original agreed wording should therefore be inserted in Clause 5(4) of the Bill.
- Delete subsection 6(4)
We support COSATU’s submission. Closing the gap should be a central element of this bill-horizontal and vertical.
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Aids Law Project
Business South Africa
COSATU
National Association of Democratic Layers/ Human Rights Research and Advocacy Project
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7(a)
7(b)
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there are no status in SA that requires or permit testing for specified conditions such as HIV. This provides therefore meaningless.
It is not clear " who" decide whether a medical test is "justifiable". It is also unclear as to when this decision should be made...before or after the test? There is also no specific mention of prohibiting HIV test which is major source of unfair discrimination:
Authorised medical testing, for fair discrimination should anole be permitted where it can clearly be established to be link to the inherent requirements of the job"
It should not be permitted on other grounds stipulated in Section 7(b).
If this Section is not redrafted at the very least the following words should be deleted:
"It is justifiable to do so in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job.
Replace section 7 with the following:
(1) the medical testing of an employee is prohibited, unless-
(a) legislation permits or requires testing: or
(b) it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirement of the job.
(2) After consulting with NEDLAC, the minister must issue a coed of good practice about the extent to which the grounds specified in the sub-section (1) (b) may justify medical testing.
Inherent requirement of the job
Specific criteria constituting an exception on the basis of inherent requirement of the job are to be spelt out. These should be limited to reasons of privacy, decency and authenticity.
The exception should be defined to ensure that women are not excluded from sectors of the labour market that are seen as traditional "male"
because of gender stereotypes.
Section 7 should be strengthened by limiting the cicumstaces when testing will be justiied and b imng th discretio o the employer.
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Aids Law Project
COSATU
Gender Research Project
Gender Research Project
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circumstances when testing will be justified and by limiting the direction of the employer.
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8
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Psychometric testing
Replace this section with the following:
Psychometric testing by an employer is prohibited unless the test being used has been scientifically validated as providing reliable results which do not unfairly discriminate against employees
We endorse the principles underlying the clause regarding psychometric testing. We however want to suggest a minor editorial change in subsection (a) to make the clause more accurate from a technical perspective : "has been scientifically shown to be valid and reliable".
Recommended that the heading be : Psychological Assessments
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COSATU
Society for Industrial Psychology
Society for Industrial Psychology
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II
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10
10(7)
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Dispute Resolution
Conciliation mechanisms so far treat discrimination as an individual matter only and not as a systematic/ institutional issue.
Safeguards the need to build in :
A complainer assistance arrangement is necessary to build in a case for remedy:
Representation By the advocacy group/Human rights institutions;
scearing cases ;
Approval of settlements.
Bills should be amended to allow for class and representative actions
Dispute resolution delays are common for people needing access to legal systems. Cost implications are also a deterrent to applicants. There is a need for a fund to build a body of knowledge around discrimination: also a locus standi for advocacy groups
replace sub-section 10(2) with the following: Any party to a dispute concerning this Chapter, other than an allegation of harassment may refer the dispute in writing to the CCMA within six months after the act or omission that allegedly constitutes unfair discrimination.
Delete sub-section 10(3) and remember the other sections accordingly.
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Human Rights Committee/
Gender Research Project
COSATU
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Chapter II
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In general
the chapter be reviewed and developed in conjunction with the Human Rights commission and the Department of Justice. Uniform anti- discrimination jurisprudence should be developed.
The overall structure of the Bill containing broad anti- discrimination provisions, followed by provisions dealing with special measures for certain groups is appropriate, and should be retain.
