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Speech by Labour Minister Mildred Oliphant 

11 September 2012

Commission for Employment Equity Report – 2012

Click here to download the Commission for Employment Equity Report – 2012 (56 Pages) 

Speech by Labour Minister Mildred Oliphant

12TH COMMISSION FOR EMPLOYMENT EQUITY (CEE) ANNUAL REPORT

Director-General of Labour;

Senior managers and officials of the Department of Labour;

Chairperson of the Commission for Employment Equity;

Members of the Commission for Employment Equity;

Members of the media;

Ladies and gentlemen;

Welcome to you all!

Before continuing, may I give expression to the Freedom Charter, a key cornerstone of our democracy where on 26 June 1955, it was declared that all shall be equal before the law in South Africa.  This declaration called for the repeal of all laws that discriminate on the grounds of race; colour and belief.  These aspirations placed equality, human dignity and human rights at the core of our democracy.  

The Employment Equity Act was passed by parliament on 21 August 1998 as one of the key interventions introduced to give effect to the Constitutional provisions relating to the achievement of equality in our country.  This Act was the first piece of equality legislation to be passed by Parliament, which was promulgated in October 1998.

A rather obvious observation in the workforce of our country, which continues even today, are the gross under-representation of black people, women and people with disabilities in key areas of the labour market, for example in management and science and technology-based occupations.

Employment equity is therefore not only a moral and human rights imperative; it is a pre-condition for the achievement of sustainable development, economic growth and equality in the country, which should be supported by descent work initiatives.  Pro-active measures are required by organisations to develop and harness an inclusive and diverse workforce that is free from unfair discrimination and is reasonably demographically representative.

It is very clear from the report that males and White people are more likely to be recruited and promoted when compared to any other group.  Progress on the employment of people with disabilities still remains rather dismal when compared to the other designated groups. 

Statistics provided by the Chairperson today are both exciting and disappointing at the same time.  On the one hand, positive signs are evident at the Skilled and Professionally Qualified levels where equitable representation is likely in the not so distant future if current progression patterns continue.  On the other hand, the same cannot be said for the two most upper occupational levels, i.e. at the Senior and Top Management levels.  The workforce movements at these levels indicate that equitable representation will only be achieved in the distant future if current patterns continue – although Whites accounted for the highest amount of terminations, they also accounted for the most number of recruitments and promotions.

With employment equity we foresaw, or at least expected, some resistance from the private sector, but resistance to employment equity was not expect from any level of government.  Figures from reports received show the Western Cape Province as the worst performing when compared to all other provinces in terms of race at nearly every occupational level – it also shows that the Western Cape is also among the worst performing province in relation to Black women – and this is taking their provincial Economically Active Population (EAP) into account.  Ladies and Gentlemen, the Western Cape is performing badly both in the Public and Private Sector in respect of employing Black people, both men and women.

My department engaged in the Director General (DG) Review process from the beginning of 2006 to mainly assess the substantive compliance of employers.  During the past few years, the DG has been assessing the compliance levels of JSE listed companies, providing them with guidance, making recommendations and approving Employment Equity Plans (EE Plans).  In the 2011/2012 financial year a process was started to follow-up on companies already DG Reviewed in order to gauge the extent to which they were implementing their approved EE Plans and whether they are adopting fair remuneration strategies that does not have a male, female or disability bias, or a bias based on any other arbitrary grounds.

I note the outcomes of the Director-General Review follow-up process and the varied outcomes which revealed the following:

  • Some of the companies did not only reach their targets set in their approved EE Plans, but went even further in terms of representivity;
  • Resistance to provide all the information, in particular the Income Differentials to make a proper assessment of progress;
  • Some employers either moved very little or not at all towards the targets and goals set in their approved EE Plans;
  • Many of the employers, particularly CEOs, investigated remuneration disparities properly, acknowledged those discrepancies that may exist based on race and gender grounds, and have incorporated steps in their EE Plans to correct them now or in the not too distant future. 

My department is currently in the process of following up on the remainder of the companies already DG Reviewed.  Many more companies are coming forward on a voluntary basis requesting to be DG Reviewed because they are hearing of the benefits of the process from those who have completed it.

