Hon Speaker, hon Deputy President, hon members, colleagues, comrades and friends, I am honoured to introduce a number of important amendments ... [Interjections.]
Hon members on my right, please take your seats.
... to the Employment Equity Act 55 of 1998. These amendments are contained in the Employment Equity Amendment Bill of August 2013. The House should note that these are the first amendments to the Employment Equity Act 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 to change the lives of ordinary South Africans for the better, and for whom we can proudly say that life is much better than it was before 1994.
Unfortunately, employers have refused or are unwilling to make a leap of faith with regard to transformation. Reports received from employers over the past 15 years clearly show that not much progress has been made. [Interjections.]
Order! Hon members on my right, take your seats! I have ordered you many times to take your seats. Stop moving around.
According to the report by the Commission for Employment Equity for the 2012 reporting period, whites and males, particularly white males, continue to dominate in the middle to upper echelons of organisations. The Freedom Charter says: "South Africa belongs to all who live in it, black and white." 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 mechanism of the Act; and to ensure that South Africa complies and meets its obligations in terms of the standards of the International Labour Organisation.
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 stakeholders through public hearings.
With regard to the amendments of the definition of designated groups, beneficiaries of affirmative action have now been clarified. Affirmative action will be limited to persons who were citizens of South Africa before the democratic era and their descendants, or those who would have been entitled to citizenship but due to apartheid policies were not afforded such citizenship. Foreign nationals and those who became citizens after 1994 do not assist employers to achieve their affirmative action targets and goals at the expense of designated South Africans.
The Freedom Charter further says: "There shall be work and security." This clause continues to emphasise that men and women of all races shall receive equal pay for equal work. We have inserted a new clause on the issue of equal pay for work of equal value. This deals explicitly with unfair discrimination by employers in respect of the terms and conditions of the employment of employees who are doing the same work, similar work or work of equal value. This includes contract workers vis--vis permanent workers, whether employed by a temporary employment agency or directly by the company.
Strengthening compliance and enforcement mechanisms, securing written undertakings and the 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 noncomplying employers being referred directly to the Labour Court for a fine.
The introduction of arbitration at the Commission for Conciliation, Mediation and Arbitration, CCMA, and not just conciliation in terms of current provisions for certain unfair discrimination disputes, will give employees the option of referring cases of unfair discrimination for arbitration at the CCMA in certain circumstances.
With regard to the amendment of schedule 1, which deals with fines and penalties, fines in schedule 1 have not increased since the inception of the Act. They have now been increased and linked to turnover in order to avoid any circumvention of the Act for noncompliance.
When this Bill is enacted, the department, together with the Commission for Employment Equity, will prioritise the finalisation of the regulations to bring them in line with the new amendments and it will ensure the necessary system changes to implement them. Thereafter, the department will embark on presenting public information sessions on the changes to stakeholders, explaining how the changes may affect them and what should be done to implement them properly. I would also like to call on our social partners to pool their efforts to ensure that these amendments are implemented. Let me thank all those who participated and contributed to these amendments, including the Commission for Employment Equity, our social partners, Nedlac and the Portfolio Committee on Labour for their commitment.
Let us work together to make sure that the dreams of our forebears are fulfilled. This Bill introduces measures that will contribute to making South Africa a better place for all to live in. With the above in mind, I hereby table and recommend the adoption of the Employment Equity Amendment Bill by this House. [Applause.]
Mr Speaker, hon Deputy President, Ministers, Deputy Ministers, hon members, distinguished guests, ladies and gentlemen, there are not many things in life that are predictable -except that the ANC will win the elections next year. [Applause.] The ANC will win not because of its beautiful colours, but because of its track record as a champion of progress. The other predictable matter is the poor transformation track record of this country. It is so predictable that you can almost write an accurate introduction to the 2014 Employment Equity report today.
Achieving the real transformation of South African society has proven to be so tough that it seems as if it will take us 48 years, just as long as it took the ANC with all its organs to smash apartheid. While the fight for affirmative action makes sense when it is the minority seeking the levelling of the playing field, it is absurd when it is the majority that is begging for redress. It is somewhat preposterous that the majority is struggling to be affirmed in a country where they are in power.
How can a fraction of the population continue to hold the affirmation of the large majority of the society to ransom? It is even worse that this is happening when the majority is in power. I have come to accept that black people are generally a very kind, patient and forgiving lot. Please do not get me wrong: I am not for one moment suggesting that this is a bad attribute - far from it. However, what worries me and many others is the propensity to rubbish the country's transformation efforts and, at worst, to place political roadblocks in the path to a transformed society.
