Compensation for Occupational Injuries and Diseases Amendment Bill & Employment Equity Amendment Bill; with Ministry

Meeting report

Chairperson’s opening remarks
The Chairperson welcomed all Members and officials present.

There was an apology for Ms B Mathevula (EFF, Limpopo).

He invited the Minister of Employment and Labour, Mr Thulas Nxesi, to open the meeting and provide an overview of the two Bills under discussion.

Minister’s overview
The Minister thanked all present and for the opportunity to speak.

Compensation for Occupational Injuries and Diseases Amendment Bill (COIDA)
The Minister said that the Act had been amended for the following purposes: to extend the coverage for occupational injuries and disease to previously excluded vulnerable workers as well the improvement of compensation benefits for employees. Most importantly this had been done to remove the exclusion of domestic workers from the definition of employee. The Courts had deemed this definition to be unconstitutional and discriminatory. The pandemic and the lockdowns had exposed the gaping holes in our social protection system for some such as those in the Gig Economy. The National Economic Development and Labour Council (NEDLAC) was seized with addressing this matter.

The COIDA Amendment Bill sought to introduce the policy and mechanisms for rehabilitation, reintegration and return to work to address the tendency of some employers to dismiss employees on the basis of occupational injuries or diseases. He said that other amendments sought to align the COIDA with the National Development Plan. It also sought to remove any ambiguities in some provisions of the Act. The remaining amendments were largely concerned with issues of good governance and enforcement.

He said that the Bill and it had gone through the necessary processes and various inputs had been considered. The National Assembly Portfolio Committee had approved the Bill and it was now before the NCOP. He recommended the Bill before the Committee for consideration.

Employment Equity Amendment Bill

The Minister said the Bill had gone through legislative processes yet had been delayed by those opposed to transformation in the workplace and collapsed the quorum in the NA. He said this reflected badly on parties, including the ruling party for failing to ensure the passage of this important legislation. The Amendment Bill would play a crucial role in transforming the labour market and society, still marked by historical legacies of colonialism, apartheid, and patriarchy.

The Employment Equity Act (EEA) had been enacted years ago, yet the pace of transformation in the labour market had been incredibly slow. The latest 2021 employment equity statistics show past imbalances are still not addressed. He said that self-regulation by employers to achieve objectives of the EE Act has simply not worked - there was therefore a need to review the legislation and regulations. The amendments were intended to promulgate Section 53 which dealt with EE Compliance Certificates as prerequisite for access to state contracts or to conduct business with any organ of the state. The state could not continue to financially incentivise organisations that were anti-transformation and resisted compliance with the Country’s laws. The amendments were also intended to reduce the regulatory burden on small employers, those that employ less than 50 employees. The EE Amendment Bill sought to strengthen the Act after eight years of minimal compliance. The Department was ready at an operational level to enact the Bill. The Department was at an advanced stage of sector stakeholder engagement for setting sector specific equity targets. In a nutshell the EE Amendment Bill would allow for sector specific targets to be set for disadvantaged groups and non-compliant businesses would be excluded from conducting business with the state.

The Chairperson thanked the Minister for his opening remarks. He also welcomed the Deputy Minister of Employment and Labour, Ms Boitumelo Moloi, and the Director-General (DG), Mr Thobile Lamati.

The Chairperson invited the DG to brief the Committee on EEA Bill and for the Committee to ask questions thereafter.

The DG invited Mr Vuyo Mafata, Commissioner, Compensation Fund, and Mr Thembinkosi Mkalipi, Chief Director: Labour Relations, DEL, to lead the presentation on the EEA Bill.

Employment Equity Amendment Bill Presentation
Mr Mkalipi briefed the Committee on the EE Amendment Bill and outlined the following areas of concern:

Constitutional Mandate
Objectives of the Employment Equity (EEA)
EEA Status in the 4 Occupational levels & Persons with Disabilities – Three years trend Analysis (2018 -2020)
EEA Case law
Socio-Economic Impact Assessment & consultation process on EE Amendment Bill
Parliamentary Public hearings – Matters arising on EE Amendment Bill
Areas of Agreement to correct in the Amendment Bill
Consultation progress with relevant Sector Stakeholders – “Pro-Active”

Please refer to the presentation document for more information.

Mr Mkalipi said there was one last issue to be raised which had been raised to the Portfolio Committee as well. He said Section 42 had not been amended and asked Members of the Committee if it was possible to amend this section. He said that Section 42 states that application of this Act must take into consideration regional and national demographics. The problem over the years was that both areas could not be taken into consideration. The Department wanted to amended the wording so that ‘or’ would be replaced with ‘and’ instead in this section. The Bill that was passed by Cabinet included the change, but the Bill that ended up in Parliament, unfortunately, did not reflect it. This change would make it easier for employers to choose either of the two - national or regional.