Having said that, I also want to applaud all the 7 companies mentioned in the report for their commitment to transforming their workplaces. We have recently read in the media how one of the retail company, Woolworths has been attacked by anti-transformation individuals and movements on their commitment to transformation. I want to reiterate that all Woolworths, like all other companies that are mentioned in this report must be deterred from pursuing their transformational objectives outlined in the Employment Equity Act.    There will always be those that hate to see integration in the workplace and society in general that seeks to find fault with those that genuinely implement employment equity as a means of addressing our painful past and imbalance in our society. As Government of South Africa and those that seek genuine transformation, we shall continue to encourage companies like Woolworths to continue with the transformation and integration of the society. 

It is important to highlight that Employment Equity Act is not only about Affirmative Action, but also about the elimination of unfair discrimination provisions – one of these being the management of the impact of HIV and AIDS in the world of work.  My department together with the Commission has reviewed the South African HIV Code of Good Practice published in the year 2000 and its Technical Assistance Guidelines to bring them in line with the ILO Recommendation 200 of June 2010.  I am pleased to announce that the Code and its technical assistance guidelines have been reviewed with the assistance of the ILO and NEDLAC constituencies.

In response to the slow pace of transformation as outlined in this report, on the advice of the Commission for Employment Equity, my department embarked on a process to amend the Employment Equity Act, which has now gone through the NEDLAC negotiations. The proposed changes include, amongst others:

The Promotion of fair treatment and Equal Pay for work of Equal value:

  Section 6(1) which prohibits unfair discrimination is amended to clarify that:

  • Discrimination is not permitted, either on any of the prohibited grounds listed in the section or on any arbitrary ground.
  • A new section 6(4) is inserted to:
  • To deal with differences in pay/conditions of work between employees performing the same or substantially the same work or work of equal value will amount to unfair discrimination unless the employer can show that differences are fair in relation to experience, skill, responsibility and qualifications.
  • Section 6(5) is inserted to enable the Minister to issue a regulation dealing with the criteria and methodologies for evaluation work of equal value.

Section 10(6) dealing with unfair discrimination disputesis amended to:

  • Allow employees an option of referring unfair discrimination cases for arbitration in the CCMA arbitration in two circumstances:
  • If the employee’s cause of action arises from an allegation of sexual harassment on a prescribed ground; or
  • Lower paid employees (those earning less than the earnings threshold prescribed under the section 6(3) of the BCEA) will be entitled to refer any discrimination claim to the CCMA for arbitration, whereas currently the CCMA can only conciliate on unfair discrimination cases.

The strengthening of the implementation, compliance and enforcement provisions of the Act:

Section 20 dealing with Employment Equity Plans is amended to ensure that:

  • All designated employers who fail to prepare and implement their EE Plan can be referred directly to the Labour Court by the Director General for a fine, without first securing an undertaking or issuing a compliance order.

Section 21 (EE Reports) is amended to ensure that:

  • Failure to submit an EE Report by an employer can be referred directly to the Labour Court by the Director General for a fine without securing an undertaking or issuing of a compliance order.

Written Undertaking (section 36(1) & (2)) is amended to:

  • make the power to request employers to make an undertaking discretionary; and
  • empower the Director General to apply to the Labour Court to make such undertaking an order of the Labour Court in instances of non compliance.

Compliance Order (section 37(1) & (3)) is amended to:

  • Clarify by specifying the sections to which a labour inspector has powers to issue a compliance order; and eliminates the step of objections to a compliance order by employers.

Provisions of Objections (section 39) and Appeals (section 40)against compliance order are repealed to:

  • Simplify and eliminate unnecessary mandatory steps in the enforcement mechanisms of the Act.

Assessment of compliance (section 42) is amended to:

  • empower the Minister to make regulations dealing with the assessment of compliance, including specifying circumstances in which it should be assessed by reference to the national or regional economically active population.

Section 45 dealing with DG Recommendationsis amended:

  • To empower the Director General to apply to the Labour Court for an order directing an employer to comply with a request made during a review of the employer’s compliance with the Act or a recommendation made as a result of such a review.

Lastly, but not least, the Fines/ penalties in Schedule 1 of the EEA are amended to:

  • Adjust the maximum fines that may be imposed for contravention of the Act to reflect the change in the value of money.
  • In addition, the employer’s turnover may be taken into account in determining the maximum fine that may be imposed for substantive failures to comply with the Act.