Someone once remarked that one of the reasons that the South African industrial relations environment has become so adversarial is the unacceptable and almost annoying levels of inequality. He pointed out that the levels of inequality in our country remain a recipe for instability. The gap between the rich and the poor is so frighteningly large in this country that it finds expression in many facets of our lives.
The trouble with this sorry state of affairs is that one day people are going to run out of patience and demand redress now and not tomorrow. One day it will become so difficult for the ANC to introduce legislation that is enabling and nudging that it will be forced to start introducing legislative instruments that push a bit harder. If the carrot does not yield the expected results, then you may be left with little choice but to start introducing the stick - a very big one, for that matter.
I don't understand why, in general, businesses do not take full advantage of the opportunities for self-regulation but play hide and seek until punitive measures are introduced. The employment equity legislation is a case in point. For many years, the Employment Equity Act remained merely enabling legislation, with designated employers enjoying full latitude to set their own plans, with no interference from government.
What we have gleaned from the reports of the designated employers is that they are not meeting the very targets that they themselves have set. This is tantamount to a joke - a very sick one, for that matter. The poor performance of the designated employers to meet their own targets is but an invitation for government to intervene. What has happened to the famous call of the employers for self-regulation? Just by way of illustration, after many years since the advent of Employment Equity Act, Africans occupied a mere 12,3%, Whites occupied 72,6%, coloureds occupied 4,6% and Indians occupied 7,3% of top management positions in 2012.
A new and unusual phenomenon is the number of non-South Africans in top management positions in 2012, which stands at 3,1% compared to 0% in 2002. It seems to me that you need to be a non-South African in this country if you want the Employment Equity Act to work for you. This picture is a source of sadness, and it is not a true reflection of what many people fought for in this country. Yet there are still those who are calling for a sunset clause on employment equity. On what basis, if I may ask, when the sun has not even risen? Those who are making this call are mischievous and disingenuous at best or, at worst, contemptuous of our history.
This democracy has worked very hard for business and it continues to do so. The key, though, is whether or not business has reciprocated by investing in the transformation agenda. I am afraid the answer is a big no, they haven't. Generally, there is sufficient consensus that the Employment Equity Amendment Bill tackles the correct issues and it is spot on regarding what needs to be done.
What has happed to the progressive business leaders of the past? You will recall that in the mid-1980s, progressive business formations such as the SA Consultative Committee on Labour Affairs, Saccola, argued that business in South Africa had to start doing things differently if they had any hope of influencing and shaping the inevitable new order. The top employer industrialists in this country also understood the role industrial relations would play as the workplace became the terrain of conflict. To pursue this new thinking, business created a consultative forum as a platform through which they could engage the Mass Democratic Movement and the ANC in exile.
In 1988, the old government proposed new amendments to the Labour Relations Act, which included things that were aimed at reversing the gains of workers achieved over many years of struggle. The proposed amendments triggered mass action and strikes of the same, if not greater, proportions than those last seen in the period of 1973. This was the first trigger and a real test to determine if business, under the umbrella of Saccola, was genuine about their resolve to find a new way of doing things in South Africa.
The Bill before us is very mild; those who are complaining either have no appreciation of the challenge at hand or they just don't care. The proposed stick in the Bill, proverbially speaking, is a mere smack on the palm and nothing to rave about. If we really cared about the vulnerable workers and the victims of our ugly past, the Bill should go through without too much farce.
If we truly loved our country and our Constitution and what it stands for, then this Bill should be welcomed with open arms. The ANC cares - and this is not just a slogan. This Bill and what it proposes bear true testimony to how much we care. The Bill takes into account all the issues raised in the Regulatory Impact Assessment exercise and we are convinced that the socioeconomic benefits far outweigh the negatives.
We are also pleased that the Bill is, by and large, the product of robust engagement by the social partners at Nedlac. [Interjections.] Which side are you on - the poor or the rich and well-off? The ANC is for the wellbeing of all, with a bias towards the poor. If things continue like this, we may have to consider making compliance with the Employment Equity Act a precondition to doing business with the state. The ANC supports this Bill. [Applause.]
Adjunkspeaker en agb lede, ek wil graag aan die voorsitter van die komitee s ook die DA gee om. Daarom steun ons die wysiging van die wet op gelyke indiensneming. Hierdie wet het reeds 'n groot invloed op die Suid-Afrikaanse arbeidsmark gehad en is heeltemal versoenbaar met die DA se beleid van 'n oopgeleentheidsamelewing.
