COIDA Bill; ILO Convention on Violence & Harassment in World of Work; Draft Code of Good Practice on Prevention and Elimination of Harassment in Workplace; with Deputy Minister

This premium content has been made freely available

Employment and Labour

30 June 2021
Chairperson: Ms M Dunjwa (ANC)
Share this page:

Meeting Summary

Video: Portfolio Committee on Employment and Labour, 30 June 2021

The Portfolio Committee met on a virtual platform to finalise the Committee's proposed amendments (A-List) to the Compensation for Occupational Injuries and Diseases Amendment Bill.

The Committee had made various proposals to amend clause 43(4) of the Compensation for Occupational Injuries and Diseases Amendment Bill which addressed the problems that the Compensation Fund was having with third parties that collected monies owed by the Compensation Fund. It was a clause that had been fiercely opposed in public submissions. The DA called for the omission of the clause but received little support. The proposal by the ANC determined that the Minister should prescribe regulations controlling third parties. The ANC also suggested that the proposal by the EFF was too detailed and should be included in regulations and not the Bill. Option 3 as proposed by the FF+ to utilise the control mechanisms of the  Debt Collectors Act was not favoured as it did not give the Compensation Fund sufficient control over the third parties.  Once the ANC and the EFF had voted in favour of the ANC proposal, Option 1, for Clause 43, the A-List was quickly finalised. The Committee adopted the A-List of Committee Amendments with objections being registered by the DA and the FF+. In the next meeting, it will adopt the Bill.

The Deputy Minister of Employment and Labour introduced the International Labour Organisation (ILO) Convention No 190 on Violence and Harassment in World of Work which had been adopted in the ILO in June 2019 but had not yet been ratified by the South African Parliament.

A key premise of the Convention was that violence and harassment should be outlawed, not just in the workplace but in the more encompassing “world of work”. The Convention was to be implemented in terms of the laws of the country and applied to the broader world of work in all sectors, whether private or public, both in the formal and informal economy, and whether in urban or rural areas. The Department of Employment and Labour  (DEL)  noted that South Africa had several pieces of legislation addressing violence and harassment in the workplace, or the world of work. However, the Employment Equity Act Draft Code Of Good Practice on the Prevention and Elimination of Harassment in the Workplace, published for public comments on 20 August 2020, coalesced information from a range of legislation into a single document. It was envisaged that the Final Code would be published by 31 March 2022 for implementation.

Members welcomed the Code and asked if the Convention meant that there would have to be amendments to the Basic Conditions of Employment Act. Members also asked if the alleged new trend of employers deliberately exposing employees to Covid-19 was covered in the Draft Code. What was meant by “birth” in the section of the Constitution that prohibited the discrimination of people in terms of language and birth? Did the advocacy campaign target employees? Would pamphlets containing the key points be printed in all official languages? Could legislation be drafted to ensure drastic measures could be taken against those who perpetrated violence against women in the workplace? How did one encourage people to speak out as the country was experiencing gender-based violence and femicide? How did one speak out so that the entire citizenry understood the impact of harassment by both men and women in the workplace?

The Committee would need to recommend ratification, but this would be done in a fututre meeting.

Meeting report

The Chairperson spoke briefly on the conditions that had led to SA being at Lockdown Level 4. He welcomed the Deputy Minister of Employment and Labour, Boitumelo Moloi, and noted the apology for the Minister who was in Cabinet. Also noted was the attendance of Adv Nathi Mjenxane, Legal Advisor from Office of Constitutional and Legal Services in Parliament (OCLS); Ms Suraya Williams, State Law Advisor in Office of Chief State Law Advisor as well as Ms Aggy Moiloa, Acting DG, Mr Thembinkosi Mkalipi, Chief Director: Labour Relations and Ms Akhona Mti from Department of Employment and Labour (DEL).

The Chairperson reminded Members that the previous meeting had been cancelled and so the Committee's proposed amendments to the Compensation for Occupational Injuries and Diseases Amendment Bill would be finalised in the current meeting. She explained that the delay had been about third parties in clause 43, which was a weighty matter and she had wanted to allow Members to engage on the matter without rushing them. The adoption of the A-List was not the end as the Bill would be presented in the National Assembly and Members could speak to the Bill in the House.

