Submission to the Portfolio Committee on Labour

The SACC strongly supports the Employment Equity Bill and urges its prompt adoption and implementation. At the same time, the SACC calls for strengthening amendments to address multiple barriers to employment, wage inequity, discrimination against people living with HIV/AIDS and other manageable medical and psychological disorders, and the composition of the Commission on Employment Equity. We ask also for clarifying amendments with respect to the exclusion of ministers of religion from the definition of "employee" and to the adoption of a more inclusive definition of "family responsibility".

1.0 Employment Equity is an essential component of social and economic justice
1.1 The South African Council of Churches (SACC) is the facilitating body for a fellowship of 25 Christian churches, together with one observer-member and associated para- church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.

1.2 The SACC strongly supports the adoption of legislation that abolishes unfair discrimination and gives full effect to the constitutional guarantees of equal protection before the law and equal enjoyment of all rights and freedoms for all South Africans. We believe that such legislation is essential both to the achievement of social and economic justice and to the promotion of reconciliation and unity. Further, we believe that the creation of equal opportunities is consistent with our theological understanding of the equal humanity and dignity of all human beings as children of a loving God, created in God's own image.

1.3 The SACC recognises that, given apartheid's systematic exclusion of the majority of South Africans from access to education, training, and large segments of the labour market, it is essential for the government and employers to undertake positive measures to ensure equal opportunities for those who have been subject to unfair discrimination in the past.

1.4 In this context, we welcome the Employment Equity Bill (hereafter,"the Bill") and urge its adoption and expeditious implementation. We commend the Minister and Department of Labour for its leadership on this issue, and we applaud labour and business representatives for their contributions to the refinement of early drafts of the Bill. We trust that the legislation will prompt all employers—including member denominations of the SACC—to reexamine their employment policies and practices and to identify ways to achieve work forces that accurately reflect the diversity of South Africa's population.

1.5 Although we strongly support the Bill in principle, we have reservations about some specific provisions. We hope that the Portfolio Committee on Labour will amend the Bill to address these concerns. This submission raises the following issues:
• Multiple barriers to employment
• Reduction of wage differentials
• Discrimination against those regarded as having disabilities
• Discrimination against people with HIV
• Status of members of the clergy
• Composition of the Commission for Employment Equity
• Definition of "family responsibility"

2.0 Multiple barriers to employment
2.1 The Bill does not explicitly acknowledge that many individuals, especially black (African, Coloured, and Indian) women, face multiple barriers to employment. The experience of other nations with similar legislation suggests that the primary beneficiaries will be those who must overcome the fewest obstacles—black men, white women, and white men with disabilities.

2.2 Employers should be encouraged to compensate for the impact of multiple barriers by developing employment equity plans that give the highest priority to the hiring of qualified individuals who have faced the greatest exclusion in the past. At a minimum, black women should be recognized as a distinct group within the definition of "designated groups". This would oblige designated employers to give specific attention to the situation and needs of black women when undertaking the analysis, goal- setting, and reporting required by sections 19(2), 20(2)(c), and 21(4).

3.0 Reduction of wage differentials
3.1 Unfair discrimination not only limits the employment opportunities available to South Africans on the basis of race, gender, and disability, but it also:
• ensures that the job opportunities that are open to victims of discrimination cluster at the lower end of the wage scale;
• promotes dramatic differences between the earnings of individuals doing essentially the same work; and
• reproduces a high degree of economic inequality, with the result that, among countries classified as "upper middle income" by the World Bank, South Africa is second only to Brazil as the nation with the most inequitable distribution of wealth.
A just and comprehensive Employment Equity policy should be designed to address all of these unjust effects of discrimination.

3.2 The SACC commends the inclusion of section 6(4), requiring all employers to address unfair discrimination with respect to wage differentials:
(4) An employer must address unfair discrimination in relation to a wage differential—
(a) through collective bargaining;
(b) through other bargaining;
(c) through measures provided for in the Basic Conditions of Employment Act; or
(d) in any similar manner that is appropriate in the circumstances.
We believe that this represents an important first step toward rectifying the economic disparities generated by policies of the past.

3.3 However, this provision, in its present form, does not clearly identify the objectives it intends to achieve. We are concerned that this lack of precision will invite employers to read section 6(4) as a limited obligation to deal only with continuing wage differentials within occupational categories while ignoring unjustified disparities across occupational categories.

3.4 The SACC recommends that the Bill be amended to promote the adoption of more equitable wage scales. This objective could be achieved by:
• articulating it in the purposes of the Act (section 2);
• adding clarifying language to section 6(4);
• and requiring designated employers to consider overall wage differentials in satisfying the analysis, planning, and reporting responsibilities delineated in sections 19, 20, and 21.