Suid-Afrikaners se geleenthede in die arbeidsmark is ongelukkig vir te lank benvloed deur herkoms en velkleur wat bepaal het waar jy woon en werk en watter poste ni vir jou beskore was nie. Ek glo daarom dat almal in hierdie Huis aksies steun wat die onregte van die apartheidsverlede probeer regstel. Natuurlik sou ons wil sien dat daar meer gesofistikeerde kriteria as ras moet wees om te bepaal wie hulp benodig om die onregte van die verlede te bowe te kom. Tans blyk dit dat ras, hoe kru ookal, nog steeds die beste klassifikasiemetode is. Dit is egter ons hoop dat die regering homself in die toekoms toenemend daarvoor sal beywer om 'n beter maatstaf as net ras te vind.
Dit is duidelik dat die opstellers van hierdie wetsontwerp daarvan oortuig is dat daar steeds ten opsigte van vergoeding en byvoordele tussen mense van verskillende rasse gediskrimineer word. Hierdie wetsontwerp maak dit dan ook makliker vir mense wat glo dat daar teen hulle gediskrimineer word om hul regte uit te oefen. Die wet op gelyke indiensneming het die potensiaal om op die lang termyn enorme voordele vir die Suid-Afrikaanse ekonomie te bring, maar indien hierdie wet nie met die nodige oorleg toegepas word nie, kan dit ook tot 'n baie groot verlies aan kundige arbeid in Suid-Afrika bydra.
Ek wil dus pleit dat gelyke indiensneming toenemend die onderwerp van formele studies sal wees. Die DA is dankbaar vir elke hofuitspraak wat groter helderheid oor die korrekte toepassing van di wet bring. Enigeen wat op 'n hartelose manier eis dat bruinmense die Wes-Kaap moet verlaat ten einde hul regmatige plek in die Suid-Afrikaanse ekonomie en Staatsdiens op te eis, is in stryd met die gees van gelyke indiensnemingswetgewing. (Translation of Afrikaans paragraphs follows.)
[Mr A P VAN DER WESTHUIZEN: Deputy Speaker and hon members, I would like to say to the chairperson of the committee that the DA also cares. Therefore we support the amendments to the Employment Equity Act. This Act has already made a huge impact on the South African labour market and is completely compatible with the DA's policy of an open opportunity society.
Unfortunately, South Africans' opportunities in the labour market have been influenced by descent and skin colour for too long, which determined where you lived, worked, and for which vacancies you were allowed to apply. I therefore believe that everyone in this House supports actions that are aimed at rectifying the injustices of the apartheid past. Obviously we would have liked to see more sophisticated criteria than race being used to determine who needs help in order to overcome the injustices of the past. At present, it seems that race, however crude this may be, is still the best classification method. However, we hope that the government will increasingly strive towards finding a better measure than race in the future.
It is clear that those who have drafted this Bill are convinced that people from different races are still being discriminated against with regard to remuneration and fringe benefits. This Bill also makes it easier for people who believe they are being discriminated against to exercise their rights. The Employment Equity Act has the potential to reap enormous benefits for the South African economy in the long term, but if this Act is not implemented with due diligence, it could also contribute to a very big loss of skilled labour in South Africa. I therefore want to make an appeal that employment equity should increasingly become the topic of formal studies. The DA is thankful for every court judgment that brings more clarity regarding the correct implementation of this Act. Anyone who is making heartless claims about coloured people having to leave the Western Cape in order for them to claim their rightful place in the South African economy and Public Service is contradicting the spirit of employment equity legislation.]
The statistics of the Commission for Employment Equity show that we still have a long way to go in order for all race groups to share in an equitable way in the benefits of this country. The statistics also show that the goal of employment equity is so much easier to reach in times of economic growth and under an effective education system. The National Development Plan summarises its approach as follows:
Career mobility and rising incomes are more likely in an economy that is growing rapidly. Selecting good quality black and female candidates will be easier if the education system is producing ever greater numbers of skilled black and female work entrants.
The poor performance of the economy over the last few years has resulted in a weakening of the figures indicating the measure of employment equity reached in South Africa.
Dit kan nie ontken word dat Suid-Afrika 'n groot tekort aan kundige arbeid het nie. Oor baie jare is hierdie tekort met buitelanders met die nodige kennis en kwalifikasies aangevul. Die wetsontwerp vandag voor hierdie Huis het onder meer ten doel om buitelanders van die aangewese groepe uit te sluit. Die skerp toename in plaaslike indiensneming van hoogs gekwalifiseerde en professionele persone, veral vanuit Afrika, is 'n duidelike aanduiding dat die grootste faktor wat regstellende aksie strem die tekort aan Suid-Afrikaners met die nodige kennis en vaardighede is.