Legal Advice
The Chairperson thanked Mr Mkalipi for the presentation and invited Members of the Committee to share comments.

Ms Sueanne Isaac, Parliamentary Legal Advisor, said that she had no comments at this stage.

Ms Suraya Williams, Principal State Law Advisor, said she had nothing to add.

The Chairperson asked the legal unit to advise on the proposed Section 42 amendment. He asked what the implication of the amendment would be when the Bill went public. This would disadvantage the public as the Bill would not reflect this change when advertised. He asked how this change would be inserted and published.

Ms Isaac said the difficulty of the Section 42 amendment was that the legal implications needed to be carefully considered. The Department would have to be clear on how this issue will be communicated to the public. The issue was not raised officially before the Portfolio Committee and there was no public comment on this particular issue. It would not be compliant to proceed if there had not been comment on the proposed amendment.  

The Chairperson asked both the State and parliamentary legal advisers for further legal advice on how to proceed with the Bill going public, yet not reflecting the proposed change. He wanted to know what legal implications this may have and how it could be dealt with. How could the change be inserted if it was not adopted and the necessary public participation process had not been followed? 

Ms Isaac asked for some more time to consult on the matter with the Committee section to provide reasoned advice on this issue and how best to approach it.

The Chairperson asked if Ms Williams concurred with Ms Isaac.

Ms Williams said that the parliamentary legal advisor was best placed to advise on the procedure regarding the Bills and publications of Bills in Parliament. If need be, there would be consultation with the Parliamentary Law Advisors when a response was being prepared for the Committee.

Discussion
The Chairperson invited Members to raise any issues and continue the discussion.

Ms H Boshoff (DA, Mpumalanga) said that it had to be noted that the DA did not support the Bill for the following reasons: it would see the Minister misuse his powers, the determent of investors, the economy would be undermined, the creation of extra job losses and the increase in unemployment. There was no way that the DA could go ahead and condone the Bill.

It was all for redressing the imbalances of the past, but this had to be done constitutionally. On the statistics presented, she said that it appeared that representation focused only on the upper echelons of the private sector. Why are we not looking at the public sector as well? It appears government is turning a blind eye to the public sector. She said she was completely against one person, in this case, the Minister of Employment and Labour, having the opportunity to set EE targets. This was completely undemocratic and unconstitutional. She did not support the proposed Section 42 amendment and wanted the matter taken to the public for consultation. 

The Chairperson thanked Ms Boshoff. He said the Bill would follow the due processes and would be advertised so that the public could also make written and oral comments. Public input would be considered, and the Department would respond to it and deliberate. When the Bill was finalised, political parties would have the opportunity to make their declarations for or against it. There needed to be more clarity of the role of EE in the public sector.

Mr M Mmoiemang (ANC, Northern Cape) thanked the Chairperson, the Minister and presenter. He needed clarity on two areas. Firstly, he sought clarity on the flexibility of targets and questioned the possible negative impact of this. He was concerned that after 27 years the country was still struggling with issues of past imbalances with a lack of measures for redress and transformation in the public sector.

The second issue that called for concern was the justification that the employer could give, as contemplated by Section 53 (6), for not meeting EE targets and not being compliant with the Act. Why is there room to allow the continuation and justification of unfair discrimination? This must be stopped. The issue of redress cannot be postponed any longer. The presentation and statistics showed there is a regress in the current transformation process. However, the Bill was a work in progress and indicates that the situation was being addressed. Those that were not disadvantaged continued to excel because as they did not carry the legacy of skills shortages. The Department could rectify these imbalances. There had to be an investigation to determine if there were any policies that perpetuated discrimination and unfair practices. That was what this Bill was for, and it had to be finalised as part of the work towards healing divisions of the past.

Ms Boshoff asked the Chairperson if there was still a quorum.

The Chairperson said that there was not but as no decision-making was taking place in the meeting a quorum was not required. The meeting was only a briefing. When the Bill was finalised and there was a vote on it, the six provinces would have to be present, as it was a Section 75. He asked if any other Members wanted to ask follow-up questions.

He said that a fundamental question was whether the amendments would strengthen or improve the implementation of the EEA, especially concerning the Economically Active Population (EAP) especially for the four occupational categories. We cannot make amendments for the sake of making amendments without impacting in transformation in the workplace and the sectors.

