Hansard's unrevised transcript of the Employment Equity Bill, Second Reading Debate, National Assembly, Parliament, Thursday October 24 2013
EMPLOYMENT EQUITY AMENDMENT BILL
(Second Reading debate)
The MINISTER OF LABOUR [Mildred Oliphant]: Hon Speaker, hon Deputy President, hon members, colleagues, comrades and friends, I am honoured to introduce a number of important amendments ... [Interjections.]
The SPEAKER: Will members on my right please take their seats.
The MINISTER OF LABOUR: ... to the Employment Equity Act 55 of 1998. These amendments are contained in the Employment Equity Amendment Bill of August 2013. The House should note that these are the first amendments to the Employment Equity Act since it was enacted in 1998.
The main purpose of the Employment Equity Act is the elimination of unfair discrimination and the implementation of affirmative action measures to bring about equitable workplaces across all occupational levels. This is in line with the work of this government which has worked tirelessly in changing lives of ordinary South Africans for the better, and for which we can proudly say that life is much better than it was before 1994.
Unfortunately, employers have refused or are unwilling to make a leap of faith with regard to transformation. Reports received from employers over the past 15 years, clearly show that not much progress has been made. [Interjections.]
The SPEAKER: Will hon members on my right please take their seats. I have ordered you many times to take your seats. Stop moving up and down.
The MINISTER OF LABOUR: According to the report by the Commission for Employment Equity for the 2012 reporting period, whites and males, particularly white males, continue to dominate in the middle to upper echelons of organisations. The Freedom Charter says: "South Africa belongs to all who live in it, black and white."
The main aim of this Bill is to give effect to fundamental Constitutional rights, including the right to equality, fair labour practice and protection against unfair discrimination; to strengthen the implementation and enforcement mechanism of the Act; and to ensure that South Africa complies and meets its obligations in terms of the International Labour Organisation standards. The proposed amendments have gone through a rigorous process with the initial advice coming from the Commission for Employment Equity. This process included adopting strategies to engage the public and stakeholders through public hearings.
With regard to the amendments of the definition of designated groups, beneficiaries of affirmative action are now clarified and limited to persons who were citizens of South Africa before the democratic era and their descendants or those who would have been entitled to citizenships, but due to apartheid policies were not afforded such. Foreign nationals or those that became citizens after 1994 do not assist employers to achieve their affirmative action targets and goals at the expense of designated South Africans.
The Freedom Charter further says: "There shall be work and security". This clause continues to emphasise that men and women of all races shall receive equal pay for equal work. We have inserted a new clause on equal pay for work of equal value. This deals explicitly with unfair discrimination by employers in respect of terms and conditions of employment of employees, doing the same work, similar work or work of equal value. This also includes contract workers vis-à-vis permanent workers, whether employed by a temporary employment agency or directly by the company.
Strengthening compliance and enforcement mechanisms, securing written undertakings and issuing of compliance orders by labour inspectors were mandatory, even if a designated employer did not comply with the law at all. Securing written undertakings and issuing of compliance orders by labour inspectors have been made discretionary in the Bill, which may result in noncomplying employers being referred directly to the labour court for a fine.
The introduction of arbitration at the Commission for Conciliation, Mediation and Arbitration, CCMA, and not just conciliation in terms of current provisions for certain unfair discrimination disputes, will give employees an option of referring unfair discrimination cases for arbitration at the CCMA in certain circumstances.
With regard to the amendment of schedule 1 on fines and penalties, schedule 1 on fines has not increased since the inception of the Act and now has been increased and linked to turnover for noncompliance in order to avoid any circumvention of the Act.
When this Bill is enacted, the department, together with the Commission for Employment Equity, will prioritise the finalisation of the regulations to bring them in line with the new amendments, and it will ensure necessary system changes to implement them. Thereafter, the department will embark on public information sessions for stakeholders on the changes; how they may affect them, and what should be done to implement them properly.
I would also like to call on our social partners to put their efforts together to ensure that these amendments are implemented. Let me thank all those who participated and contributed towards these amendments, including the Commission for Employment Equity, social partners, Nedlac, and the Portfolio Committee on Labour for their commitment.
Let us work together in making sure that the dreams of our forebears are fulfilled. This Bill introduces measures that will contribute towards making South Africa a better place for all to live in. With the above in mind, I hereby table and recommend the adoption of the Employment Equity Amendment Bill by this House. I thank you. [Applause.]