Die gevaar met die wet op gelyke indiensneming is juis dat die probleme aan die insetkant van die arbeidsmark verdoesel kan word. In die proses kan dit maklik gebeur dat die regering nie hard genoeg werk om te verseker dat almal wat die skool, kollege of universiteit verlaat met dieselfde standaard van kennis en vaardighede toegerus is nie. Dit is waarom die DA glo dat die regering 'n oopgeleentheidsamelewing moet skep om so die grondslag vir ware regstellende aksie te l. Ek dank u. [Applous.] (Translation of Afrikaans paragraphs follows.)
[The fact that South Africa has a large shortage of skilled labour cannot be denied. This shortage has been dealt with over the years by employing foreigners with the necessary knowledge and qualifications. The Bill tabled before the House today seeks to exclude foreigners from the designated groups among other things. The sharp increase in local employment of highly qualified and professional people, especially from Africa, is a clear indication that the biggest factor that limits affirmative action is the shortage of South Africans with the necessary knowledge and skills.
The danger with the Employment Equity Act is precisely that problems relating to input into the labour market could be obscured. In the process it could easily be the case that the government is not working hard enough to ensure that everyone who leaves school, college or university is equipped with the same standards of knowledge and skills. That is why the DA believes that the government should create an open opportunity society in order to lay the foundation for true affirmative action. I thank you. [Applause.]]
Deputy Speaker, hon Deputy President, hon Ministers present and hon members, I stand here on behalf of Cope to support the Bill. The simple reason for our support is that we believe the normalisation of society after several decades of apartheid should be enforced.
It is really unfortunate that this Bill has to come to Parliament because there are certain employers who believe that white male domination should still reign supreme in the workplace. This Bill is necessary because there are employers who decided that the spirit of the principal Act should be undermined. Instead of embarking on nonracialising the workplace, they resolved that they would give preference to white women and import blacks to meet the requirements of the Act. This undermines the objective of the Act. After almost 20 years of democracy, we annually get reports on how bad we are faring in implementing equity in the workplace.
The excuse of a lack of skilled labour does not really hold water anymore. With a myriad of legislation to finance skills development, we cannot continue to plead a lack of skills stemming from the reluctance of those involved to utilise the funds put aside to develop these skills. Skills development cannot be left to the Departments of Basic Education and of Higher Education and Training alone. Our tripartite partners at Nedlac should take skills development seriously and develop a sustainable programme of action to develop skills in different areas, which would contribute to economic development. It is important to note that the amendment abolishes discrimination in the treatment of workers within a particular workplace. It also allows the Minister, after consultation with the commission, to prescribe the criteria and methodology for assessing work of equal value, as contemplated in subsection 4 of the principal Act.
The Bill allows employees to refer disputes alleging unfair discrimination on the grounds of sexual harassment to the Commission for Conciliation, Mediation and Arbitration, CCMA. The volume of work for the CCMA might increase as a consequence, for this will make it easier and cheaper for cases involving workers alleging unfair discrimination on the grounds of sexual harassment to be resolved speedily. The issue of equitable representation at all levels of the employers' workplace categories has been brought for this reason. The intention is to simplify the determination of employment equity in the workplace. Our experience over 20 years of attempts to address the employment equity at different workplaces has been met with a lot of resistance, hence this Bill. It is clear that there are employers who are determined to maintain the status quo, despite the existence of the principal Act and its intentions. As a result, a director-general is being empowered to apply to the Labour Court to impose a fine against those employers who refuse to abide by the law. The increase in these fines cannot be viewed as unfair, because those who will be taken to court will be those who refuse to comply with the Act.
This Bill also gives teeth to the labour inspectors to enforce the undertaking from a designated employer within a specific period. If an employer refuses to give a written undertaking, that labour inspector is empowered to issue a compliance order. This increase in the responsibilities of labour inspectors can only be carried out effectively if they were given enough resources and training. Training will create abilities and skills to enforce this Bill once it becomes an Act. The procedure to enforce this Bill should be fair and objective.
Cope believes that the proposed insertion of section 64(a), which empowers the Minister to amend the total annual turnover threshold in order to counter the effect of, is a very progressive move. I believe that the earlier we, as society, deal with the negative effects of apartheid, the better for our future. I hope that this legislation will help our country to move forward in progressively creating a nonracial, nonsexist society in the workplace, where workers spend the majority of their time. The problem we have in this country is that we used to have oppressors and the oppressed, and now we only have the previously disadvantaged. [Applause.]