Compensation for Occupational Injuries and Diseases Amendment Bill: A-List
Adv Nathi Mjenxane, Parliamentary Legal Advisor, presented the Committee's proposed amendments (A-List) and indicated he would work according to page number and line number of the Bill as reference.

Clause 1
On page 2, in line 10, add “occupational” after “Illness” and before “disease”: …“personal injury, illness, occupational  disease or the death of the employee;”
On page 3 line 50, after “Republic”, omit “member of”: ‘‘(b) a director or [member of] a legal person who has”.

Clause 8
On page 7, in line 33, omit “and life enhancement assistance”.
On page 7, in line 34, after “injuries”, add “ occupational”.
On page 7, in line 34, after “diseases” omit “and”.

The clause will read: ‘‘(i) the rehabilitation in terms of this Act [and life enhancement assistance] to persons who have work-related injuries and occupational  diseases;
After line 34 insert: (j) provide psychosocial support subsequent to occupational injury or occupational disease, which forms part of clinical, vocational and social rehabilitation services, and’

On page 7, in line 35, omit “(j)” and substitute “(k)”.

Clause 33
On page 14, in lines 8 – 10, omit all words after “engineer”: in terms of any regulation made under the [Minerals Act, 1991 (Act No. 50 of 1991)] Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002);

Cause 33(a)(d) will read:“(d) of an engineer appointed to be in general charge of the machinery, or of a person appointed to assist such engineer.”

Clause 41
On page 16, in line 13, after “be” to omit “may” and to substitute “must”.

Section 70A(1) (1) will read as follows: Subject to the provisions of this Act, the Compensation Fund, employer individually liable or licensee as the case may be, must provide facilities, services and benefits aimed at rehabilitating employees suffering from occupational injuries or diseases to return to their work or to reduce any disability resulting from their injuries or diseases.

Clause 43
On page 16, from line 47, omit subsection (4) and substitute with the following subsection (4)
Members had suggested three options to amend the clause but the Committee had not been called on to determine which Amendment would be included in the Bill.

Option 1
(4)(a) No third party would be allowed to transact with the Compensation Fund unless they are registered with the Compensation Fund in the manner as prescribed.
(b) All third parties that are already transacting with the Compensation Fund must register with the Compensation Fund within six months after the commencement of the Compensation for Occupational Injuries and Diseases Amendment Act, 2021.

Option 2
“(4)(a) Notwithstanding the provisions of subsections (1), (2), and (3), a third party cannot be registered unless the Minister is satisfied that such third party –
 (i) has the capacity, qualification, financial resources, systems and process to provide quality and ethical services, and
 (ii) has the status of a broad-based black economic empowerment
(b)(i) All registered third parties must display their registration certificate om the manner as prescribed.
    (ii) A registration certificate is valid for three years and may be renewed in the prescribed manner.”
   
Option 3
“(4) Any third party claiming medical costs from the Compensation Fund either on behalf of a medical practitioner or in respect of any rights ceded to it by a medical practitioner, must be registered with the Council for Debt Collectors in accordance with the Debt Collectors Act 1998 (Act No 114 of 1998).”

Clause 43 continued
On page 16, in line 50, to add the following subsection:
“(5) For the purpose of this section, a third party means any entity that transacts with the Fund with the aim of assisting either the employee, employer, medical service provider or pensioner with the processing of claims at the Compensation Fund.”

Clause 59
On page 22, in line 21, to omit ”Director-General” and to substitute “Commissioner”.
On page 23, after line 13, to insert the following:
“(3) No answer by any person to a question by an authorised person or an inspector conducting an investigation or inspection in terms of this Act may be used against that person in any criminal proceedings except proceedings in respect of a charge of perjury or making a false statement.”