The Chairperson said that the amendments aim was to exclude the requirements that psychological testing and similar assessment of employees must be certified by the Council. The Council does not have the capacity or procedures to undertake this certification thus a large evaluation was subject to the Labour Court. He wanted to know about the time period and said that it took a long time for the Labour Court to decide. Would we find ourselves in a situation where would have to wait for the Labour Court to find the time? Should we rather capacitate in a transitional time period to allow the Council to get capacity and set the procedures that are required?

He said that occupational categories include categories for various races and gender and questioned why the same had not been done for people with disabilities.

Teachers in both public and private schools were still predominantly white. He said that this should be considered into in relation to compliance with occupational targets and quotas, and how these applied to schools, particularly in Model C schools.

The Chairperson said he was not sure if Clause 12 which sought to amend section 53 of the Act does away with issuing of contracts to employers that have not been certified. He requested more clarity and asked if the section that dealt with state contracts would be removed.

The Chairperson invited Mr Mkalipi to respond.

Department’s Response
Mr Mkalipi thanked the Chairperson for the opportunity to speak.

In response to Ms Boshoff, he said that the law applies to all sectors of the economy; a decision was taken to use the stats reflecting progress in the private sector in the presentation. The government was currently not where it should be, but it was doing far better than the private sector. The fact that the presentation showed stats in the private sector did not mean that the laws did not apply to government. The stats on the public sector could be presented at the next meeting.

In response to Mr M Mmoiemang, he agreed that there had been no real movement in transformation of the labour market, there was no doubt about it. Progress has been very slow. We have a constitutional perspective to look at and the needs to be taken into consideration. If we set quotas, there will be Constitutional Court challenges thus we should be able to defend these. Taking a target approach will work better. We have set flexible transformation targets, and these must be met. If not, employers need to discuss this with inspectors when audits are carried out and produce justifiable reasons for non-compliance. The targets must be strong, must be enforced and implemented and if inspectors are not pleased with justifiable reasons, employers would need to be investigated. Alternatively, if the reason was justifiable, it would be unfair to penalise the employer.

In response to the Chairperson, he said these amendments would have an impact on transformation processes and strengthen enforcement. The enforcement would be easier now that it processes were online and there was no need for inspectors. The reports would be analysed by the online system, very similar to the South African Revenue Service (SARS) system and thereafter the necessary steps could be taken.

On the removal of the Council on Certification, he said this was a provision set in 2018. From 2018 till now, the Council has not been able to certify anything. This provision would create problems in the labour market and prevent employers from carrying on with business. It was best to remove any law that was not implementable. The Department would engage with the presiding officer of the Labour Court to determine how quickly things could be done in this regard. Most importantly, there was a need to produce implementable legislation, and this was the reason the Department had decided to take this route.

In response to detailing categories for people with disabilities, he said that Stats South Africa provides all demographic and EAP information. The EAP that was published did not contain a breakdown of people with disability category. An EAP of people with disabilities in the labour market was needed to determine this. The Department had been engaging with Stats South Africa about producing an EAP for people with disabilities and breaking it down into race and gender.

In response to the issue of professionally qualified and private schools, Mr Mkalipi said this law applies to all sectors of the economy which included private schools. The affirmative action law will only apply to them if they employ more than 50 employees. Presently, as we speak, this law does apply to them as well, irrespective of their size. If the affirmative law is applied, it will improve representation at different levels.

Mr Mkalipi said that Section 53 was not operationalised, because when the law came into operation debates around this issue were concerned about what compliance would entail. The certification requirement was not being removed. However, the changes enable the Department to confidently apply Section 53 and follow the correct procedures. Steps had been introduced to be taken for a company to receive certification and do business with government.

The Chairperson asked if the Department had considered the issues raised in the report South African Human Rights Commission (SAHRC).

Mr Mkalipi responded that the issue raised in that report was that affirmative action should not be about race and gender, it should be about the need. Presently, the law speaks to previously disadvantaged groups and defines designated groups as African, women, people with disabilities. Such designation should be removed, and everyone should be able to benefit equally from affirmative action laws and policies. SAHRC agreed that the report was for debate and discussion and not a policy statement that said employment equity is unconstitutional. The Department had gone to Court to defend that approach in terms of the report.

The Chairperson thanked Mr Mkalipi for his response to Member’s questions. He said that the next stage was to advertise the Bill to the media and for public comments and submissions. The Committee would first wait for Ms Isaac to provide advice on the Section 42 matter and thereafter consider it in the Committee meeting the following week.

Ms Isaac agreed to this order.

COIDA Amendment Bill presentation
The Chairperson invited Mr Mafata to lead the COIDA presentation.