Adjunkspeaker, die VF Plus verskil met die ANC en die DA oor hierdie wetsontwerp. Hulle ondersteun dit. Die VF Plus verwerp hierdie wetsontwerp. Ons is daarteen. [Deputy Speaker, the FF Plus disagrees with the ANC and the DA on this Bill. They support it. The FF Plus rejects this Bill. We oppose it.]
I want to say that this Bill is bad news for the National Development Plan. I see the hon Minister sitting here. This Bill is bad news for the fiscus, because it will not encourage any investor to invest in South Africa.
Die VF Plus glo daar moet 'n balans wees tussen die belange van die werkgewer en die werknemer. Hierdie wysigingswetsontwerp hel oor na die belange van die werknemer. Waar kan dit regverdig en billik wees dat as 'n beskuldiging van diskriminasie teen die werkgewer gemaak word, die bewyslas op die werkgewer moet wees om die teendeel te bewys? Dit is totaal onaanvaarbaar. Ek wil vandag vir u s dat die vakverbondwese in Suid-Afrika se belange so hoog geag word dat dit die ekonomie van Suid-Afrika geweldig skaad. Dit is nie in belang van Suid-Afrika dat daardie wanbalans plaasvind nie. Die ANC en die DA - kan 'n mens hoor en sien - is besig met verkiesingspraatjies. Hulle wil die massas probeer bereik. (Translation of Afrikaans paragraphs follows.)
[The FF Plus believes that a balance should exist between the interests of the employer and the employee. This amending Bill favours the interest of the employee. How can it be just and fair that when an accusation of discrimination is brought against an employer, the onus of proof lies with the employer in order to prove the opposite? It is totally unacceptable. I would like to say to you today that the interest of the congress of trade unions in South Africa is regarded as so important that it seriously harms the economy of South Africa. It is not in the interest of South Africa that this imbalance should happen. The ANC and the DA - one can hear and see - is busy with electioneering. They are trying to reach the masses.]
I want to say to these hon members: You cannot make the poor rich by making the rich poor.
Ons moet die balans kry. As ons die balans het, dan sal ons die ekonomie in Suid-Afrika kan bou. [We need to strike a balance. If we find the balance, then we will be able to build the economy of South Africa.]
The hon member said that some people asked for a sunset clause on affirmative action. The FF Plus asks for that sunset clause. Now the hon member says that the sun has not risen yet. I want to say to this hon member that it is 2013. It has been almost 20 years since 1994. The sun is not only setting on affirmative action; it is setting for the economy of South Africa if we continue with Bills like these. We can never support it. If you really wanted to build the economy of South Africa, then you should not even have Bills like these. What we need in South Africa is the best person for the best job. Let merit be the criteria, not the colour of your skin, or else the sun will set on South Africa. [Interjections.]
Hon Deputy Speaker, hon Deputy President, Ministers and Deputy Ministers, hon members, South Africa is one of the 185 member states in the International Labour Organisation, and this has been the case for many years. The country proudly carries the flag as one of the few member states where core labour standards are enshrined in the Constitution and it has remained a source of inspiration for many countries, both in developing and developed economies.
Human rights activists continue to hail the South African labour laws as among the best in the world. South Africa, besides being a member in good standing, has been one of the leading countries that has made visible contributions to the shape and content of the international labour agenda and in some cases even sponsored taxes on some of the International Labour Organisation's recent conventions and recommendations.
At its 34th session the International Labour Conference adopted the International Labour Organisation Convention 100 on equal remuneration and, in 1958, the International Labour Organisation Convention 111 on discrimination in employment and occupation - these two being among the eight fundamental International Labour Organisation conventions. Every International Labour Organisation member state is obliged to follow the principles expressed in the conventions on equal remuneration and discrimination in employment and occupation.
Our country comes from a very divided and a severely unequal past. It cannot be acceptable, or be business as usual, for the country to have levels of inequality that rate as among the worst in the world. It is even more disturbing that the instrument agreed to by all social partners to address this legacy is being treated with contempt by those who are meant to implement it. Wage and income disparities are chronically severe in the South African society. The hard truth is that these things cannot resolve themselves without some interventions.
The South African business community is not synonymous with doing things without being pushed. The spectacular failure of a number of enabling pieces of legislation is a case in point and employment equity is no exception. The irony is that all social partners agreed that the endgame of employment equity was the right thing to do. If that were the case, why are we not seeing progress on this front? That on its own is overwhelming.
The ambitions expressed in the International Labour Organisation Conventions 100 and 111 are issues that we could certainly have relied on our Constitution to address without having to lay down the law. But because of the attitude of the average employer and some parties - I don't want to mention their names - in South Africa, we had to go through the pain of drafting legislation to facilitate and regulate this national imperative.