New Clause
On page 24, after line 17, to insert the following:
Transitional arrangements
63. (1) Domestic workers and employers must report or submit a claim in the prescribed manner within three years from the date of the commencement of the Compensation for Occupational Injuries and Diseases Amendment Act, 2021 for any accident that had occurred prior to the commencement of this Act.
(2) The validity of the existing licenses issued to the Mutual Associations in terms of the Act will remain effective until new agreements are entered into.”

Clause 63
On page 24, in line 19, omit “63”, and insert “64”.
On page 24, in line 20, after “Act” omit “2020” and insert “2021”.

Deliberations on Clause 43 options
The Chairperson called for comments or approval on the Clause 43 options.

Ms C Mkhonto (EFF) supported Option 1 and Option 2 but wished to see the two combined and an addition.

She proposed as follows: (4)(a) No third party would be allowed to transact with the Compensation Fund unless they are registered with the Compensation Fund in the manner as prescribed. Taking account of  capacity, qualification, financial resources, systems and process to provide quality and ethical services, and has the status of a broad-based black economic empowerment. All third parties that are already transacting with the Compensation Fund will continue to transact and must register with the Compensation Fund within six months after the commencement of the Compensation for Occupational Injuries and Diseases  Amendment Act, 2021.

Ms Mkhonto was trying to avoid a vacuum between the existing Act and the new Amendment Act. Third parties should be given the opportunity to continue to practise while being  given the opportunity to register.

She wished to add another paragraph to her proposal: “If a third party was refused registration, reasons for the refusal had to be given in writing within 7 days.”

Mr M Bagraim (DA) said that the option of scrapping the clause had been omitted from the options. It had been raised at the previous meeting and he was not sure if the omission was duplicitous or whether it was a mistake, but the option had to be there.

He added that when one had to register the third party, the Minister had to be satisfied and, although there were some reasons to consider, it was purely an administrative decision with no recourse, even if the decision was taken on the basis of personal opinion. The Minister could decide that he thought that a particular third party did not have the capacity and that decision would stand.

The Chairperson replied that, as far as she recalled, the option of scrapping the clause had been discarded by the Committee. Did Members agree with including the option of scrapping it? She thought Members had made a proposal on re-working instead, so she did not understand why Mr Bagraim was raising that point.

Ms Mkhonto said that, at the previous meeting, the Members had been given an opportunity to make submissions on the clause. Had there been a submission suggesting that the clause be scrapped?

Ms H Denner (FF+) said that she had proposed Option 3 as it referred to the Debt Collectors Act because that was a body that already had strict compliance criteria and a Code of Conduct and regulated third parties. If third parties registered with that body there would not be an extra administrative burden on the Compensation Fund which was already “up to its neck” in administrative work. Further, third parties would be regulated which was the most important thing and that was what the Amendment aimed to do, and, lastly, through the complaints and disciplinary process that was already in the Act, the Compensation Fund could deal with all third parties on a regulated and consistent basis.

Dr M Cardo (DA) called for the scrapping of clause 43 for all the reasons outlined the previous week indicating the catastrophic impact on the healthcare sector where people stood to lose their jobs if the amendment went through. He did not think that it had not been necessary to table a position made very clear in the meeting of the previous week. As a compromise, he was prepared to entertain Option 3.

Mr M Nontsele (ANC) supported Option 1 on the understanding that the option did take into account all areas of concern, except for the argument of taking away regulation. He was not prepared to argue that position. He wanted to address the problems that were currently in existence in the operation of the Fund. The Bill should not be passed without addressing the problems facing the Fund, including the negative audit outcomes of the Auditor-General.

He appreciated the input of Ms Mkhonto. The proposal in Option 1 allowed for regulations to be drafted indicating all the conditions that would have to be complied with by a third party in order to register. All the conditions in Option 2 were valid and elaborated on the points in Option 1. If those points were contained in the Bill,  it would do away with the need for prescription. However, the process of future changes was onerous if they were contained in the Bill. It was therefore not necessary to list the additional points that Ms Mkhonto had listed in the Bill; those points should be taken into the regulations. Option 1 would address all the shortcomings and ensure that they were dealt with once and for all.