Mr [Elleck]NCHABALENG [ANC Chairperson of the Labour Portfolio Committee]: Hon Speaker, hon Deputy President, Ministers, Deputy Ministers, hon members, distinguished guests, ladies and gentlemen, there are not many things in life that are predictable except that the ANC will win the elections next year. [Applause.] The ANC will win not because of its beautiful colours, but because of its track record of being a champion of progress. The other predictable matter is the poor transformation track record of this country. It is so predictable that you can almost write an accurate introduction of the 2014 Employment Equity report today.
Achieving real transformation of the South African society has proven to be so tough that it seems as if it will take us 48 years, just like it took the ANC with all its organs to smash apartheid. While the fight for affirmative action makes sense where the minority seeks the levelling of the plain field, it is absurd when it is the majority that is begging for redress. It does sound somewhat preposterous that the majority is struggling to be affirmed in a country where they are in power.
How can a fraction of the population continue to hold affirmation of a large majority of the society to ransom, even worse, when the majority is in power? I have come to accept that black people are generally very kind, patient and a forgiving lot. Please do not get me wrong, I am not for one moment suggesting that this is a bad attribute; that is far from it. However, what worries me and many others is the propensity to rubbish the country's transformation efforts, and at worst, put political roadblocks on the path to a transformed society.
Someone once remarked that one of the reasons the South African industrial relations environment has become so adversarial is the unacceptable and almost annoying levels of inequality. He pointed out that the levels of inequality in our country remain a recipe for instability. The gap between the rich and the poor is frighteningly so large in this country that it finds expression in many facets of our lives.
The trouble with this sorry state of affairs is that one day people are going to run out of patience and demand redress now and not tomorrow. One day it will become so difficult for the ANC to introduce legislation that is enabling and nudging, but will be forced to start introducing legislative instruments that push a bit harder. If the carrot does not yield the expected results, then you may be left with little choice but to start introducing the stick, and a very big one for that matter.
I don't understand why, in general, businesses do not take full advantage of opportunities for self-regulation, but play hide-and-seek until punitive measures are introduced. The Employment Equity legislation is the case in point. For many years, the Employment Equity Act remains a mere enabling legislation with designated employers enjoying the full latitude to set their own plans with no interference from the government.
What we have gleaned from the reports of the designated employers is that they are not meeting the very targets that they have set themselves. This is tantamount to a joke and a very sick one for that matter. The poor performance of the designated employers to meet their own targets is but an invitation for government to intervene. What has happened to the famous call of the employers for self-regulation? Just by way of illustration, after many years since the advent of Employment Equity Act, Africans occupied a mere 12,3%, Whites occupied 72,6%,coloureds occupied 4,6%, and Indians occupied 7,3% of top management positions in 2012.
The new and unusual phenomenon is the number of non-South Africans in top management positions in 2012, which stood at 3,1% compared to 0% in 2002. It seems to me that you need to be a non-South African in this country if you want the Employment Equity Act to work for you. This picture is a source of sadness, and it should not be a true reflection; and I repeat, it is not a true reflection of what many people fought for in this country. Yet there are still those who are calling for a sunset clause on employment equity. On what basis, if I may ask, when the sun has not even risen? Those who are making this call are mischievous and disingenuous at best or at worst contemptuous of our history.
This democracy has worked very hard for business and it continues to do so. The key question though is whether or not business has reciprocated by investing in the transformation agenda? I am afraid the answer is a big no; they haven't. Generally, there is sufficient consensus that the Employment Equity Amendment Bill tackles the correct issues and it is spot-on on what is to be done.
What has happed to the progressive business leaders of the past? You will recall that in the mid-1980s, progressive business formation such as SA Consultative Committee on Labour Affairs, Saccola, argued that business in South Africa had to start doing things differently if they had any hope of influencing and shaping the inevitable new order. The top employer industrialists in this country also understood the role industrial relations would play as the workplace became the terrain of conflict. To pursue this new thinking, business created a consultative forum as a platform through which they could engage the Mass Democratic Movement and the ANC in exile.
In 1988, the old government proposed new amendments to the Labour Relations Act, which included things that were aimed at reversing gains of workers achieved over many years of struggle. The proposed amendments triggered mass action and strikes of the same, if not greater in proportion than those last seen in the period of 1973. This was the fist trigger and a real test to test if business under the umbrella of Saccola was genuine about their resolve to find a new way of doing things in South Africa.
The Bill before us is very mild; and those who are complaining either have no appreciation of the challenge at hand or they just don't care. The proposed stick in the Bill, proverbially speaking, is a mere smack on the palm and nothing to rave about. If we really care about the vulnerable workers and the victims of our ugly past, the Bill should go through without too much farce.
