Late changes on Employment Equity Bill

February 6, 2022
…..article dated 4 December 2021….

Compliance with regulations made easier…..

Further parliamentary debate on more changes to the Employment Equity Amendment Bill is now programmed for February 2022 to account for certain minor changes proposed to Section 42 of the Bill, unexpectedly called for by the department of employment and Labour (DOL). Sec. 42 deals with the requirement that companies must take into consideration national and regional regulations.

Acknowledging that any changes should have been made before the Bill was tabled and approved by the National Assembly and also `before it was published by Parliament for public comment, DOL said they were making a request for a change in wording of the Bill at the last minute.

Wrong copy

Thembinkosi Mkalipi, Chief Director of Labour Relations, whilst not admitting his department was responsible for an error, told the NCOP’s select committee of employment and labour that Section 42 of the Bill currently stated that employers should “take into consideration regional and national demographics.  “This is incorrect and not in the copy of the Bill approved by Cabinet”, he said.    He asked, “May the wording be changed by replacing the word ‘and’ to ‘or’ so that they can choose between demographics that were either national or regional.  This will make compliance easier for employers”.

Changes not allowed    

The parliamentary legal advisor present told MPs that the difficulty was that it would not be compliant to make any such changes without public comment and it was agreed that the legal advisory office would consider the correct procedure to be followed on how this could be achieved.  Further debate on this possible change will therefore take place subject to such procedural advice.

Labour minister, Thulas Nxesi, who was present for the briefing, introduced the Bill to Parliament with a few of his regular radical statements, comments such as “Government cannot continue to financially incentivise organisations that are anti-transformation and who resist compliance with the country’s laws.”   Also present and logged in was a full team from DOL, including Deputy Minister Boitumelo Moloi and the Director General of DOL, Thobile Lamati.

BEE not working

Minister Nxesi said that self-regulation by employers to achieve objectives of the EE Act had simply not worked and there was a need to review the legislation and regulations which deal with EE compliance certificates, a prerequisite for access to state contracts or to conduct business with any organ of the state.

He also said the proposals before the committee would strengthen the Act after years of minimal compliance, non-compliant businesses being excluded from conducting business with the state.  He sourly added that he was asking Parliament for a speedy resolution of the Bill after what could only be described as a shambles at the end of the last parliamentary session when the same committee failed to form a quorum to approve the legislation going forward.

Summing up

Chief Director Thembinkosi Mkalipi then went through the fine detail of the Bill as proposed to the National Assembly repeating much of what was said when the Bill was introducedMinister holds ground on Employment Equity Bill – ParlyReportSA     

 When it came to question time, Sonja Boshoff (DA) responded strongly on the Bill’s presentation to the effect that, as was the case in the National Assembly, the DA was not supporting the Employment Equity Bill in the NCOP either and now before her. 

The reason for their total refusal to vote in favour of the issue was that the DA was of the opinion that Minister Nxesi was proposing a misuse of state powers; that the entire concept of the Bill was certain to deter investment in the economy; that the economy would be further undermined by difficult and questionable regulations; and cause more job losses contributing to a further increase in unemployment.

Bill not supported

She stated that that the DA could find no way to condone any facet of the Employment Equity Bill.  “Whilst the DA is all for redressing the imbalances of the past, this has to be done constitutionally”, she said.    She asked why the public service was not exposed as well to the same conditions of employment.  She concluded that it was completely undemocratic and unconstitutional for any member of the state, in this case the Minister of Employment and Labour, to set employment targets based on race.

At this point chairperson, Mandla Rayi, intervened in to make the point that the meeting was only for the Minister to give a briefing on the Bill.  Debate and a vote on the Bill was not possible at that stage and a quorum not registered. However, Sonja Boshoff had driven home opposition views early on in the passage of the Bill.  

Better at BEE

Chief director Thembinkosi Mkalipi, assured Ms Boshoff the law applies to all sectors of the economy including all state entities and departments and contrary to what Ms. Boshoff had said and despite the fact government was currently not where it should be, “it was nevertheless doing far better than the private sector on transformation”.

He reminded MPs that in DOL’s view there had been no real movement in transformation of the labour market.  He said that the department had a constitutional perspective to look at and take such into consideration.  “If we set quotas, we are aware that there will be Constitutional Court challenges and whilst we should be able to defend these.  We are convinced that taking a target approach will work better”.

Anchor legislation

Thembinkosi Mkalipi said, “In our view, we have set flexible transformation targets, but these must be met.  If not, employers need to discuss this with inspectors when audits are carried out and produce justifiable reasons for their non-compliance.     If inspectors are not pleased with justifiable reasons, employers would need to be investigated, he concluded.

In the light of the debate and the general thinking expressed, it seems clear that it is ANC policy for the Employment Equity Amendment Bill to be powered through as flagship legislation to represent the ruling party’s policy for the 2022 national elective conference.  

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