The Chairperson requested input from DEL. Ms Mkhonto had proposed additional terms.  She asked the Legal Advisor if the points under Option 2 should be included in the regulations, rather than the Bill as the regulations would be easier to adjust, if necessary. The Parliamentary Legal Advisor and the State Law Advisor could also provide advice and guidance.

Mr Thembinkosi Mkalipi, DEL Chief Director: Labour Relations, noted that as indicated by Mr Nontsele, Option 1 covered all the issues raised by Ms Mkhonto, even the proposal to ensure there was no break in transactions before third parties could register. He told Mr Bagraim that nothing prevented Parliament from requesting the Minister to present the regulations to the Committee and the Minister would happily oblige as he done in all previous instances.  The DEL favoured Option 1, but the Committee had to make the decision. The Option 3 meant that the Fund would not be in control of the third parties that could work for the Fund. It defeated the rationale for putting the proposal on the table.

He added that if things changed, it was far easier to change regulations than to change an Act, which was a long and complex process.

Adv Mjenxane aligned himself with Mr Mkalipi in supporting Option 1, together with the regulations being drafted and presented to the Committee before gazetting.

The State Law Advisor, Ms Suraya Williams, aligned her opinion with that of Mr Mkalipi. She had been involved in drawing up the options. In Option 2, in clause 4(a) she considered adding ‘where the third party had met prescribed conditions’. A lot of conditions had to be prescribed.

The Chairperson said that Members forgot that the Committee had to conduct oversight and no Executive Member had ever been allowed to do as he or she wished and so there was no point in saying that a Minister could do that. It was the responsibility of the Committee to call the Minister. That thinking would not allow the Committee to move forward. Members should not doubt the constitutional authority of Parliament. Members needed to feel comfortable about the role of the Committee. The unfortunate part was that the A-List could not be put off for further discussion.

Ms Mkhonto was requested to put her additional contribution in writing.

Ms Mkhonto informed the Chairperson that she had emailed it to the Secretary.

Deliberations on Clause 59
The Chairperson raised clause 59 where it had discussed the powers of entry of inspectors the previous week. There had been a proposal by Mr Mkalipi about inspectors producing documentation when entering and searching premises in emergency cases. It was under Powers of Entry. It had been suggested that “Except in cases of emergency” be inserted at the commencement of section 93C(1): “An inspector may enter a home or any other place only…”

Mr Mkalipi read section 93C inserted by clause 59. It had been suggested that in the case of an emergency, that clause should be waived. He had discussed the proposal with the State Law Advisor and the Parliamentary Legal Advisor who had felt that such a waiver would be difficult to defend against a constitutional challenge. Even the police had to have a warrant authorised by a judge to enter restricted places. The Labour Court might issue authorisation; however, if that were challenged constitutionally, it would be difficult to defend. The work of the inspector was not that urgent; it was not as if an injured person were in the building, needing help. The Parliamentary and State Law Advisors had said it would be difficult to justify that an inspector should have greater rights to enter a property than even the police or the National Prosecuting Authority.

He reminded Members that they were talking about situations of non-payment long after the injury or disease had happened. The Health and Safety inspectors were the ones to go in at the time of an accident and assess the accident. DEL had accepted that it would be difficult to defend constitutionally and the DEL and Legal Advisors had felt that it was best to drop the proposal.

Adv Mjenxane agreed that the legal advisors and the Department had had a discussion and it had been agreed that the proposal would affect section 14 of the Constitution, the right to privacy. The proposed action would limit that right to privacy and any legislation that limited constitutional rights had to show justification. They had come to the conclusion that it would not be justifiable in an open and democratic society. Granting such powers to inspectors would be ultra vires and would not withstand scrutiny.

Ms Williams agreed with her learned colleague. They had also taken into account the function of the inspectors and the nature of the offences involved. There had recently been a great deal of jurisprudence developed in the Constitutional Court, mostly in findings against the Minister of Safety and Security, on the right to privacy and the right to dignity. There were lots of rights in the Bill of Rights that weighed against the right to enter. There were lots of strict requirements in such cases and, in 2019, it was determined that in the case of applying for a search warrant, even the name of the person to conduct the search had to be given to ensure that the rights of all parties were balanced in a search. Taking into account all those issues, she and her colleagues had determined that giving the inspectors such powers would not be in correlation with their functions.