If we truly love our country and Constitution, and what it stands for, then this Bill should be welcomed with warm hands. The ANC cares, and this is not just a slogan. This Bill and what it proposes bears true testimony to how much we care. The Bill takes into account all the issues raised in the Regulatory Impact Assessment exercise, and we are convinced that the socioeconomic benefits far outweigh the negatives.
We are also pleased that the Bill is, by and large, the product of robust engagements by the social partners at Nedlac. Which side are you on? The poor or the rich and well-off? The ANC is for the wellbeing of all, with a bias towards the poor. If things continue like this, we may have to consider making compliance with the Employment Equity Act as a precondition to do business with the state. The ANC supports this Bill. Thank you. [Applause.]
Mr [Andricus] VAN DER WESTHUIZEN [DA Deputy Shadow Minister of Labour]: Adjunkspeaker en agb lede, ek wil graag aan die voorsitter van die komitee sê ook die DA gee om. Daarom steun ons die wysigings op die Wet op Gelyke Indiensneming. Hierdie wet het reeds 'n groot invloed op die Suid-Afrikaanse arbeidsmark gehad en is heeltemal te versoen met die DA se beleid van 'n oopgeleentheidsamelewing.
Suid-Afrikaners se geleenthede in die arbeidsmark is ongelukkig vir te lank beïnvloed deur herkoms en velkleur. Dit het bepaal waar jy woon en werk en watter poste nié vir jou beskore was nie. Ek glo daarom dat almal in hierdie Huis aksies steun wat die onregte van die apartheidsverlede probeer regstel.
Natuurlik sou ons wou sien dat daar meer gesofistikeerde kriteria as ras moet wees om te bepaal wie hulp benodig om die onregte van die verlede te bowe te kom. Vir die huidige blyk ras, hoe kru hierdie klassifikasiemetode ookal is, nog steeds die beste een te wees. Dit is egter ons hoop dat die regering homself in die toekoms toenemend daarvoor sal beywer om 'n beter maatstaf as net ras te vind.
Dit is duidelik dat die opstellers van hierdie wetsontwerp daarvan oortuig is dat daar steeds in terme van vergoeding en byvoordele gediskrimineer word tussen mense van verskillende rasse. Hierdie wetsontwerp maak dit dan ook makliker vir mense wat glo dat daar teen hul gediskrimineer word om hul regte uit te oefen. Die Wet op Gelyke Indiensneming het die potensiaal om op die langer termyn enorme voordele vir die Suid-Afrikaanse ekonomie te bring, maar hierdie wet, indien dit nie met die nodige oorleg toegepas word nie, kan ook bydra tot 'n baie groot verlies aan kundige arbeid vir Suid-Afrika.
Ek wil dus pleit dat gelyke indiensneming toenemend die onderwerp van formele studies sal wees. Die DA is dankbaar vir elke hofuitspraak wat groter helderheid oor die korrekte toepassing van die wet bring. Enigeen wat op 'n hartelose manier eis dat bruinmense die Wes-Kaap moet verlaat ten einde hul regmatige plek in die Suid-Afrikaanse ekonomie en staatsdiens op te eis, is in stryd met die gees van gelyke indiensnemingswetgewing.
English:
The statistics of the Commission for Employment Equity show that we still have a long way to go in order for all race groups to share in an equitable way in the benefits of this country. The statistics also show that the goal of employment equity is so much easier to reach in times of economic growth and under an effective education system. The National Development Plan summarises its approach as follows:
Career mobility and rising incomes are more likely in an economy that is growing rapidly. Selecting good quality black and female candidates will be easier if the education system is producing ever greater numbers of skilled black and female work entrants.
The poor performance of the economy over the last few years has resulted in a weakening of the figures indicating the measure of the employment equity reached in South Africa.
Afrikaans:
Dit kan nie ontken word dat Suid-Afrika 'n groot tekort aan kundige arbeid het nie. Hierdie tekort is oor baie jare aangevul met buitelanders met die nodige kennis en kwalifikasies. Die wetsontwerp vandag voor hierdie Huis het onder andere ten doel om buitelanders van die aangewese groepe uit te sluit. Die skerp toename in plaaslike indiensneming van hoogs gekwalifiseerde en professionele persone, veral vanuit Afrika, is 'n duidelike aanduiding dat die grootste faktor wat regstellende aksie strem die tekort aan Suid-Afrikaners met die nodige kennis en vaardighede is.
