Issued by: Ministry of Labour
13 May 1998
The Employment Equity Bill is one of the key pillars in our "four pillars" of legislation that we set out to enact in our Five Year Plan. The approval of the Bill by the Cabinet today has opened the way for the Bill to be tabled in Parliament during this Parliamentary session. This is a development which will be welcomed by the millions of South African who still continue to be denied access to opportunities for growth and upward development in the various spheres of employment in South Africa. It should also be welcomed by the millions of peace-loving South Africans, of all races, the women and the disabled, and genders, who want us to dispense with our abhorrent past and move to a future that will be characterised by the abundance of opportunities for all our people, including the millions who have been side-lined,
under-developed and discriminated against all along. The approval of this Bill by Cabinet is therefore a victory for South Africa, and for this reason I have great pleasure in announcing this development. I am also very happy to announce that I will be tabling the Bill in Parliament in due course so that it can be discussed during this Parliamentary session.
The process of developing this Bill has been one of the most elaborate and painstaking. On the 1st July 1996, the Green Paper on Employment and Occupational Equity was published and the public was requested to submit their comments by the end of July 1996. The process of drafting the Bill then began and the legal drafters took the comments of the public into consideration in drafting the Employment Equity Bill. The Draft Bill that resulted was approved by the Cabinet on the 19 November 1997.
Various workshops and seminars were held, as the drafting proceeded, to inform the public of progress and to obtain feedback. This consultation process continued even after the draft Employment Equity Bill was published in the Government Gazette on 1 December 1997. The most recent of these workshops was the "Employment Equity Summit" that was held on the 5th February 1998 in Pretoria.
The Bill was then tabled in the Labour Market Chamber of NEDLAC for negotiations in February 1998. A negotiating committee was established under the auspices of the Labour Market Chamber. The negotiating committee comprised of four to five representatives from the business, government, labour and community constituencies, respectively.
Key Changes to the draft Bill since approved by Cabinet on 19 November 1997.
One of the biggest omissions of the earlier draft Bill was the issue of "psychometric testing". It is common knowledge that scores of people have to go through some form of testing or another and that this testing is not always culture-fair and properly validated and, as a result a lot of people get eliminated from the job market even at the very entry stage. The Bill now requires employers to validate their psychometric testing and to take measures to ensure that such testing is not biased against members of designated groups.
In response to some serious concerns about the thousands of employees who would be excluded from the process of employement equity planing, the Bill has now broadened the definition of the employer. Employers who are supposed to prepare employment equity plans, to implement them and to report on their progress (i.e. "Designated Employers") are no longer defined simply on the basis of employing 50 employees and more, but the turnover of the employer has now been incorporated, and defined according to the National Small Business Act, 200 of 1996. This Act has a schedule of annual turnovers for various sectors and the minimum annual turnovers for small and medium businesses are outlined in this schedule. Employers who fall above these annual turnovers will now be designated, irrespective of the number of employees.
From the public responses, as well as from strong representation by most of the parties at NEDLAC, it became clear that the period of 18 months for the submission of the first reports by employers, was unreasonably long. The time period for the submission of reports has been altered so that employers who employ less than 150 employees will now submit their first reports within 12 months of the commencement of the Act and larger employers, those who employ 150 or more will submit their first reports within six months of the commencement of the Act. The period for the submission of subsequent reports has also been altered so that smaller employers (those who employ 150 or less) will now submit their subsequent reports only once every two years, and the larger ones, once every year.
Previously there was a lot of overlapping jurisdiction in the handling of various disputes, between the Labour Inspectors, the Department of Labour ("Director-General"), the CCMA, and the Labour Court. This had the potential of causing tremendous confusion regarding what forum people would go to, if aggrieved, and could have resulted in forum shopping. Consequently, some changes were agreed to and the result of this is that the Commission for Conciliation, Mediation and Arbitration (CCMA) will no longer be involved in handling enforcement regarding compliance with provisions of employment equity plans (Chapter III) disputes. These disputes will be handled by the Labour inspectors and the Director-General. The CCMA will still handle all disputes about unfair discrimination. The Labour Court will still be the final point of appeal in cases where CCMA conciliation has failed or where the compliance order of a labour inspector or the recommendation by the Director-General is challenged.
The factors that have to be considered by the Director-General and by employers and employees in the preparation of employment equity plans, and in assessing these plans have been broadened. Previously, the Bill referred to the "national and regional demographics". This has been changed to the national and regional demographics "of the economically active population". The economically active population does not just refer to working people, but in its broad sense it encompasses people who are seeking employment and those who may have been discouraged from actively seeking employment, but who are employable. The previous formulation gave the impression that the ultimate goal was to reflect the population demographics, as per census, which would include everyone, from kindergarten to old age home.
In conducting their plans and in assessing compliance, employers should now consider the equitable representation "among" the various "designated groups" as well, so that they should not just focus on one particular group disproportionately. Other business constraints have now been incorporated in the assessing of plans, such as the labour turnover (or lack thereof) for employers, as well as current and planned vacancies.
In conclusion, South Africans have again proved that they are capable of reaching consensus on matters that are considered impossible by the opponents of transformation and the prophets of doom. Whilst reactionary institutions and opportunistic politicians were running around causing panic and mayhem in the public arena and raising fears about the Employment Equity Bill, peace-loving South Africans, through their representatives at NEDLAC, were quietly negotiating the Bill and like true sons and daughters of the soil, seeking solutions that would be acceptable to all. With the ushering in of this piece of legislation, at last the long road to freedom will begin in the sphere of employment. Whilst this long road had neared its end in the political sphere, it has only just begun in the economic sphere. Whilst the true renaissance is under way in the socio-political sphere, the economic sphere is still in the dark ages.
This Bill, when passed by parliament, will be one of the instruments of bringing about that renaissance by ensuring the elimination of discrimination against the majority of the citizens of this country, and the opening up of opportunities to people with disabilities, women and black people.
We call on every employer who has not yet done so to take up the challenges of the Bill, in the spirit of reconciliation, economic development and the building of a new South African nation. Employers should bear in mind the purpose and spirit of the Bill. They must attempt, even at this stage, to go beyond the mere compliance with the legislation. In the long run the elimination of discrimination in employment and the providing of opportunities to all South Africans will pay dividends for employers. It is only the employers who will benefit from an enlarged pool of suitably qualified people, from a more committed and skilled workforce and from an employee profile whose diversity and experience-based reflects the new emerging markets and the new consumer trends. Employers therefore have to take up this challenge for their own benefit, rather than out of a desire to avoid government sanction or out of a need to appease external stakeholders.
We also challenge all employees to rise to the occasion by learning about their rights, and by taking new opportunities seriously and delivering their part in the production process.
For further enquiries contact Samantha Henkeman on 082-8891517