3.5 In addition, we suggest that NEDLAC discuss the issue of overall wage differentials in order to set a target (or a series of targets for various employment sectors) for the ratio of the highest to the lowest wage levels within a company or organisation. These targets could be used in regulations governing the implementation of the Bill and could also serve as a benchmark for assessing compliance with the provisions recommended above.

4.0 Discrimination against those regarded as having disabilities
4.1 The SACC strongly endorses both the prohibition on unfair discrimination against people with disabilities and the recognition of people with disabilities as a "designated group" who should receive explicit consideration in the preparation of employment equity plans.

4.2 We also recognize that many people suffer unfair discrimination in employment because they are regarded by their employers (or potential employers) as having a disability, even if they do not exhibit any actual impairment or consider themselves to be disabled. This group of people would include, in particular, individuals living with medical or psychological conditions—such as diabetes, epilepsy, bi-polar disorder, etc.—which can be effectively managed with medication.

4.3 From a policy perspective, it seems impractical to require employers to take positive measures with respect to those who have medically manageable disorders. However, it is essential that discrimination against such people be prohibited as unfair. We suggest that this issue be addressed in tandem with the particular case of HIV/AIDS infection, discussed in the following paragraphs.

5.0 Discrimination against people living with HIV
5.1 The June 1998 report of the United Nations Joint Programme on HIV/AIDS found that 2.9 million people in South Africa are living with the human immuno-deficiency virus (HIV). Widespread ignorance about the virus leaves individuals living with HIV vulnerable to prejudice that constrains their ability to obtain and hold jobs. The SACC considers it essential that employment equity policies protect this growing section of the population from unfair discrimination in the labour market.

5.2 HIV infection constitutes a "long-term or recurring physical ... impairment which substantially limits ... [a person's] prospects of entry into, or advancement in, employment" and should therefore properly be recognised a disability as defined in the Bill. However, neither South African courts nor legislation have clearly acknowledged HIV infection as a disability. Consequently, there is no guarantee that the Bill in its present form will prevent unjustified discrimination against people living with HIV. Furthermore, although section 7 of the Bill prohibits irrelevant medical testing, employers could exploit the broadly-worded exemption contained in section 7(b) to subject employees or potential employees to unnecessary HIV testing.

5.3 At the same time, recognition of HIV infection as a disability throughout the Bill creates other difficulties, especially with regard to the affirmative action measures contemplated in Chapter 3 and the corresponding monitoring and enforcement procedures outlined in Chapter 5. In particular, this approach would give employers incentive to identify employees who are living with HIV in an effort to meet their affirmative action goals. This could expose people living with HIV to additional discrimination or harassment, thereby undermining the objectives of the Bill. Given the growing incidence of HIV infection in the economically active population, it might also thwart the Bill's goal of increasing opportunities for people with other types of disabilities.

5.4 In light of the concerns raise in sections 4 and 5 of this submission, the SACC recommends that Chapter 2 be amended through the inclusion of a new section 5 and the renumbering of subsequent sections. The new section 5 would read:
5. People living with HIV/AIDS or any manageable medical or psychological disorder shall be considered to be people with disabilities for the purposes of this chapter only.

6.0 Status of members of the clergy
6.1 At present, the Bill adopts the definition of "employee" used in the Labour Relations Act No. 66 of 1995:
"employee" means any person other than an independent contractor who—
(a) works for another person or for the State and who receives, or is entitled to receive, any remuneration; and
(b) in any manner assists in carrying on or conducting the business of an employer, and "employed" and "employment" have corresponding meanings;
Several SACC member churches have expressed concern that this definition is ambiguous, particularly with respect to its applicability to ministers of religion.

6.2. South African jurisprudence provides little additional clarity concerning the employment status of priests and pastors. In a judgement dated 30 June 1997, the President of the Industrial Court ruled in the case of Paxton v. the Diocese of Port Elizabeth that the Industrial Court could not hear the Revd. Paxton's application for relief in an allegation of unfair dismissal under the terms of the Labour Relations Act No. 28 of 1956 (as amended). The President accepted the argument of counsel for the Church of the Province of South Africa (CPSA) that the plaintiff was not an employee of the Diocese of Port Elizabeth. In addition, he found that, in terms of the Canons of the CPSA, the Diocese was not an employer. Instead, members of the clergy were seen to be respon- ding to a call from God. They therefore hold ecclesiastical offices and perform the duties of their offices subject to the laws of the Church. The President's ruling stated:

"Under the circumstances I find that the applicant was not an employee as contemplated in the Act, with the result that this court lacks Jurisdiction to entertain the dispute."

It should be noted that the definition of "employee" in the Labour Relations Act, 1956, was virtually unchanged in the Labour Relations Act No. 66 of 1995.

6.3 At the same time, in at least one recent case involving the Uniting Reformed Church currently pending before the Commission for Conciliation, Mediation and Arbitration (CCMA) in the Northern Cape, the CCMA has decided to hear an application for relief in an allegation of unfair dismissal by a member of the clergy. This action seems to run counter to the Industrial Court ruling that priests and pastors are not employees in terms of South African labour law.

