Speech by the Honourable Minister of Labour, Mrs Mildred Oliphant, MP on the Employment Equity Amendment Bill to the National Council of Provinces

21 November 2013

Honourable Chairperson
Honourable Members of the Select Committee

I am honoured to introduce a number of important amendments to the Employment Equity Act, No. 55 of 1998 (EEA). These amendments are contained in the Employment Equity Amendment Bill of August 2013. Let the house note that these are the first amendments to the EEA 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: Life is much than it was before 1994.

Unfortunately employers have refused or are unwilling to make a leap of faith with regards to transformation. Reports received from employers over the past 15 years clearly show that not much progress has been made. Whites and males, particularly White males, continue to dominate in the middle-to-upper echelons of organisations, according to the report by the Commission for Employment Equity for the 2012 reporting period.

It is clear that the legislation has not induced any serious transformation in the upper echelons where real decisions are taken. It is also clear that the patterns as noted above will not lead to any different results any time soon. The current amendments for EE, therefore could not have come at a better time.

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 mechanisms of the Act; and to ensure that South Africa complies and meets its obligations in terms of the International Labour Organisation (ILO) 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 other stakeholders through public hearings, briefings and availing the Bill on the Department’s website for public comment.

Furthermore, vigorous engagements took place with Organised Labour; Organised Business, Government and Community at NEDLAC (i.e. social partners). These engagements culminated in substantial revisions to the initial 2010 version of the Bill before it was subjected to further Parliamentary scrutiny. The Portfolio Committee on Labour held extensive public hearings on the Bill on the 7th and 8th August 2013 in order to gather information for consideration and application.

Some of the key amendments contained in the EE Amendment Bill include, amongst others, the following:

Amendment 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 (27 April 1994) 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 AA targets and goals at the expense of designated South Africans.

Equal Pay for Work of equal value: New sections are inserted to deal 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.

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 non-complying employers being referred directly to the labour court for a fine.

Arbitration at the CCMA: Introduction of arbitration at the CCMA, and not just conciliation in terms of current provisions, for certain unfair discrimination disputes at the CCMA. This will allow employees an option of referring unfair discrimination cases for arbitration in the CCMA in two circumstances: If the employee’s cause of action arises from an allegation of sexual harassment on a prescribed ground; or lower paid employees (those earning less than the earnings threshold prescribed under the section 6(3) of the BCEA) who will be entitled to refer any discrimination claim to the CCMA for arbitration.

Amendment of schedule 1 on fines/ penalties: Schedule 1 on fines has not increased since the inception of the Act and now have been increased and linked to turnover for non-compliance in order to avoid any circumvention of the Act.

Honourable Chairperson and members,

When this bill is enacted, the Department, together with the CEE which is constituted of all social partners, 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.

I have noted with great concern the draconian and ‘Swart Gevaar” tactics utilised by the DA to demonise the proposed amendments to score political points. Let me remind them once more, like organised business has already done in the newspapers, there are no provisions in the Amendment Bill that sets or promotes any racial quotas or absolute barriers. In fact, the law is clear that employers in consultation with their own employees, must conduct an analysis of their workplaces, prepare and implement their own plan by setting their own targets that is informed by the outcome of analyses and report to the Department of Labour.

Let me thank all those who have contributed towards these amendments, including the CEE, social partners at NEDLAC, the Portfolio Committee on Labour and the Select Committee for their commitment and extensive engagement in order to bring the EE proposed amendments to its finality.

Most importantly, let me thank the public, particularly those individuals and groups who give their time to ensure that South Africa one day, hopefully soon, becomes a fair and equitable society where race, gender and disability should not matter.

With the above in mind, I hereby table and recommend the adoption of the Employment Equity Amendment Bill.

I thank you.