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Gender Research Project
South African Human Rights Commission
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chapter III
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.Content Issues/Process questions
CCMA has not jurisprudence in resolving issues in this chapter. There are no mechanisms built into the Chapter to resolve disputes on :
. Disputes regarding who a designated employer could be;
. Failure to agree on an EE Plan
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Human Rights Committee
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12(3)
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. Delete this section as it opens too many loopholes
. Consultation has to take place even with respective organisations of designated groups when drafting equity plans
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NAFCOC
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14
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. Voluntary compliance
Replace this provision with:
(1) An employer may become a designated employer if:
(a) it agrees in writing to be a "designated employer" for purpose of this Act; or
(b) the employer is bound by collective agreement:
(I) which appoints the employer as a "designated employer" in terms of this Act; and
(ii) which was concluded by a bargaining council and extended by the Minister in terms of the Labour Relations Act 1995 (Act no 66 of 1995)
(2) Upon becoming a designated employer in terms of sub-section (1) (a) the employer must notify the DG that it will comply with this Chapter as if it were a designated employer.
(3) Upon employers becoming designated in terms of sub-section (1) (b) the bargaining council must notify the DG accordingly.
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COSATU
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15(a)
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. Measures to promote the reduction of income
Add in the following new clause:
15A (1) A designate employer must implement measures to promote the progressive reduction of income differentials between occupational categories or levels of employees in the workplace.
15A(2) These measures must include:
(a) measures to identify the income differentials between employers in the respective occupational categories or levels;
(b) the setting of targets or ratios for the progressive reduction of these income differentials;
© measures to ensure compliance with:
(I) collective agreements concluded at bargaining council or;
(ii) guidelines or determinations that may set at industry or sector level.
Affirmative Action Measures
Replace sub-section 15(1) with the following:
Affirmative Action measures are measures designed to ensure that:
(a) suitably qualified people from designated groups have equal opportunities and are equally represented in all occupational categories and levels in the workplace of a designated employer; and
(b) people from designated groups are trained and developed in order to ensure that persons from designated groups are eligible for jobs in all categories and levels in the workforce. Add in a new sub-clause 15(3) and renumber the remaining sub-clause accordingly.
Where appropriate, affirmative action measures must address in particular the position of black women.
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19(3)
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Analysis
Add:
The analysis must also include:
(I) a profile as prescribed, of the remuneration earned and benefits received by each occupational category or level of employee within the designated employer’s workforce.
(ii) The income differentiation within the employers workforce as a whole, using a measure of income differentiation prescribed by the minister.
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COSATU
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20(2)(E)
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Employment equity plan
Add in sub-clauses and renumber the remaining sub-clause accordingly:
(E) the measure to be complemented as required by section 15(2);
(f) the timetable for the consultation of matters pertaining to the progressive reduction of income differentials between all categories or levels of employers and the timetable for the implementation of those reductions;
Add in sub-section (6) :
(6) If an employer is a designated employer in terms of section 14 then:
(a the employer must comply with the reporting provisions contained in the agreement in terms of which that employer become; or
(B) if that agreement does not provide for reporting, then the employer must report in accordance with this section.
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COSATU
COSATU
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21
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A crucial footnote:
"...the first report will relate to the initial ) development of and consultation around an employment equity plan. The subsequent report will detail the progress made in the implementation of the employment equity plan."
Originally provided for previously has now been left out. Other footnotes should be reintroduced as it provides vital guidance to the person entrusted with the implementation of the Bill BSA only supports the reduced time periods on the strength of a requirement for a much-simplified first report.
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Business South Africa
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28&29
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Commission for EE
should be broadly representative; Duty should be on the Minister to have due regard in promoting representative of the members as a group.
The Commission should at least include a majority of Black people and women and a significant number of people with disabilities.
The Ministry should look beyond the present suggestion on the composition of the commission to include organisations that have grappled with the subject.
At least three black women should sit on the Commission.
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Human Rights Committee/
Gender Research Project
Employment Equity Alliance/
BMF
Human Rights Research and Advocacy Project
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32
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Report by CEE
This should not only come from the commission but should also come from other agencies:
CCMA; Labour Court; Department of Labour
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Human Rights Committee
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34
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Capacity of inspectors
The preparedness of the present labour inspectorate to deal with the complaints and the level of sensitisation of individuals who have deal with those complaints.
