……..article dated 15 November 2020…..
Parliament briefed on Employment Equity Bill
The Minister of Employment and Labour,Thulas Nxesi, has now addressed the Employment and Labour Committee on the Employment Equity Amendment Bill. The motivation for the Bill is to “address apparent challenges such as the slow pace of transformation in the workplace for black people and people with disabilities”.
The Bill proposes to empower the Minister to regulate sector specific equity targets and to prescribe criteria for the issuing of employment equity compliance certificates as a prerequisite for accessing state contracts.
On the issuance of notices regarding the suggested idea of targets, the Minister might be treading on dangerous ground, opposition party members said during the meeting. Legal precedent, they pointed out, had been established that quotas in employment equity plans are not permitted in terms of the Employment Equity Act. “The use of the term ‘targets’ was suspiciously akin to quotas”, they said.
Targets not quotas
After a short opening, mainly focusing on the perceptions held by the of Department Labour (DOL) Relations on the failure of SA business to address BEE, Thembinkosi Mkhaliphi, chief director of labour relations, told MPs that the main thrust of the Bill was to allow the Minister to be empowered to regulate sector specific employment equity (EE) targets in consultation with the sector stakeholders.
A new section, section 15a, gives the Minister authority to publish a notice in the government gazette setting a target in terms of a sector.
Bound by notice
Such a notice could set more than one target for any number of occupational levels or regions within a sector as per relevant factors that apply, he said. Furthermore, targets could be set for different occupational levels, such as senior or junior management. A draft of the intended notice would be published in the Government Gazette with 30 days to comment. on this draft notice.
Any employer employing more than 50 employees will have to submit reports to DOL.
Thembinkosi Mkhaliphi then told MPs that the other major change incorporated in the Bill before them was a new section 53 and this dealt with the issuing of EE certificates of compliance as a condition for doing business with the state.
Small business support
Employers employing less than 50 employees could also apply for a certificate and would only have to answer two questions on whether they were involved in current cases on discrimination before the Commission for Conciliation, Mediation and Arbitration (CCMA). The other question was on compliance with the minimum wage. These certificates for smaller employers were only valid for 12 months.
Thembinkosi Mkhaliphi said all the new EE regulations had been agreed to at NEDLAC. The certificates would be issued online but if inspectors subsequently found justifiable reasons for lack of compliance, then the certificate could be withdrawn.
Regulation 7A listed the criteria for the determination of numerical targets for economic sectors. This included the qualification, skills and experience required to be employed in a particular occupational level; the rate of turn-over and natural attrition within a sector; and recruitment and promotional trends within a sector. These were also all the justifiable reasons why a company could claim they could not meet the targets.
Dr Michael Cardo (People’s Assembly) said the original intention of the Employment Equity Act was to broaden opportunities denied to designated groups in the past and it followed that government was getting it wrong by manipulating outcomes by race. The emphasis should be to create opportunities through skills and staff development, he said.
End of rainbow
He said, “Rather rapid economic growth and an improved education system should be the factors that impacted on staff development, not a minister trying to bend the economy to meet a socio-economic target based on skin colour.”
On why the bargaining councils should not make the decisions on the targets to be set as suggested by Dr Cardo, Thembinkosi Mkhaliphi said there were only 26 bargaining councils and consequently they had no hope of representing a cross-section of the whole economy. “This was the reality which had to be faced”, he said.
In answer to another question from opposition members querying whether a socio-economic impact assessment had been conducted; the possibility of the Bill affecting the private sector’s ability to create skills; the absence of any approach to youth. Dr Cardo asked specifically if lack of skills training with an applicant could be considered as a factor for not complying with the act?
In his virtual responses, Thembinkosi Mkhaliphi said that no Bill could possibly get through the Nedlac process without a socio-economic impact assessment and that all Bills had to have an economic impact assessment done. Dr Cardo’s question had to fall away, he said. On the issue of youth, he said that unfortunately there was no youth sub-category. He offered no opinion on this.
Mkhaliphi seemed to duck and dive on skills training and finally answered with an assurance that all targets and compliance certificates would be considered on a “holistic” basis. He was thanked for his briefing by Mary-Ann Dunjwa, chairperson (ANC)
A few days later a virtual meeting was booked for the for the Committee on Employment and Labour for a briefing from labour department on the Compensation for Occupational Injuries and Diseases Amendment (COIDA) Bill. This time it was the Deputy Minister of Employment and Labour, Ms Boitumelo Moloi who appeared in a virtual link-up with Mary-Ann Dunjwa, chairperson, and again Thembinkosi Mkhaliphi of DOL.
The Deputy Minister noted that there was a Constitutional Court judgement that applied to the COIDA amendment before them compelling the Department to provide further “formulisation on the domestic worker sector.”
Whilst at it….
She asked MPs to note “that even though the Bill addresses the inclusion of domestic workers under the category of employees for purposes of benefits in terms of the Act, there are other significant amendments proposed by this Bill”.
Thembinkosi Mkhaliphi said that currently the Act expressly excludes domestic workers from the category of employees for purposes of benefits under the Act. “To eliminate such discrimination, the Bill removes the express exclusion of domestic workers as employees and this”, he said, “is in conformity with ILO standards.”
Many changes appeared to have been made to the anchor legislation since it appeared that the Bill before Parliament was the first update in a number of years. These include composition of the board of the Compensation Fund; amendments to chapter 3 on finances; amendment regarding accidents whilst in employ ; changes to penalties for non-compliance; changes on medical aids and other matters.
“It all boils down to an updating well-overdue”, said Michael Bagraim (DA), who wondered why “all the torturous changes were being made and not a new law drafted”. A major worry, he said, “was what this new Bill was taking on for the state in respect of car accidents in an attempt to stop employers ‘double dipping’ in terms of the Road Accident Fund”, he said.
Thembinkosi Mkhaliphi responded to this by stating that the idea of COIDA was to look after employees injured at work, including all accidents when working on behalf of the employer, whereas the Road Accident Fund was for generalised accident claims. He was sure the courts would sort this out.
The virtual meeting then tended to wander over many subjects, the Bill being an extensive update to meet current employment conditions and the meeting difficult to follow with interrupted comments, matters even touching the subject of labour broking. This induced the remark from Mkhaliphi that the finally amended COIDA Act would become the anchor law for injury to an employee and “would be the only labour law that defines labour broking as part of the main employer.”
The committee is now to debate this Bill further.