Die gevaar met die Wet op Gelyke Indiensneming is juis dat die probleme aan die insetkant van die arbeidsmark kan verdoesel. In die proses kan dit maklik gebeur dat die regering nie hard genoeg werk om te verseker dat almal wat die skool, kollege, of universiteit verlaat met dieselfde standaard van kennis en vaardighede toegerus is nie. Dit is waarom die DA glo dat die regering 'n oopgeleentheidsamelewing moet skep om so die fondamente vir ware regstellende aksie te skep. Ek dank u. [Applous.]
Mr D A KGANARE [COPE]: Deputy Speaker, hon Deputy President, hon Ministers present, and hon members, I stand here on behalf of Cope to support the Bill. The simple reason for our support is because we believe that the normalisation of society after several decades of apartheid should be enforced.
It is really unfortunate that this Bill has to come to Parliament, because there are certain employers who believe that white male domination should still reign supreme in the workplace. This Bill is necessary, because there are employers who decided that the spirit of the principal Act should be undermined.
Instead of embarking on nonracialising the workplace, they resolved that they would give preference to white women and import blacks to meet the requirement of the Act, which undermines the objective of the Act. After almost 20 years of democracy, we annually get reports about how bad we fare in implementing equity in the workplace.
The excuse of the lack of skilled labour cannot really hold water anymore. With a myriad of legislation to finance skills development, we cannot continue to plead a lack of skills, because of the reluctance of those involved to utilise funds put aside to develop these skills. Skills development cannot be left to the Departments of Basic Education and Higher Education and Training alone. Our tripartite partners at Nedlac should take skills development seriously and develop a sustainable programme of action to develop skills in different areas, which would contribute towards economic development. It is important to note that the amendment abolishes discrimination in the treatment of workers within a particular workplace. It also allows the Minister, after consultation with the commission, to prescribe the criteria and methodology for assessing work of equal value as contemplated in subsection 4 of the principal Act.
The Bill allows employees to refer the dispute alleging unfair discrimination on the grounds of sexual harassment to the Commission for Conciliation, Mediation and Arbitration, CCMA. It is consequential therefore that the volume of work for the CCMA might increase, whilst this will make it easier and cheaper for workers alleging unfair discrimination on the grounds of sexual harassment to be resolved speedily. The issue of equitable representation at all levels of the employers' workplace categories has been brought for this reason. The intention is to simplify the determination of employment equity in the workplace.
Our 20 years' experience of attempts to address the employment equity at different workplaces has been met with a lot of resistance, hence this Bill. It is clear that there are employers who are determined to maintain the status quo, despite the existence of the principal Act and its intentions. As a result of this, a director-general is being empowered to apply to the Labour Court to impose a fine against those employers who refuse to abide by the law. The increase in these fines cannot be viewed as unfair, because those who will be taken to court will be those who refuse to comply with the Act.
This Bill also gives teeth to the labour inspectors to enforce the undertaking from a designated employer within a specific period. If an employer refuses to give a written undertaking, that labour inspector is empowered to issue a compliance order. This increase in the responsibilities of labour inspectors can only be carried out effectively if they are given enough resources and training. Training will create abilities and skills to enforce this Bill once it becomes an Act. The procedure to enforce this Bill should be fair and objective.
Cope believes that the proposed insertion of section 64(a) which empowers the Minister to amend the total annual turnover threshold, in order to counter the effect of inflation is a very progressive move. I believe that the earlier that we, as society, deal with the negative effects of apartheid, the better for our future. I hope that this legislation will help our country to move forward in progressively creating a nonracial, nonsexist society in the workplace where workers spend the majority of their time. The problem we have in this country is that we used to have oppressors and the oppressed, and now we only have the previously disadvantaged. I thank you. [Applause.]
Mnr [Pieter] GROENEWALD [FF Plus spokesperson on Labour]: Adjunkspeaker, die VF Plus verskil met die ANC en die DA oor hierdie wetsontwerp. Hulle ondersteun dit. Die VF Plus verwerp hierdie wetsontwerp. Ons is daarteen.
English:
I want to say that this Bill is bad news for the National Development Plan. I see the hon Minister sitting here. This Bill is bad news for the fiscus, because it will not encourage any investor to invest in South Africa.