The performance of employment equity is not cause for celebration but a source of disappointment and a betrayal by some of our social partners. The Constitution of the Republic of South Africa provides for the right to fair labour practice in terms of section 23 and 9 of the Constitution, where provisions for equality are made; provisions that an employee may raise in the event of an "equal pay" dispute. In terms of section 9(1) of the Constitution, "everyone is equal before the law and has the right to equal protection and benefit of the law". The ANC argued that the principle of equal pay for work of equal volume, besides being part of our international obligations, resonates firmly with our constitutional ideals. Therefore, the adoption of this Bill is an excellent attempt to promote the Constitution of the Republic.
In a country with high levels of unemployment and where the employers behave in a certain way in the dismissal of workers, a comprehensive social security protection net becomes key. The empirical evidence points to the fact that it takes no less than six months to secure an employment opportunity in South Africa. For this reason, social protection becomes a matter of must and not an option for South Africa.
In addition to many reported complaints of noncompliance, 269 designated employers were placed under the director-general's review process for noncompliance with certain aspects of the Employment Equity Act. They were all issued with recommendations to correct the offending aspects of their equity plans. It is reported that the reasons for such high levels of noncompliance can be placed squarely on the fact that the current law lacks teeth. Even the fines are set so low that some employers go to the extent of budgeting for them in case they are caught.
Labour brokers flout the employment equity provisions with impunity. The noise against fines for offending designated employers and their friends sends the wrong message - that breaking the law should go unpunished. Why is noncompliance with labour laws not treated as having the same level of importance as those guilty of breaking the competition and tax laws of this country? Does this mean that the labour laws in general, and employment equity in particular, are not equal to other laws of the land? It sounds like some laws are more equal than others. This is absurd!
Passing the Employment Equity Amendment Bill is long overdue and the time to act is now. The ANC cares and, as such, supports the Bill. [Applause.]
Deputy Speaker, the ACDP supports the broad intention of employment equity legislation, which is to address the inequalities of the past. But what is particularly problematic with this amendment Bill is that the democratic process, from Parliament's side, has left business stakeholders feeling that their views have been totally ignored.
Business Unity SA's executive director, Vanessa Phala, says the trend of the labour committee passing Bills without considering the views of business is very, very worrying. Labour expert Andrew Levy called the processes of consultation "a charade". Ms Phala says the Bill's removal of the right of companies to appeal against the compliance orders is a violation of the principle of administrative justice and is probably unconstitutional.
Busa also argued that the too rapid recourse to the Labour Court to deal with cases of noncompliance would be costly and time consuming, and that there should be scope for conciliation in line with the convention of the International Labour Organisation.
What the poor need most are jobs, and joblessness among black South Africans has almost tripled in 19 years. At present, only 3% of black South Africans have completed the necessary tertiary studies for management positions and many of them have only recently qualified and are too young to have gained the experience needed.
The SA Institute of Race Relations says it is not a racist refusal on the part of business to employ black people; it is the skills deficit that is the key issue that needs to be addressed. The skills deficit is so acute that many firms are paying premiums of between 10% and 30% for skilled black professionals.
Now, instead of recognising or addressing these problems, important provisions addressing these practical issues have been removed from the current Act. Under this Bill, maximum fines will start at R1,5 million or 2% of annual turnover, whichever amount is greater. For a fifth similar offence within three years, a maximum fine would be R2,7 million. These proposed fines, coupled with the absorption of skills by a better paying public service, make it virtually impossible for firms to stay in business while working towards increasing black representation at senior levels.
The ACDP will, however, be supporting this Bill, despite our reservations because we recognise that we are facing significant inequality in South Africa. We must make strides in this direction.
Hon Deputy Speaker, hon Deputy President, hon members, the Employment Equity Act came into effect in 1998. The purpose of the Act was to address the imbalances of the past and to assist people who were put at a disadvantage by laws and past practices: black people and women.
Analysts and statisticians tell us that very little has changed in the workplace. Top positions in the corporate world are still dominated by white males, with a few black males being sought by companies in order to reach their equity targets.
The main reason for this state of affairs is that the Act is generally difficult to enforce. It is generally vague and lends itself to many possible interpretations. The Bill simplifies provisions of the Act by eliminating unnecessary mandatory steps and mandatory criteria that must be taken into account when assessing compliance.
Azapo welcomes the revision of the definition of designated groups to ensure that beneficiaries of affirmative action are limited to persons who were citizens of South Africa before 1994. This will make it impossible for employers to employ foreign nationals who became citizens after 1994 to reach their equity targets.