Having said that, it is important to note that the Employment Equity Amendment Bill has been approved by Cabinet at their meeting for tabling in Parliament.

Ladies & Gentlemen, let me take this opportunity to thank the CEE for its hard work and, at the same time, call upon all stakeholders to support the amendments to the Act because the more we resist, the more people will persist calling for change and transformation not only in our labour market, but in the society as a whole.

Thank you

Information provided by the Department of Labour

 

POPI and consent - don’t get caught in your own net

By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr

 

2020 has given rise to many challenges for employers. The Protection of Personal Information Act 4 of 2013 (POPI) poses yet another challenge. Employers have a grace period of one year as of 1 July 2020 within which to ensure their compliance with POPI. 

 

POPI distinguishes between the collection, storage and processing of personal information and special person information. Special personal information includes e.g. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special personal information of its employees.

 

It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. While employers may hope for a “quick fix” to ensure compliance and trust that including a broad, “catch all” consent in employees’ contracts of employment will be suffice – this may not prove to be adequate in every instance. A general consent may be sufficient to cover some of the personal information that will be processed during the course of an employee’s employment, however employers should be aware of the risks associated with relying on blanket consents in every instance. 

 

Section 1 of POPI defines consent as “any voluntary, specific and informed expression of will in terms of which permission if given for the processing of personal information”. Written consent is not expressly required. However, it will be for the employer in its capacity as responsible party to show that it has secured an employee’s consent where it is relying on consent. In the circumstances it is advisable for employees’ written consent to be secured. 

 

The requirement that consent be voluntary, specific and informed means that there should not be any pressure or force placed on an employee to consent. The employee should also be sufficiently aware of the content of the processing given the requirement that the consent is informed.

 

The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. In all likelihood it will have regard to the General Data Protection Regulation 2016/679 (GDPR) which requires that the consent is unambiguous and must be given by a clear affirmative act. It may well be that the Information Regulator interprets consent restrictively in keeping with the GDPR.

 

In the circumstances clauses relating to the processing of personal information in employees’ contracts of employment which are aimed at securing employees’ consent to the processing, should at minimum set out the nature and scope of the personal information that is to be processed, the reason for the processing, consent to further processing, consent to collection from a source other than the employee and consent to the transfer of the information. The employees must be able to understand in clear language what they are consenting and the extent of the consent. Where necessary provisions should also be made specifically for the processing of special personal information.

 

Employers should bear in mind that POPI does not demand consent in every instance and that processing may take place without consent where e.g. the processing is required in terms of law, or for the purposes of protecting a legitimate interest of the employee.

 

Employers will need to determine on a case by case basis whether the processing which they wish to conduct falls within the scope of the consent which they may have secured from an employee in his or her contract of employment or whether they will need to rely on one of the other basis set out in POPI. 

 

Both special and general personal information may be processed lawfully if the processing is necessary for the “establishment, exercise or defence of a right or obligation in law”. This would cover instances where e.g. an employer processes employees’ personal information to comply with its obligations under the Employment Equity Act.

 

An employer can process general personal information without an employee’s consent where such processing either protects a legitimate interest of the employee, or is “necessary for pursuing the legitimate interest of the responsible party or of a third party to whom it is supplied”. While the term “legitimate interest” is not defined in POPI, it is likely that the Information Regulator will seek guidance from the GDPR in this regard. The GDPR has established a three-pronged test in interpreting “legitimate interest” which considers purpose, necessity, and balance. It first asks, “Is there a legitimate reason or purpose for the processions?”, secondly “Is processing the information necessary for that purpose” and thirdly “Is the legitimate interest overridden by the interests of the data subject?

 

A determination is made as to whether there is a “legitimate interest” for the purposes of processing personal information based on the answers to these three questions.

 

So as not to fall foul of the provisions of POPI it is recommended that employers develop internal policies that will assist them in determining whether in each instance, personal information to be processed is covered by the general consent clause in an employee’s contract of employment alternatively, by one of the other basis for lawful processing. In the absence thereof, the employer will need to prepare and secure a further consent from the employee.

 

For more information, please contact Gillian Lumb at   

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

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