Afrikaans:
Die VF Plus glo daar moet 'n balans wees tussen die belange van die werkgewer en die werknemer. Hierdie wysigingswetsontwerp hel oor na die belange van die werknemer. Waar kan dit regverdig en billik wees dat as 'n beskuldiging van diskriminasie teen die werkgewer gemaak word dat die bewyslas op die werkgewer moet wees om die teendeel te bewys. Dit is totaal onaanvaarbaar. Ek wil vandag vir u sê dat die vakverbondwese in Suid-Afrika se belange so hoog geag word dat dit die ekonomie van Suid-Afrika geweldig skaad. Dit is nie in belang van Suid-Afrika dat daardie wanbalans plaasvind nie. Die ANC en die DA - kan jy luister en sien - is besig met verkiesingspraatjies. Hulle wil die massas probeer bereik.
English:
I want to say to these hon members: You cannot make the poor rich by making the rich poor.
Afrikaans:
Ons moet die balans kry. As ons die balans het, dan sal ons die ekonomie in Suid-Afrika kan bou.
English:
The hon member said that some people asked for a sunset clause on affirmative action. The FF Plus asks for that sunset clause. Now the hon says that the sun has not risen yet. I want to say to this hon member that it is 2013. It has been almost 20 years since 1994. The sun is not only setting on affirmative action; it is setting for the economy of South Africa if we continue with Bills like these. We can never support it. If you really want to build the economy of South Africa, then you should not even have Bills like these. What we need in South Africa is the best person for the best job. Let merit be the criteria, not the colour of your skin, or else the sun will set on South Africa. [Interjections.]
Mr E NYEKEMBA [ANC]: Hon Deputy Speaker, hon Deputy President, Ministers and Deputy Ministers, hon members, South Africa is one of the 185 member states in the International Labour Organisation, and this has been the case for many years.
The country proudly carries the flag as one of the few member states where core labour standards are enshrined in the Constitution, and has remained a source of inspiration for many countries both in the developing and developed economies.
Human rights activists continue to hail the South African labour laws as among the best in the world. South Africa, besides being a member in good standing, has been one of the leading countries that has made visible contribution in the shape and content of the international labour agenda, and in some cases even sponsored tax on some of the International Labour Organisations recent conventions and recommendations.
The International Labour Conference at its 34th session adopted the International Labour Organisation's convention number 100 on equal remuneration and, in 1958, the International Labour Organisation convention 111 on discrimination in employment and occupation; these two being among the eight fundamental International Labour Organisation conventions. Every International Labour Organisation member state is obliged to follow the principles expressed in the conventions on equal remuneration and discrimination in employment and occupation.
Our country comes from a very divided and a severely unequal past. It cannot be acceptable or be business as usual for the country to have inequality rated as among the worst in the world. It is even more disturbing that the instrument agreed to by all social partners to address this legacy is being treated with contempt by those who are meant to implement it. Wage and income disparities are chronically severe in the South African society. The hard truth is that these things cannot resolve themselves without some interventions.
The South African business community is not synonymous with doing things without being pushed. The spectacular failure of a number of enabling pieces of legislation is the case in point and the employment equity is no exception. The irony is that all social partners agreed that the endgame of employment equity is the right thing to do. If that is the case, then why are we not seeing process on this front? That on its own is overwhelming.
The ambitions expressed in the International Labour Organisation conventions number 100 at 111 are things that we could have certainly relied on our Constitution to address without having to lay down the law. But, knowing the attitude of the average employers and some parties like - I don't want to mention their names - in South Africa we had to go through the pain of drafting legislation to facilitate and regulate this national imperative.
The performance of employment equity is not a case for celebration but that of disappointment and betrayal from some of our social partners. The Constitution of the Republic of South Africa provides for the rights to fair labour practices in terms of section 23 and 9 of the Constitution, where provisions for equality are made; provisions that an employee may raise in the event of an equal pay dispute.
In terms of section 9(1) of the Constitution: "everyone is equal before the law and has the right to equal protection and benefit of the law." The ANC argued that the principle of equal pay for work of equal volume, besides being part of our international obligations resonates firmly with our constitutional ideals. Therefore, the adoption of this Bill is an excellent attempt to promote the Constitution of the Republic.
In a country with high levels of unemployment and where the behave employers in a certain way of dismissing workers, a comprehensive social security protection net becomes key. The empirical evidence points to the fact that it takes no less than six months to secure employment opportunity in South Africa. For this reason, social protection becomes a matter of must and not an option for South Africa.
In addition to many reported complaints of noncompliance, 269 designated employers were placed under the director-general's review process for noncompliance with certain aspects of the Employment Equity Act. They were all issued with recommendations to correct the offending aspects of their equity plans. It is reported that the reasons for such high levels of noncompliance can be placed squarely on the fact that the current law lacks teeth. Even...the fines are set so low that some employers go to the extent of budgeting for them in case they are caught. .