The Chairperson asked Members if they had noted this legal advice – that was their job so that when things fell apart, no one could say that adequate legal advice had not been given. The Committee was still at the point of receiving legal advice. She called for comments.

Ms Mkhonto stated that it was in order as it stood. Some emergencies might even require engagement with the SAPS, bearing in mind that the Bill was dealing with domestic workers.

The Chairperson asked that Mr Mkalipi circulate the rules for inspectors when they were ready.

There were no other comments on the A-List.

COIDA Bill A-List: adoption
The Chairperson put the A-List to the Compensation for Occupational Injuries and Diseases Amendment Bill [B20-2020] to the Committee.

Mr C Mdabe (ANC) moved for the adoption of the A-List as amended.

Dr Cardo called for clarity as he was not sure how clause 43 was presented in the final A-List that the Committee was voting on.

The Chairperson said that she was accepting that Option 3 was Dr Cardo’s compromise position.

Dr Cardo stated that the Chairperson was putting words in his mouth. He had said that he was prepared to “entertain” Option 3, although none was really acceptable. But his question was about what would appear in the A-List.

The Chairperson said that Option 1 and 2 had been accepted by Members on the understanding that some of the points would fall under regulations and not be accommodated in the Bill itself.  She reminded him that the Members would not be voting on the position at this stage. The Committee would table a report and Members would argue for and against points in the Bill in the National Assembly, stating why they were in agreement or disagreement, with certain clauses. The process was not yet completed; it would only be completed when Members cast their votes in the House.

Mr Nontsele said that the Members had gone through a process that sought to consolidate the three options. He suggested that the Committee should consolidate its position on clause 43, which he believed should be Option 1, and then the parties that disagreed could register their objections. That would not complicate the process. He supported Dr Cardo in the view that the Committee should have a single definitive position when the Bill was sent to the House. The parties could record their objections if they wished. He suggested that the Committee move on that point and then address the motion as proposed by Mr Mdabe to adopt the A-List.

The Chairperson stated that Mr Bagraim, Dr Cardo and Ms Denner had initially suggested the exclusion of clause 43(4). Ms Denner had then proposed Option 3. The three Members had rejected Options 1 and 2 and supported Option 3. Deliberations and arguments on those options would be continued in the National Assembly. Nothing further could be done at this stage. Why was it necessary that the process had to come to a standstill because of clause 43(4)? There were two views from the Committee – there was nothing wrong with that. Members could justify their preference in the House. The Bill was not yet done.

Dr Cardo asked if the Committee was going to meet again to discuss the A-List as it could not contain the three options. There had to be a single crystallised position for parties to vote on.

Mr Nontsele informed the Chairperson that if his comments were wrong, he apologised and withdrew his suggestion.

The Chairperson told Dr Cardo that he was making things difficult for her. Mr Mdabe said that he was supporting the A-List which would take into account all things that DEL had raised and which Members had agreed on. He had a view, a position. Why did Dr Cardo want the Committee to meet again on the Bill?

The Chairperson asked for assistance from the State Law Advisor.

When Ms Williams did not respond, Adv Mjenxane informed the Chairperson that the A-List was a list of amendments to the Bill and the Committee had accepted all amendments except clause 43 was still under discussion. The Committee had not yet made a decision on that clause. As drafters, he and Ms Williams needed a firm decision on what had to be included in the B-Bill, so there was a need for the Committee to have a discussion and to agree on the amendment.

Ms Williams added that for the drafters to proceed, the Committee would have to vote on the A-List and they would need to know what they were voting for in clause 43. The drafters needed a confirmed decision.

Mr Mdabe proposed Option 1 for clause 43(4) and what had been agreed to by Mr Nontsele.

Dr Cardo said that clause 43(4) should be done away and so there was no need for the amendments.  There was a huge danger in kicking everything into touch and letting the Minister to take care of it. Parliament was in abrogation of its responsibility by leaving everything to the Minister. Despite what had been said about Members being able to take issue with the regulations, they knew that Parliament was abrogating its responsibility to give such power to the Minister.