6.4 Differences in the theological doctrines and ecclesiastical structures embraced by SACC member churches result in varying degrees of involvement by denominational leaders in the appointment of clergy and the determination of benefits. Without additional clarification concerning the status of members of the clergy, the current definition of "employee" contained in the Bill may lead to a situation where pastors in more administratively centralised traditions are seen by the State as "employees" of the denomination, while their counterparts in more congregational traditions are viewed as "employees" of a particular congregation or as "independent contractors." This would create unnecessary inconsistency in the legal obligations that impinge on the various denominations.

6.5 It should be noted that the ramifications of this matter extend well beyond the immediate issue of employment equity. Consequently, we hope that it will be possible for SACC member churches to engage in additional dialogue on the issue with the Department of Labour at a subsequent stage.

6.6 In the interim, the Bill must provide definitive guidance to churches concerning their legal obligations. Without this, there is the danger of greater uncertainty, unintentional neglect of responsibilities, and, ultimately, repeated resort to judicial clarification.

6.7 To define members of the clergy as employees would raise multiple legal conundrums, not least of which would be the identification of corresponding employers—a question that invites considerable theological and doctrinal debate. Moreover, some of the SACC's member churches have theological restrictions on who may serve as members of the clergy—restrictions that are clearly covered by the Constitutional protection of freedom of religion, belief and opinion (section 15). In such cases, it would be nonsensical to require the denomination (if, indeed, it was decided that the denomination is an employer) to develop an affirmative action plan for its clergy.

6.8 The SACC therefore requests that, for the purposes of this Bill, the definition of "employee" be amended to read:
"employee" means any person, other than an independent contractor or a minister of religion, who—
(a) works for another person or for the State and who receives, or is entitled to receive, any remuneration; and
(b) in any manner assists in carrying on or conducting the business of an employer, and "employed" and "employment" have corresponding meanings;
This formulation is consistent with the belief that members of the clergy are not employees as such, but are called to service by God. We understand that it is also consistent with the law in several other countries. The exclusion would not affect professional or support staff in the employ of denominational offices, local congregations, or para-church organisations.
6.9 This request represents a practical attempt to resolve a legal ambiguity and should not be construed as a rejection of the principle of employment equity. The SACC intends to encourage its members to demonstrate their support for employment equity by voluntarily preparing employment equity plans, even if they are not regarded as designated employers.

7.0 Composition of the Commission for Employment Equity
7.1 The SACC noted with approval the provision of the draft Bill which would have ensured that at least one woman and one person with disability would be included among the nine members of the Commission for Employment Equity. At the same time, the reasons for fixing such a low floor for women's participation remain unclear. In addition, there is no obvious rationale why these individuals should be drawn exclusively from organisations representing the community and development interests.

7.2 We regret that even this minimal reservation was deleted from the final version of the Bill. We appreciate that a new section (section 28(3)) has been added to encourage "due regard to promoting the representivity of people from designated groups" in the nomination process. However, we do not believe that an unenforceable provision such as this will be sufficient to ensure the representation envisioned in the original bill.

7.3 We would recommend that section 28(3) be replaced by the following language:
(3) In order to promote the representation of people from designated groups, the Minister shall ensure that the Commission includes at least five black people, at least three women, and at least one disabled person. A party that nominates persons in terms of subsection (2) must have due regard to this requirement in selecting nominees.

8.0 Definition of "family responsibility"
8.1 The Bill currently defines "family responsibility" (cited in section 6(1) as a prohibited basis for discrimination) as: "family responsibility" means the responsibility of employees in relation to their dependant children, or in relation to other members of their immediate family who need their care or support.

8.2 The Bill does not contain a further definition of the term "family", but the present wording implies a narrow definition that is out of step with the anti-discriminatory nature of the legislation. Given that section 6(1) outlaws discrimination in employment on the grounds of (among others) marital status or sexual orientation, the definition of "family responsibility" should also reflect a more inclusive understanding of family.

8.3 The SACC recommends that the definition be amended to read:
"family responsibility" means the responsibility of an employee with respect to his or her spouse or partner, dependant children, or other family members who require that employee's care or support;

9.0 Conclusion
9.1 The SACC appreciates the opportunity to express formal support for the Employment Equity Bill and to suggest changes that we believe will further strengthen the legislation. We urge the Portfolio Committee to address the substance of all of the concerns we have cited, while recognizing that alternative solutions may prove more practical or effective.

This information is produced by the Public Policy Liaison Office of the South African Council of Churches. The Public Policy Liaison Office monitors and analyzes key public policy issues under consideration by parliament and government ministries, alerts government to the concerns of the SACC, and assists people of faith to be more familiar with and involved in public policy debates.
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