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BMF
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35(1;2);
36(1;3;4;5;6)38(6);39(2;3)
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Deletion: "Designator Employer"
The word has been deleted from these clauses without agreement. But the word has been retained in clause 38(5). This creates unnecessary inconsistency and uncertainty. BSA proposes that the original wording be retained in section 35(1).
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Business South Africa
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41(a)(vi)
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Inherent requirements of the job
The ILO convention 1958(5) recognises this concept. In Chapter III it is not included. When assessing whether designated persons are equitably represented regard should also be had to the fact that the inherent requirement of the job might have an impact on person s being equitably represented. Consideration of decency or privacy might, for instance, require workers of a certain sex. Physiological consideration or reasons of aesthetics or authenticity might also be relevant.
BSA consequently calls for the insertion of "the inherent requirements of the job" as a new clause 41(a)(vi).
Capacity of the Office of the DG
We share the concern of others regarding the capacity of this office to handle the task of monitoring. We are particular curious about whether and how they are going to utilise external resources to assist with the process of monitoring.
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Business South Africa
BMF
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41
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Assessment of Compliance
Add the underlined portion:
"In determining
....................................................................................................in section 15 and 15A, take............
Add in subsection (c), and (e) and renumber the remaining sub-clauses accordingly:
© the extent to which the designated employer has consulted about measures to reduce the income differentials between occupational categories or levels of employees within the its workforce;
(d) the extent to which the designated employer has implemented measures to reduce the income differentials between occupational categories or levels of employees within its workforce;
(e) the extent to which the designated employer has reduced income differentials between occupational categories or level of employees within its workforce.
The countries demographics should be used when defining demographics as opposed to the "economically active population".
The equitable representation the equitable representation of Black women and disabled black women should be taken seriously when assessing compliance
Delete "suitably qualified" from sub-section.
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COSATU
BMF
Employment Equity Alliance/ Community Law Centre; Human Rights Project;
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45
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Forum shopping
The agreement at NEDLAC was that this clause would be amended as consequence of the deletion of clause the 24. Despite the deletion of this clause the 45 is inadequately amended and still allows for forum shopping. Parties can still simultaneously refer a dispute which arises under Chapter II to either the CCMA (Clause 10) or the Director General (clause 42), or both
There are potential undue delays inherent in the DG’s review powers and referrals to the Labour Court. There will be negative impact on the individuals complaint’s. It is recommended that individual cases should be allowed to proceed regardless of the stage in the administrative process.
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Business South Africa
Human Rights Committee
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49(2)(c)
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Punitive damages:
This clause in the latest draft still empowers the Labour Court to impose punitive damages, even though it was agreed during the NEDLAC negotiations that punitive damages would be subjected to legal advice. Legal advice from a senior indicate that the concept is foreign to South African law. BSA calls for this oversight to be corrected.
Attention should be given to a possible amendment to section 49, sa as to introduce explicit powers to the labour court to make orders against an employer for the actions of their employers.
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Business South Africa
COSATU
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53
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Codes of Good Practice:
The agreement at NEDLAC was that the Minister could issue codes of good practice "on the recommendation of the NEDLAD..."
This wording has however been omitted.
BSA calls for the statute to reflect what was agreed at NEDLAC.
Replace sub-clause 53(1) with:
the minister may make recommendation of the commitment and after consulting with NEDLAC:
(a) issue any code of good practice; and
(b) change or replace any code of good practice.
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Business South Africa
COSATU
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54
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Regulation
The NEDLAC agreement was that the Minister may make regulations"....on the recommendations of the Commitment and after consultation with NEDLAC...."
This wording has also been omitted. BSA calls for the wording to be reflected.
Replace sub-section 54(1) with:
The Minister may, on the recommendation of the commitment and after consulting NEDLAC, and by notice in the Gazette, make any regulation regarding.........................
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Business South Africa
COSATU
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59(2)
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The wording of this section should be considered by fleshing out "reasonable steps"as the interpretation of this word could bar a remedy. This is with a view to preventing possible exclusion of a remedy.
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Human Rights Commission
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