Labour brokers flout the employment equity provisions with impunity. The noise against fines for offending designated employers and their friends sends the wrong message that breaking the law should go unpunished. Why is noncompliance with the labour laws not treated in the same level of importance like those guilty of breaking the competition and tax laws of this country? Does this mean that the labour laws in general and the employment equity in particular, are not equal to other laws of the land? It sounds like some laws are more equal than others. This is absurd!
Passing the Employment Equity Amendment Bill is long overdue and the time to act is now. The ANC cares, and as such, supports the Bill. I thank you. [Applause.]
Mrs [Cheryl] DUDLEY [ACDP]: Deputy Speaker, the ACDP supports the broad intention of employment equity legislation which is to address the inequalities of the past.
But, what is particularly problematic with this amendment Bill is that the democratic process, from Parliament's side, has left business stakeholders feeling that their views have been totally ignored.
Business Unity South Africa's Executive Director, Vanessa Phala, says trend of the labour committee passing Bills without considering the views of business is very, very worrying; and labour expert, Andrew Levy, called the processes of consultation a charade. Ms Phala says the Bill's removal of the right of companies to appeal against the compliance orders is a violation of the principle of administrative justice and probably unconstitutional.
Busa also argued that the too rapid recourse to the Labour Court to deal with cases of noncompliance would be costly and time consuming, and that there should be scope for conciliation in line with the convention of the International Labour Organisation.
What the poor need most are jobs and joblessness among black South Africans has almost tripled in 19 years. Presently, only 3% of black South Africans have completed the necessary tertiary studies for management positions and many of them have only recently qualified and are too young to have gained the experience needed.
The SA Institute of Race Relations says it is not a racist refusal on the part of business to employ black people; it is the skills deficit that is the key issue that needs to be addressed. The skills deficit is so acute that many firms are paying premiums of between 10% and 30% for skilled black professionals.
Now, instead of recognising or addressing these problems, important provisions addressing these practical issues have been removed from the current Act. Under this Bill, maximum fines will start at R1,5 million or 2% of annual turnover whichever amount is greater. For a fifth similar offence within three years, a maximum fine would be R2,7 million.
These proposed fines coupled with the absorption of skills by a better paying public service make it virtually impossible for firms to stay in business while working towards increasing black representation at senior levels.
The ACDP will, however, be supporting this Bill despite our reservations as we recognise that we are facing significant inequality in South Africa. We must make strides in this direction. Thank you.
Mr K J DIKOBO
Mr K J DIKOBO [Azapo]: Hon Deputy Speaker, hon Deputy President, hon members, the Employment Equity Act came into operation in 1998. The purpose of the Act was to address the imbalances of the past and to assist people who were put at a disadvantage by laws and past practices; black people and women.
Analyst and statisticians tell us that very little has changed in the workplace. Top positions in the corporate world are still dominated by white males, with a few black males being sought by companies in order to reach their equity targets.
The main reason for the state of affairs is that the Act is generally difficult to enforce. It is generally vague and lends itself to many possible interpretations. The Bill simplifies provisions of the Act by eliminating unnecessary mandatory steps, as well as mandatory criteria that must be taken into account in assessing compliance.
Azapo welcomes the revision of the definition of designated groups to ensure that beneficiaries of affirmative action are limited to persons who were citizens of South Africa before 1994. This will make it impossible for employers to employ foreign nationals, who became citizens after 1994, to reach their equity targets.
Azapo also supports removal of provisions that made it impossible for parties to refer unfair discrimination disputes to the CCMA. It is good that lower-paid employees will be entitled to refer any discrimination claim to the CCMA for arbitration. The provision that such disputes could only be referred to the Labour Court was prohibitive in that many workers could not afford fees that were charged by attorneys who represented them.
Apartheid in the workplace was based on skin colour. People who were not oppressed on the basis of religion, level of education or some sophisticated criterion were segregated because they were black. There is, therefore, no way of reversing that legacy except by using the so-called race criterion. Or are we expected to use the shoe size or some obscure criterion? [Laughter.]
Minister, as we asked before, we are asking again, when is affirmative action going to start because it has not started yet? Azapo supports the Employment Equity Amendment Bill. Thank you.