Azapo also supports the removal of provisions that made it impossible for parties to refer unfair discrimination disputes to the CCMA. It is good that lower-paid employees will be entitled to refer any discrimination claim to the CCMA for arbitration. The provision that such disputes could only be referred to the Labour Court was prohibitive because many workers could not afford the fees that were charged by the attorneys who represented them.
Apartheid in the workplace was based on skin colour. People were not oppressed on the basis of religion, level of education or some sophisticated criterion but were segregated because they were black. There is therefore no way of reversing that legacy except by using race as the criterion. Or are we expected to use shoe size or some such obscure criterion? [Laughter.]
Minister, as before, we are asking again: When is affirmative action going to start? I ask this because it has not started yet. Azapo supports the Employment Equity Amendment Bill.
Deputy Speaker and hon Deputy President, the DA fully supports the constitutional provisions for affirmative action and the objectives of the Employment Equity Act to promote redress and diversity in the South African labour market. The DA believes that it is desirable that individuals from diverse backgrounds should lead, participate in and form part of businesses and other organisations in South Africa and that corrective action should be taken to achieve such diversity.
However, while we support the general thrust of the Employment Equity Amendment Bill before this House today, we remain concerned about some provisions in the Bill. We believe some of these amendments could have far- reaching negative impacts on the labour market and consequently the economy of the country because of unintended consequences.
We always need to remind ourselves that employment equity and affirmative action have very strong inherent weaknesses because they are concerned only with those people who are in employment. These are people who are already "affirmed" in that they have a job, and they are being developed and assisted to move up the ladders of authority and salary in the economy. These necessary interventions say absolutely nothing and do absolutely nothing for the more than 7 million South Africans who cannot be affirmed because they are unemployed and remain outside the labour relations framework.
Herein lies the country's greatest challenge and potential threat to our economy and political stability. For instance, complaints of unfair discrimination on the basis of equal pay for work of equal value could prove to be complex. This could put even greater stress on the already stretched resources of the Commission for Conciliation, Mediation and Arbitration and therefore regulations in this regard need to be crafted very carefully.
We also believe that linking certain penalties for noncompliance to a company's annual turnover could be very risky because some vulnerable designated employers, particularly small and medium enterprises, may not be able to survive such fines and could be forced to shut down, at the cost of much-needed jobs.
In a perfect world all designated employers would comply with the law, but we are not there yet. Laws such as the Employment Equity Amendment Bill should therefore not be made for punitive reasons, driven by frustration and impatience. Such an approach merely increases the degree of inflexibility in our labour legislation regime. This raises the barriers to job creation and that cannot be good for employment and economic growth.
The Commission for Employment Equity was scathing in its latest report about the lack of progress in this area. Government, business and labour therefore need to engender a sense of common purpose and mutual trust with regard to employment equity if this country is to show significant improvement in the next employment equity report.
Employers should be encouraged to understand that employment equity and affirmative action are business and economic imperatives necessary for effective nation-building and to grow the country's tax base. This is necessary to provide the funds needed to service the ever-growing number of newly unemployed workers who survive on finite unemployment insurance benefits and the millions of South Africans who depend on social grants. Here we need to remind ourselves that the fact that millions of South African are on social grants is not to be celebrated. It simply means that millions of our people are poverty-stricken. Heavy penalties for the errant behaviour of those who provide employment and contribute to the growth of the economy could be counterproductive and should be resisted. Sometimes incentives can have a more positive effect than punishment. I thank you. [Applause.]
Hon Deputy Speaker, hon members and hon Ministers, we have gone through the arduous process of clarifying why we need this Bill. We think what is more important is the fact that year after year we have been told by the Commission for Employment Equity that instead of reversing the inequalities of the past, we are actually deepening the inequalities of the past; that part of the major problem that our country and economy are facing is the deepening inequality, deepening poverty and deepening unemployment, which significantly and particularly affects black people; and that the provisions made by the current Employment Equity Act are not sufficient to reverse and to address the economic imbalances of the past.
One of the most significant policy and political decisions that the ANC took in the build-up to the 1994 general elections was not to be involved in reverse racism; not to turn apartheid upside down and have a government, led by Nelson, that would take revenge on those who were at the helm of the apartheid system.
One of the critical decisions that the ANC made in 1994 was to ensure that the transition becomes smoother; that everyone - black, Indian, coloured and white - felt that they were part of this particular country and that they all contributed to the building of this country. The stability that we are enjoying today has been as a result of the compromises that were made at that particular time.
