Issue No. 32
Employment Equity Bill
20 April 1998
Four years after our transition to a democratic state, the economy of our country remains largely in the hands of those privileged by apartheid. The market place has barely begun to be deracialised. Management is, with a few exceptions, largely white dominated, and where companies claim to have made progress in correcting the historic imbalances amongst management, this apparent progress often consists of token appointments, with black managers appointed to symbolic positions, without real decision-making powers. Of top managerial positions 96.4 per cent of jobs in South Africa are still held by whites. In the last three years there has only been a 2.3 per cent increase in the appointments of Blacks to senior management levels, mainly in administrative areas, not in policy making positions. In the almost invisible middle management level the increase has only been 1.6 per cent.
South Africa has the most unequal distribution of income in the world. The bottom 20 per cent of income earners receive 1.5 per cent of national income, while the wealthiest 10 per cent earn 50 per cent. Poverty is overwhelmingly concentrated in the African and Coloured population. 95 per cent of Africans are poor, and 33 per cent of the coloured population live in poverty.
It is in this context that the Employment Equity Bill was drafted, after the Green Paper, “Employment and Occupational Equity: Policy Proposals”, of July 1996, allowing for extensive consultation with all interested parties.
As legislators we need to take some action to ensure that the workplace becomes more representative at all levels of the South African population. The ANC government believes that in every workplace there should be a culture of non-discrimination and diversity. We ant a fair deal for all workers. We cannot wait for this to happen spontaneously, as the economic climate improves.
Key Provisions of the Bill
- The Bill can be divided into two main areas. The first part prohibits discrimination in employment, while the second part introduces affirmative action programmes to deal with apartheid-linked discrimination.
- All employers are required to promote “equal opportunity and …. to eliminate unfair discrimination in any employment policy or practice” [Section 4]
- “No person may discriminate against an employee on…grounds…(of) race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience belief, political opinion, culture, language and birth” [Section 5(1)]
- Racial and sexual harassment also constitute unfair discrimination
- Medical testing is prohibited except in specific circumstances
- All these protections also apply for applicants for employment
- The burden of proof is placed on the employer. This means that the employer has to justify any action that might be considered unfair discrimination.
These aspects of the Bill have received little publicity. What the opposition has tried to do is to create fear and insecurity by attacking the Affirmative Action aspects of the Bill. They have claimed that the Bill will reracialise South Africa, that it will lower standards, that it introduces quotas, that it encourages rigidity in the work place and will place an unsound economic burden on business.
The Facts about Affirmative Action and the Employment Equity Bill
- The Bill does not require fixed quota of employees for each of the different races. The Bill limits the scope of affirmative action to what it calls “designated groups” – Black people, women and people with disabilities. The Bill does not distinguish between people apartheid defined as not white. It defines black as meaning Africans, Coloureds and Indians.
- The Bill will not lower standards. Throughout the Bill the term “suitably qualified people” is used. The Bill states quite clearly that no employer is required to appoint anyone who is not suitably qualified [Section 12(3)(b)
- The Bill does not impose fixed targets. In fact, the Bill in section 12(3)(a) explicitly rejects fixed quotas. Rather, it requires each workplace to set its own targets. These are agreed after consultation with workers and trade unions, and must take into account the particular circumstances of each workplace.
- Each workplace does not have to reflect national demographics. The Bill allows for maximum flexibility. Employers and workers, when setting targets must take into account
- “the pool of suitably qualified people from designated groups from which the employer may reasonably be expected to appoint or promote employees”
- “regional demographics”
- “economic and financial factors relevant to the sector” and
- “the financial circumstances of the employer”
- The Bill exempts all businesses of less that 49 workers from the need to produce and monitor employment equity plans
Commission for Employment Equity
This Bill establishes the Commission for Employment Equity as an advisory body to the Minister. It represents the interests of women, the disabled and representatives of NEDLAC. It will play a role in drafting codes of good practice and the regulations. . It will serve as the monitoring body for the implementation of employment equity
Key Political Lines
With this Bill the ANC once again shows its commitment to redressing the imbalances of the past without compromising the ability of business to function efficiently and profitably.
It sets out practical and workable steps which will enable those who have been deprived of their rightful place in the South African workforce.
The Bill ensures that unqualified people will not be employed to fill racial quotas, but ensures that suitably qualified people from all sectors of society are given the opportunity to contribute to the economic development of our nation, and to enjoy the fruits of our growing economy.