Mr [Sej] MOTAU [DA Shadow Minister of Labour]: Deputy Speaker and hon Deputy President, the DA fully supports the constitutional provisions for affirmative action and the objectives of the Employment Equity Act to promote redress and diversity in the South African labour market. The DA believes that it is desirable that individuals from diverse backgrounds should lead, participate in and form part of businesses and other organisations in South Africa, and that corrective action should be taken to achieve such diversity.
However, while we support the general thrust of the Employment Equity Amendment Bill before this House today, we remain concerned about some provisions in the Bill. We believe some of these amendments could have far reaching negative impacts on the labour market and consequently the economy of the country because of unintended consequences.
We always need to remind ourselves that employment equity and affirmative action have very strong inherent weaknesses and in that, they are concerned only with those people who are in employment.
These are people who are already affirmed in that they have a job, and they are being developed and assisted to move up the authority and salary ladders in the economy. These necessary interventions say absolutely nothing, and they do absolutely nothing for the more than seven million South Africans who cannot be affirmed because they are unemployed and remain outside the labour relations framework.
Herein lays the country's greatest challenge and potential threat to our economy and political stability. For instance, complaints of unfair discrimination on the basis of equal pay for work of equal value could prove to be quite complex. This could put even greater stress on the already stretched resources of the Commission for Conciliation, Mediation and Arbitration, CCMA, and therefore regulations in this regard need to be crafted very carefully.
We also believe that linking some penalties for noncompliance to a company's annual turnover could be very risky as some vulnerable designated employers, particularly small and medium enterprises, may not be able to survive such fines and could be forced to shut down at the cost of much-needed jobs.
In a perfect world all designated employers would comply with the law, but we are not there yet. Therefore, laws such as the Employment Equity Amendment Bill should not be made for punitive reasons driven by frustration and impatience. Such an approach merely increases the degree of inflexibility in our labour legislation regime. This raises the barriers to job creation and that cannot be good for employment and economic growth.
The Commission for Employment Equity was scathing in its latest report about the lack of progress in this area. Therefore, government, business and labour need to engender a sense of common purpose and mutual trust with regard to employment equity if this country is to show significant improvement in the next employment equity, EE, report.
Employers should be encouraged to understand that employment equity and affirmative action are business and economic imperatives necessary for effective nation-building and to grow the country's tax base. This is necessary to provide the funds needed to service the ever growing number of newly unemployed workers who survive on finite unemployment insurance benefits, and the millions of South Africans who depend on social grants. Here, we need to remind ourselves that the fact that millions of South African are on social grants is not to be celebrated. It simply means that millions of our people are poverty-stricken. Heavy penalties for those who provide employment and contribute to the growth of the economy, for errant behaviour, could be counter productive and should be resisted. Sometimes incentives can have a more positive effect than punishment. I thank you. [Applause.]
Mr K B MANAMELA:
Mr [Buti] MANAMELA [ANC whip for Porfolio Committee on Labour]: Hon Deputy Speaker, hon members and hon Ministers, we have gone through an arduous process of clarifying why we need this Bill. We think that what is more important is the fact that year after year we have been told by the Commission for Employment Equity that: instead of reversing the inequalities of the past, we are actually deepening those inequalities of the past; that part of the major problem that our country and economy is facing is the deepening inequalities, deepening poverty and deepening unemployment, which significantly and particularly affects black people; and that the provisions as made by the current Employment Equity Act are not sufficient to reverse and to address the economic imbalances of the past.
One of the most significant policy and political decisions that the ANC made in the build-up to the 1994 general elections was: not to be involved in reverse racism; and not to turn apartheid upside down and have a government led by Nelson Mandela that would take revenge on those who were at the helm of the apartheid system.
One of the critical decisions that the ANC made in 1994 was: to ensure that the transition becomes smoother; that everyone - black, Indian, coloured and white - feels that they are part of this particular country; and that they all contribute to the building of this country. The stability that we are enjoying today has been as a result of the compromises which were made at that particular time.
To suggest that today, 20 years after that democratic dispensation, we need to be talking about the sunset clauses is basically to suggest that 20 years later, we can and should be able to reverse the atrocities which were committed for 350 years. It is to suggest that racialism and colonialism, which were imposed for more than 350 years on our own people, can easily be reversed in a period of 20 years. It is to basically suggest that in a period of 20 years we can speak of an equal society and a situation wherein race is not considered an issue, when for 350 years our people were discriminated against and exploited on the basis of what colour they belonged to. This is actually unfair and unjust. In many instances ... [Interjections.]
Mr P J GROENEWALD: Hon Deputy Speaker, on a point of order: Is the hon member willing to take a question? [Interjections.] It will be an easy question.