Ms Mkhonto seconded the proposal for Option 1, provided that the contents of Option 2 is contained in the regulations and that the regulations are brought before the Committee.

Mr Nontsele supported Mr Mdabe and the points raised by Ms Mkhonto.

Ms Denner stated that if the Committee did not want to do away with clause 43(4). She supported Option 3 because it fulfilled the desires of the Department by regulating third parties and did not put an additional administrative burden on the Compensation Fund.

The Chairperson noted that there were two views. She asked the legal advisors if two views would be allowed in the A-List.

Adv Mjenxane said that only one option could be accommodated. Where there was no consensus, the Committee had to vote on the options.

The Chairperson put Option 1 to the Committee:  (4)(a) No third party would be allowed to transact with the c Fund unless they are registered with the Compensation Fund in the manner as prescribed. (b) All third parties that are already transacting with the Compensation Fund must register with the Compensation Fund within six months after the commencement of the Compensation for Occupational Injuries and Diseases Amendment Act, 2021.

The Chairperson asked Members who supported Option 1 to indicate their support:

Members in favour of Option 1:
Mr Nontsele .
Dr N Nkabane (ANC)
Ms Mkhonto
Mr Mdabe
Ms A  Zuma (ANC)
Five votes

The Chairperson put Option 3 to the Members: “(4) Any third party claiming medical costs from the Compensation Fund either on behalf of a medical practitioner or in respect of any rights ceded to it by a medical practitioner, must be registered with the Council for Debt Collectors in accordance with the Debt Collectors Act 1998 (Act No 114 of 1998).”

Members in favour of Option 3:
Ms Denner
Dr Cardo
Mr Bagraim
Three votes

The Chairperson announced that Option 1 would be in the A-List.

Mr Mdabe moved for the adoption of the A-List of the COIDA Bill with the amendments agreed on.

Ms Mkhonto seconded this.

The DA and the FF+ each registered an objection.

Ms Williams asked for clarity if Option 1 was the option as provided in the A-List with no alterations.

The Chairperson agreed that it was without further alterations.

The Chairperson stated that the Committee had come to the end of the A-List process. She was not discussing it further. A Committee Report would be prepared. She thanked Members for being patient and understanding. The Amendment Bill was not an easy process. She thanked DEL for supporting the Committee from the very beginning. She thanked the Parliament legal team and the State Law Advisor. It was really important that the Legal Advisors were in support. The following meeting would table the Committee Report on the Bill and Members would then prepare for the debate in the National Assembly.

ILO Convention on Violence and Harassment in World of Work: briefing
Deputy Minister Boitumelo Moloi said DEL was presenting ILO Convention No 190 to the Committee for its approval. She was not making a speech but stated that the DEL had dealt with the Convention No 190 and it had adopted the Code of Good Practice in handling gender violence and sexual harassment in the workplace in 2005. The DEL had commenced in 2019/20 the process of ensuring that DEL legislation was in line with ILO Convention No 190. A new Code of Conduct against gender-based violence and sexual harassment in the world of work had been developed by DEL. She requested that Mr Mkalipi brief the Committee.

Mr Mkalipi said that he and Ms Akhona Mti would take the Members through the Convention, the legal framework in the country and the draft Code of Conduct.

Mr Mkalipi stated that the ILO Convention on Violence and Harassment in World of Work had been adopted in June 2019 by the ILO. It had yet to be ratified by all countries that were signatory to the ILO. SA had not yet ratified the Convention.

Violence and harassment in the world of work referred to a range of unacceptable behaviours and practices, or threats, whether a single occurrence or repeated, that aimed at, resulted in, or was likely to result in physical, psychological, sexual or economic harm, and included gender-based violence and harassment.

The ILO Convention prescribed that national laws and regulations might provide for a single concept or separate concepts, taking into consideration  national circumstances. The Convention was implemented in terms of the laws of the country and applied to the broader world of work in all sectors, whether private or public, both in the formal and informal economy, and whether in urban or rural areas.

