South African Catholic's Bishops' Conference (SACBC)
Submission to the Portfolio Committee on Labour On The Employment Equity Bill
1. We welcome the opportunity to convey to the Committee the views of the Catholic Bishops' Conference on this important piece of legislation.
2. We identify with the sentiments expressed in the Preamble to the Bill, namely that for various well-known historical and structural reasons, certain categories of people are severely disadvantaged in the field of employment, and that it is not enough simply to repeal discriminatory laws. Something positive must be done to redress these imbalances and injustices which have resulted in a great deal of human suffering.
3. We believe that the Employment Equity Bill is a significant and well-thought out attempt to deal with these problems. It is a balanced and even-handed Bill. It is not unduly onerous on employers, it upholds the rights of workers, and it seeks to advance the interests of those who have been most seriously disadvantaged up to now.
4. The Catholic Church has always regarded work as more than simply an activity that we need to undertake in order to survive physically. Work is an element and a characteristic of our humanity. It is a necessary condition for full human development and fulfilment. It enhances our dignity; it underpins our family and community life; it offers us an opportunity to express and to share our creative and intellectual gifts. In a profound way, when we work we co-operate with the Creator, taking what has been given to us in nature and in our human abilities, and transforming it to meet our needs.(Cf. 'Laborem Exercens' Encyclical Letter of Pope John Paul II on Human Work, 1981.)
5. Work, then, is an important and sacred human activity. For this reason everything possible must be done to ensure that everyone has access to work, and to advancement in their work. This is why the Church regards unemployment not just as something unfortunate, but as a social evil. However, what we have in South Africa is not ordinary unemployment, affecting our population more or less evenly, but a form of unemployment which has been skewed by various factors so that it affects certain categories of people more particularly than others. Within the context of efforts to reduce overall joblessness, therefore, special attention needs to be given to the needs of these especially disadvantaged groups: women, black people and people with disabilities.
6. Having stated our firm support for the principles underlying the Bill, we do not wish to make detailed comments on all its provisions. There are, however, a few points which we would like to raise:
6.1 The definition of 'people with disabilities' does not appear to be wide enough to include people suffering from medical or psychological conditions, as opposed to physical or mental impairments. In our view, there are various medical conditions and diseases which, while they do not necessarily prevent a person from working, are used as an excuse to preclude people from employment. Other submissions, including that of the Employment Equity Alliance, have highlighted this with regard to HIV. We endorse those submissions and recommend that the Committee takes cognisance of them. We further point out that the same can be said of numerous other diseases or conditions such as epilepsy, diabetes, tuberculosis, and various forms of cancer, to name but a few. There is an urgent need to provide legal clarity and employment security to people whose lives are affected by these conditions - and we draw particular attention to the almost three million HIV-positive members of our society – so as to ensure that they remain economically active for as long as they are able, both for their own benefit and for the good of our country as a whole.
We submit, therefore, either
• that 'disability' be defined to include physical and mental conditions for the purposes of Chapter II only (i.e. Prohibition of Unfair Discrimination), or
• that an additional ground, namely health, be explicitly added to the grounds upon which unfair discrimination is prohibited (Section 6(1)).
6.2 We are concerned that members of the National Defence Force, the National Intelligence Agency and the South African Secret Service are routinely excluded from the benefits of labour legislation. While we understand that these are sensitive areas of employment, this is not sufficient reason to deprive those who serve in them of these benefits, especially in peace-time. There are all sorts of other fields of employment of national importance - police, health, education, to name but a few - to which such legislation applies.
6.3 Many people face more than one 'employment barrier', such as Black women and women with disabilities. The Bill fails to distinguish adequately between those who face one disadvantage and those who face many.
We suggest that the Bill make provision that employers are required, when drawing up affirmative action measures, to give priority to prospective employees who face multiple barriers.
6.4 It is crucial that the Commission for Employment Equity is itself properly representative of the designated groups. This is dealt with in section 28(3) of the Bill.
We urge the strengthening of this section so that the Minister is required to be satisfied of the representivity of the nominations by the parties to NEDLAC before appointing the Commission.
6.5 It is understandable that penalties have to be attached to contraventions of the proposed Act. However, we find that the penalties laid down in Schedule 1 are extremely severe. It is conceivable - though highly unlikely - that a first offender could be fined R500 000 for a relatively minor transgression or administrative failure. When it is considered that our courts regularly impose fines of a few thousand Rands for serious offences against people and property, such high maximum fines appear excessive.
7. The Bill has been criticised from various quarters on the basis that it further restricts labour market flexibility and, consequently, that it will make it more difficult for employers to create jobs. Given the immense national importance of job-creation, this is an argument that must be taken seriously. However, we would stress that creating jobs and redressing imbalances in the labour force are not mutually exclusive goals. Furthermore, what we need is not just more people at work, but more effective protection of the disadvantaged in our society. Employment practices must put concern for people before concern for profit. We would urge employers to accept the challenges contained in this Bill and to see it not so much as a burden, but as an opportunity for them to contribute to the achievement of important social objective of building a culture of respect for human dignity and human rights. At the same time, we urge government not to enforce the Bill's monitoring and enforcement provisions in a heavy-handed way. A flexible and measured approach to its implementation stands a much greater chance of success.
8. Finally, we reject the argument that the Bill 're-racialises' the workplace. The truth is that the workplace in South Africa has never been 'de-racialised'. It is fallacious to suggest that we deal with the racial imbalances imposed in the past simply by ignoring race as a social reality; to do so would be to entrench racial discrimination in our new social order, even though no longer imposed or encouraged by law. It would be irresponsible to allow racial discrimination to continue in the hope that it will die a natural death. That time may well never come, and it is thus the duty of the government to take reasonable steps to hasten the end of such discrimination. The same basic considerations hold true also for discrimination against women and against the disabled.
9. Subject to the concerns expressed above, we support the Employment Equity Bill, and we commend those responsible for its introduction. We wish the Committee wisdom and good judgement in its further deliberations on this matter.
Researchers: SACBC Parliamentary Liaison Office
17th July 1998