The DEPUTY SPEAKER: No! Hon member, are you will to take a question?
Mr K B MANAMELA: I am willing to take an answer from him. [Laughter.]
The DEPUTY SPEAKER: He is not willing. Please sit down, hon member.
Mr P J GROENEWALD: If you don't even understand that reference, I can understand that you understand nothing.
The DEPUTY SPEAKER: Hon member, I did not allow you to speak.
Mr K B MANAMELA: The objective of the ANC has been to build a nonracial, nonsexist and democratic society. The foundation of that nonracial, nonsexist and democratic society is what we refer to as the national democratic revolution.
If we are to build this kind of society, what we essentially need is a realisation that to reverse the atrocities that have been committed for 350 years does not need a miracle of 20 years. In fact, what happened 20 years ago was actually and not necessarily a miracle, but it was as a result of the compromises which we collectively entered into, and which we realise are important in order for our society to get into transition.
I think that for some in this House to use those compromises which were made 20 years ago and the perks which were agreed to in the Convention for a Democratic South Africa, Codesa, and in various negotiations, as political campaigning programmes by suggesting that all of those compromises are actually a failure on the part of the ANC in delivering to our own people; and to suggest that the compromises which happened in the World Trade Centre and the agreements which were reached at that particular time are a failure on the part of the ANC, is unfortunate. To use that today in order to get votes when we go to the elections next year is actually opportunistic and has to be exposed. This country is where it is because of the sacrifices and the compromises which have been made by the millions of our people, and we must never ever take that for granted.
Today, as a result of this Bill, trade unions, workers and civil society will be empowered to begin to question why certain people, because of their race, are paid more than other people in a workplace.
Today, because of this Bill, trade unions and civil society will begin to question why certain people, because of their race, will be promoted faster than other people on the basis of their race.
Today, because of this Bill, we will realise the transformation of the workplace. History will be a situation wherein more than 70% of the management in the workplaces are predominantly white and that the majority of the population remain on the sidelines of transformation. The majority of the population remain on the sidelines of what this democratic dispensation is supposed to be offering.
Today, because of this Bill, women, in particular black women, will realise the value of our democracy. Today, as a result of this Employment Equity Bill, farmworkers, wherever they are, will realise why it was important that in 1994 they went out, and even subsequently, to go and vote for an ANC government. It is only because of this Bill that we realise the transformation of our society and changes directly in the lives of our own people. Thank you very much, hon Deputy Speaker. [Applause.]
The MINISTER OF LABOUR: Deputy Speaker, I just want to tell hon Groenewald that it is very surprising that you have come here and said what you have. I don't think that your colleague who is a member of the portfolio committee can say that, because this Bill emanates from the International Labour Organisation, ILO, convention, and your colleague participated in the standard commissions during the ILO conference. Now, you have come here and said that you don't support this, while your member supported what was said in the ILO Conference.
Hon Dudley, firstly, on the issue that was raised by Ms Vanessa Phala, I think it is wrong to come here and say that you have concerns based on the comments by Business Unity South Africa, Busa, because Busa participates in all the structures, such as the National Economic Development and Labour Council, Nedlac, and the ILO. The very same Vanessa is a member of organised business and always participates in the ILO Conference in the African Regional Labour Administration Centre, Arlac, and even at the Southern African Development Community, SADC, level. She agrees with everything that we discuss before we go to those conferences, and even after we have come back home. Therefore, I think you must sit down with her and tell her not to play the double agenda.
Secondly, I want to highlight to the hon members that when you talk about a business, vis-à-vis organised labour, I am not sure which business you are representing because organised business and organised labour also serve in the Human Resource Development Council that deals with skills development issues, which is led by the Deputy President. It is where they identify where there is a lack of skills and come up with strategies on how to work together with the government, including the issues of the farmers. The farmers have asked us as the Department of Labour to take them through the labour law so that they are able to comply with this legislation. I am not sure whom you are representing because we have agreed with organised business and, in particular, with the farmers on these particular matters.
I want to thank all the political parties who have supported this Bill. This is the confirmation that says the ANC leads and the ANC lives. I thank you, Deputy Speaker. [Applause.]
Dr C MULDER: Hon Deputy Speaker, the ANC may lead the DA but they are not leading us. I ask that our objection be noted. Thank you. [Laughter.]
Debate concluded.
Bill read a second time (Freedom Front Plus dissenting).
Source: Unrevised transcript, Hansard
Click here to sign up to receive our free daily headline email newsletter