South Africa had several pieces of legislation addressing violence and harassment in the workplace, or the world of work, starting with the Constitution and including the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), the Protected Disclosures Act, 2000, the Protection from Harassment Act and the Domestic Violence Act.

Draft Code Of Good Practice on the Prevention and Elimination of Harassment in the Workplace
Ms Akhona Mti discussed the Employment Equity Act's Draft Code Of Good Practice on the Prevention and Elimination of Harassment in the Workplace, published by the Department of Employment and Labour for public comments on 20 August 2020 and tabled in NEDLAC on 30 March 2021. The Code applied to all employers and employees, as provided for in the Employment Equity Act, including applicants for employment.

Protection of employees against harassment applied in any situation in which the employee was working or was related to their work. Employers were under obligation in terms of Section 60 of the Act to take proactive and remedial steps to prevent all forms of harassment in the workplace. Policies and procedures adopted by an employer should provide a clear statement of the employer’s position on the prevention and elimination of the various forms of harassment in the workplace. It was noted that online harassment was also prohibited. That particularly took into account verbal or visual harassment.

NEDLAC has yet to finalise its deliberations on the Draft Code but it was envisaged that the Final Code would be published for implementation by the end of March 2022.

Advocacy campaigns were being conducted to raise awareness of the Code and 2 022 Employment Equity workshops had been conducted in nine provinces. The target audience was employers, employees, employers ’organisations, trade unions, HR practitioners, academics and civil society.

Discussion
The Chairperson thanked the presenters for an empowering briefing.

Mr Bagraim believed that most of what had been said was covered in other codes and pieces of legislation, as outlined by the presentation, but the Draft Code did coalesce the information into a single document. Did the Chairperson not suspect that there would have to be amendments to the Basic Conditions of Employment Act? For example, additional sick leave pay because of sexual harassment came to mind. He added that it was a good Code and coalesced a lot of what was covered in legislation. He appreciated it.

Ms Mkhonto welcomed the presentation. She noted that there was an alleged new trend of employers deliberately exposing employees to Covid-19. Was that covered in the Draft Code? Did the advocacy campaign target employees? When it was finalised, could pamphlets be printed in all official languages for the benefit of employees? It was no use having such a good document if the majority of employees did not understand the legislation. The Constitution prohibited the discrimination of people in terms of language and birth. What was meant by “birth” in that instance?

Mr N Hinana (DA) welcomed the presentation but asked about women who were being sexually abused outside the place of work by managers from the workplace. He was of the opinion that there needed to be legislation that would ensure equal drastic measures could be taken against the managers, supervisors and others who violated women. Legislation should force management to take action against those perpetrating the acts of violence.

The Chairperson welcomed the profound, powerful and empowering legislation. DEL said that it had campaigned but a number of workers were perishing in silence from bullying, sexual harassment and violence. How did one encourage people to speak out as the country was experiencing gender-based violence and femicide? The paternal hierarchy found its way into the workplace. Men were not prepared to be led by women and harassed them or psychologically undermined the women. Shop stewards also contributed to how men saw women. Women also perpetrated sexual harassment, so how did one speak out so that the entire citizenry understood the impact of that in the workplace?

She had listened to a phone-in programme where males spoke of how they were being harassed by females at work. Should communities not have a similar campaign to the campaign in the workplace? Government had programmes at work and schools, but should DEL not address gender-based violence and harassment by training managers, politicians, and so on.  Money could be a constraint but workers had to be encouraged to talk about it. The training of judges in the Labour Court was good but managers and politicians also needed training. Political party offices had employers and employees and they also had to understand that  gender violence and harassment was not acceptable. People would die in silence if they did not speak up.

The Chairperson said there was a difference between disciplining someone for not doing one’s work and for undermining people on the basis of gender or appearance.  Many people were undermined on the basis of physical appearance or lack of money. Ageism seemed to be another form of harassment. Young people, particularly in political parties and workplace, and especially young well-educated people, harassed the old. Did DEL not think that should be attended to?