To suggest that today, after 20 years of that democratic dispensation, we need to be talking about a sunset clause is basically to suggest that, 20 years later, we can and should be able to reverse the atrocities that had been committed for 350 years. It is to suggest that racialism and colonialism, which had been imposed on our own people for more than 350 years, can easily be reversed over a period of 20 years. It is basically to suggest that after a period of 20 years we can speak of an equal society and a situation where race is not considered an issue, when for 350 years our people were discriminated against and exploited on the basis of their colour. This is actually unfair and unjust. In many instances ... [Interjections.]
Hon Deputy Speaker, on a point of order: Is the hon member willing to take a question? [Interjections.] It will be an easy question.
Order! Hon member, are you willing to take a question?
Deputy Speaker, I am willing to take an answer from him. [Laughter.]
Hon member, he is not willing to take a question. Please sit down.
If you don't even understand that reference, I can understand that you understand nothing.
Hon member, I did not allow you to speak.
The objective of the ANC has been to build a nonracial, nonsexist and democratic society. The foundation of that nonracial, nonsexist and democratic society is what we refer to as the national democratic revolution.
If we were to build this kind of society, what we essentially need is the realisation that to reverse the atrocities committed for 350 years does not need a miracle of 20 years. In fact, what happened 20 years ago was actually not necessarily a miracle, but the result of the compromises we collectively entered into. We realised they were important for our society to enter into a transition. I think it is unfortunate for some in this House to use the compromises reached 20 years ago and the perks agreed to in the Convention for a Democratic South Africa, Codesa, and in various other negotiations, as political campaigning programmes to suggest that all those compromises were in fact a failure on the part of the ANC when it comes to delivering to our own people.
It is unfortunate to suggest that the compromises that happened at the World Trade Centre and the agreements that were reached at that time were a failure on the part of the ANC. To use that today to get votes when we go to elections next year is actually opportunistic and has to be exposed. This country is where it is today because of the sacrifices and compromises that have been made by the millions of our people, and we must never, ever take that for granted.
Today, as a result of this Bill, trade unions, workers and civil society will be empowered to begin to question why certain people, because of their race, are paid more than other people in the workplace. Today, because of this Bill, trade unions and civil society will begin to question why certain people, because of their race, will be promoted faster than others on the basis of their race. Today, because of this Bill, we will realise the transformation of the workplace. The situation where more than 70% of management in the workplaces were predominantly white and the majority of the population remained on the sidelines of transformation will be history. The majority of the population remain on the sidelines of what this democratic dispensation is supposed to be offering.
Today, because of this Bill, women, black women in particular, will realise the value of our democracy. Today, as a result of this Employment Equity Bill, farm workers, wherever they are, will realise why it was important that in 1994, and even subsequently, they went out to go and vote for an ANC government. It is only because of this Bill that we realise the transformation of our society and direct changes in the lives of our own people. Thank you very much. [Applause.]
Deputy Speaker, I just want to tell the hon Groenewald that it is very surprising that he said what he said here. I don't think your colleague, who is a member of the portfolio committee, can say that, because this Bill emanated from the International Labour Organisation's convention and your colleague participated in the standard commissions during that ILO conference. Now you come here and say that you don't support this, while your member supported what was said at that ILO conference.
Hon Dudley, firstly, on the issue that was raised by Ms Vanessa Phala, I think it is wrong to come here and say that you have concerns based on the comments by Business Unity SA, because Busa participates in all the structures, such as the National Economic Development and Labour Council and the ILO. The very same Vanessa is a member of organised business and always participates in the ILO conference in the African Regional Labour Administration Centre, Arlac, and even at the Southern African Development Community level. She agrees with everything that we discuss before we go to those conferences, and even after we have come back home. Therefore I think you must sit down with her and tell her not to have a double agenda.
Secondly, I want to highlight for the hon members that when you talk about business vis--vis organised labour, I am not sure which business you are representing because organised business and organised labour also serve in the Human Resource Development Council, which deals with skills development issues and is led by the Deputy President. That is where they identify where there is a lack of skills and come up with strategies on how to work together with government, including the issues of the farmers. The farmers have asked us as the Department of Labour to take them through the labour laws so that they would be able to comply with this legislation. I am not sure whom you are representing because we have agreed with organised business and, in particular, with farmers on these matters.
I want to thank all the political parties who supported this Bill. This is confirmation that the ANC leads and the ANC lives. I thank you. [Applause.]
Hon Deputy Speaker, the ANC may lead the DA but they do not lead us. I ask that our objection be noted. Thank you. [Laughter.]
Debate concluded.
Bill read a second time (Freedom Front Plus dissenting).