The presentation detailed the amendments to the Act, as indicated by the Minister, and provided a clause by clause analysis.

Please refer to the presentation document for more information.

The Chairperson thanked the presenter for presenting to the Committee.

He cautioned Members to refrain from attacking each other on the virtual chat platform during the meeting. He asked Members to be civil in the meeting.

Ms Boshoff said that she did not think that this was sufficient. She said she did not take lightly to being attacked by an official. It was not her place to do so and she expected an apology from the Deputy Minister (DM). This was not the way for a Minister to speak a Member of any Committee.

The DM responded that she was not out of order on this matter and that it was no matter to apologise about. She responded to a question on the chat about members of the ruling party being lacklustre in attending meetings.

The Chairperson said that the meeting should not be disrupted by these issues, and they were to continue with the meeting agenda.

Ms Boshoff raised a point of order and said this was an attack on a member of the opposition party. She asked why the ANC Members of the Committee were not present at the meeting. Why do they get away with it and why must we quorate for them?
 
The Chairperson said attendance by parties and other complaints should be raised with the Chairperson of the NCOP or other relevant authorities. He requested that Members return to the business of the day.

Discussion (COIDA)
Ms Williams said she had no comments on the COIDA Bill presentation at this stage.

Ms Boshoff asked whether the regulation prevented medical service providers from seeding their claims to third party pre-funders for payment by the fund.  She said she knew this regulation was challenged by the Parliamentary Portfolio Committee on Labour and the offending clause was removed. She understood that it had been republished on 19 October, calling for 60 days of public comment but did not pick this up in the presentation.

Mr Mmoiemang asked if more details could be given on the amendment to Section 84 that addressed the exemption of certain employers from assessment. What factors would be considered and did the DG concur on this with the Minister?

He said that part of the amendment put forward, including Section 39 to 83, is to avoid burdening the Court with investigation. This should be reviewed as on-compliance cannot be decriminalised. What will the impact of this be? Will this not make it easier for employers to contravene COIDA policies?

The Chairperson said that he was also concerned by the issue of administrative fights and reluctance to decriminalise non-compliance. He said he was aware that Members would not be voting in this meeting but wanted to propose this issue before the committee. A step-by-step approach could be enforced, such as administrative fines, and thereafter the matter could be taken up in Court if the employer refused the penalty.

The Chairperson asked for more clarity on Section (1) (F).

Mr Mafata said in response to some of the questions asked – there is no regulation that the Minister has issued in terms of COIDA but it seeks to prohibit third parties. The fund has issued a notice alerting stakeholders of the intention to prohibit payment of claims to accounts other than those of the claimants. As a part of the process, we issued out the notice to get the views of the stakeholders and take these into account and make a final decision.

In response to Section 84, the section prescribes the circumstances under which the employers can be exempt from assessment. These are national and provincial governments or employees that are employed in the national or provincial spheres of government. It also refers to the employees employed in the local authorities in the municipalities, provided such municipalities can keep security sufficient to cover incidents where they do not have sufficient cover for their employees. There may be instances where employers or employers seek to obtain a similar policy cover, and this should be approved by the DG. The fund would receive the claim adjudicate, but the honouring of the payment would be by the employer concerned.

He said that decriminalisation would take away the inspector’s authority and it would be difficult to work toward achieving the overall redress outcomes.

He said the amendment to Section 1 would need to be made more explicit about who qualifies and who receives the benefits.

Mr Mmoiemang asked about the appointment of inspectors – the Bill still leaves the employer with discretion to allow the inspectors access to their site or not. Did the Department consider amending this or is it linked to other related constitutional provisions, for instance, the right to privacy?

Mr Mkalipi responded that what is important about the issue of access is to distinguish between an employer who is refusing access and employers who ask for access to be delayed, due to whatever circumstances on site at the time. The inspectors do have the right to go to the police and get access, but had to be reasonable and flexible about whether the employers refuse inspection.

Closing remarks
 
The Deputy Minister said from the Department’s side it was trying to provide all the necessary information that the Committee would want. It was doing this to the best of its ability and providing truthful information about the work done as a Department. She said she did not think there was any intention on their side to mislead the Committee. She said it was there to work together. She thanked the Chair for giving them the opportunity to humbly present before the Committee.

The Chairperson thanked the DM for her closing remarks and the Minister for attending the meeting. He also thanked all Members for their attendance and participation in the meeting. He said the matters on the Bill would resume in 2022 after recess. The end of the year would be used for the advert and gathering public commentary.

The minutes were deferred to the next meeting due to a lack of quorum.

The meeting was adjourned.