DEL response
Mr Mkalipi responded to Mr Bagraim that the Code did not say employees were entitled to more sick leave. Parliament could choose to increase sick leave but the Code was saying that where a person had gone for psychological treatment, the employer could consider giving extra sick leave out of the goodness of one’s heart because that person had suffered harassment.

He pointed out that the Code talked to responsibility of the employer. If an employer/ee harassed a colleague, the employer had to take action. A company had to have a policy which, if the person were found guilty, might lead to dismissal. However, nothing prevented a person who was harassed from raising a criminal case in addition to the workplace disciplinary action. If the company policy was inadequate, an employee could approach the Commission for Conciliation, Mediation and Arbitration (CCMA).

Mr Mkalipi replied that advocacy was important. People who had experienced this had to talk about it but one had to remember that it was about power. Some people thought that coming forward would make the situation worse. For someone where a person in power was doing the harassment, there were risks. There was not going to be a single solution. This happened at work and at home. It was easier at work, as the employer had to take responsibility, but it was more difficult on the home front. It was important to protect people after they had come forward.

Ms Mti assured Ms Mkhonto that the DEL would develop pamphlets containing the key concepts and translate it into other languages and distribute the pamphlets through trade unions and employers. It was a good suggestion.

She provided clarity on the concept of “birth”. In the Constitution, birth referred to the place of birth and people should not be unfairly treated or harassed based on their place of birth, for example, unfairly discriminated against because they were born in the rural areas and not the sophisticated urban areas. Ageism was a prohibited ground in section 93 of the Constitution and in the Basic Conditions of Employment Act. People could not be unfairly treated on the basis of age, whether young or old.

DEL Acting Director General Aggy Moiloa said that codes of good practice were intended to empower and did not replace HR policies that should deal with harassment. It was meant to empower people. Ms Mkhonto had asked about the trend of exposing employees to Covid-19. DEL had received a few such cases and those cases were covered under health and safety. Covid-19 was a biological agent and was covered as such. DEL did hear complaints from people who said that they were forced to go to work, even when they had Covid-19.

Ms Moiloa did not see a need for amending the Basic Conditions of Employment Act. Already, there was a wide range of sick leave available, including for mental or psychological issues.

Deputy Minister Moloi wanted the Members to go through the ILO Convention No 19 and satisfy themselves as to what needed to be done. The onus was now on the Committee to take the Convention to the National Assembly and the National Council of Provinces and to engage in the necessary processes.

The Deputy Minister stated that bullying was so bad that the previous day a woman had died in the workplace after being forced to go to work while ill. It was necessary for the Portfolio Committee and the DEL to engage with labour organisations on the matter. What had the shop stewards done at the factory in Hartebeesfontein? How had they allowed that to happen and they had not even called the Department? Were there any health and safety officers in that workplace? One had to remember that DEL inspectors could not be at in places and a lot was happening that the inspectors could not get around to inspect. She thanked the presenters for presenting so eloquently. She asked that the Committee take up the issue as a matter of urgency.

The Chairperson said that the Committee had to continually talk about the issue so that the citizenry saw the importance of addressing gender-based violence, femicide and harassment in the workplace.

Unfortunately some of the trade unions were weak but also the level of poverty and unemployment was so high that people remained silent so there was no possibility of losing their job. It was sad and it was something that had to be talked about. Patriarchy had to be dealt with in all institutions. How one was brought up at home, one would also behave in that way regardless of what profession one followed. The powers that be in Parliament had instructed Committees to talk about gender-based violence.

The Chairperson noted that Ms Mkhonto had raised a profound issue of language so that people understood their role and responsibility. She appealed to Members not to remain silent when someone reported such incidents to them as often the one to whom the victim reported downplayed the situation.

Closing remarks
She suggested that Members digest the information and then return to adopt the ILO Convention.

She thanked Members and suggested they do their constituency work. Those who could get vaccinated should do so and demystify the theory that vaccination was not good.

Mr Bagraim thanked the Chairperson for a delightful meeting.

The meeting was adjourned

Download as PDF

You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.

See detailed instructions for your browser here.

Share this page: