Employment Equity Bill nears end of process

The Employment Equity Amendment Bill was initially introduced in the National Assembly in July 2020, with the Department of Employment and Labour having as its objective, the introduction of significant amendments to the various provisions of the Employment Equity Act. The preamble to the Bill read:

To amend the Employment Equity Act 1998, so as......’to provide for the Minister to identify sectorial numerical targets in order to ensure the equitable representation of suitably qualified people from (the) designated groups, and to provide for matters connected herewith.’

In my article, ‘Proposed Amendments to the Employment Equity Act’ first published on the 28 July 2020 I wrote, ‘Of singularly significant importance is the fact that, in terms of the proposed amendments, the Minister will be empowered to determine numerical targets for specific sectors. Put differently, the Minister would be empowered to introduce quotas at the workplace in respect of specific sectors’. I went on to write, ‘Employers will therefore no longer be able to set their own targets in terms of their employment equity plans, as they have done for many years’.

The National Assembly’s Employment & Labour Committee is now poised to adopt and table a ‘B’ version of the 2020 Employment Equity Amendment Bill for a second reading in the House. It will reflect changes agreed last week, which will, among other things, ensure that the Bill encompasses the entire agreement on sector-specific targets reached in the National Economic Development & Labour Council (NEDLAC). According to Legalbrief Policy Watch, both the DA and FF Plus representatives in the committee are opposed to the Bill’s adoption. During last week’s deliberations, both objected specifically to clauses 4 and 11 (making the achievement of sectoral targets one of the criteria for assessing compliance with the Act).

On the 26 March 2021 the Department of Justice and Constitutional Development published an invitation for public comment on the Amendment Bill of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). The initial deadline for submissions was the 12 May 2021, however, this has now been extended to the 30 June 2021.

The Bill has been slammed as ‘ridiculous, unattainable, ideologically skewed, and impossible to implement’, in a Business Day article, and ‘excessive, beyond the legislative scope and jurisdiction of the original Act, contradictory to the values enshrined in the Constitution, and serving as mechanisms to unfairly benefit and advance certain groups’ by the National Employers Association of South Africa (NEASA). NEASA says it was ‘vehemently opposed’ to PEPUDA and has called for it to be scrapped.

NEASAs senior policy adviser, Rona Bekker, referred to Government’s ‘equality obsession leading to idealistic and impractical legislation’ adding that the ‘issue of inequality in society could not be addressed by way of the proposed amendments, only through upskilling and proper education’. The Bill proposes to expand the definition of equality in the Act to include the equal right and access to resources, opportunities, benefits and advantages and the requirement to achieve equality in terms of impact and outcome, notes Business Day. The definition of discrimination is expanded significantly to mean any act, omission, practice, or situation that, whether intentional or not, imposes burdens on, withholds benefits from, causes prejudice to, or otherwise undermines the dignity of any person for a reason related to the prohibited grounds of race, sex gender and 15 other grounds.

It is irrelevant whether the reason for the discrimination is the sole or dominant reason for the act or omission in question. An act will be discriminatory even when it was not intended as such. This expanded definition of discrimination will make it easier for complainants to substantiate their claims of unfair discrimination. ‘That would tip the balance against the accused too far, giving the complainant too much power, and depriving the accused person/s of equality before the law’, said NEASA.

We await the outcome of these deliberations with eager anticipation.

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