The Employment Equity Amendment Bill was passede by the National Council of Provinces on Thursday. (David Harrison)
The ANC has celebrated the passing of the Employment Equity Amendment Bill by the National Council of Provinces (NCOP) on Thursday, slamming the opposition Democratic Alliance for voting on the Bill in Parliament and later backtracking.
The ANC said the Bill gave "qualified and experienced Blacks the equal opportunities they deserve, which they would otherwise have not obtained simply because of the colour of their skin or their background".
It is an amended version of the original 1998 Bill. The Bill has split reaction, with some like the DA decrying it as unrealistic with draconian measures that will cripple small businesses and economic growth.
Anthea Jeffreys, head of special research at the South African Institute of Race Relations, said the Bill "strips away key defences for businesses battling to meet unrealistic racial quotas" and also but "more than triples current fines.
"In addition, it cuts short the enforcement process so as to make prosecutions easier and faster."
Business Day reported that there had been substantial agreement on most of the amendments contained in the Bill, but three areas of concern were left unresolved by negotiations in the National Economic Development and Labour Council (Nedlac): scrapping the compulsory requirement that the department obtains an undertaking from employers; repealing the right for employers to object to and appeal against compliance orders; and the controversial amendments of introducing of turnover-based fines of up to 10% for repeated breaches of the act.
'Misled'
The DA voted to pass the Bill on October 24 in Parliament along with the ANC, led by their spokespeople in labour parliamentarians Sej Motau and Andricus van der Westhuizen. Party leader Helen Zille later apologised several weeks later, saying the party had been misled, and withdrew the DA's support on November 7 later after a major outcry over the party's about-turn on race-based legislation. This caused ideological fractures in the party between those who support and oppose BEE and employment equity divided largely along colour lines. The party is meeting for its policy conference this weekend to find consensus on the issue.
Analysts say the party faces a conundrum: they must support BEE in order to attract black voters and grow, but will risk losing their traditional base of voters who are opposed to the policy.
The party could not withdraw their vote and vowed to oppose the Bill at the NCOP, but their proposed amendments went unheeded.
The ANC said in its statement on Thursday that the Bill's amendments to the original includes changes to the "definition of 'designated groups' with a view to limit beneficiaries of Affirmative Action to, amongst others, persons who were citizens of South Africa before the democratic era and their descendants. It also ensures equal pay for work of equal value; strengthens compliance and enforcement mechanisms; and increases non-compliance fines".
'Verwoerdian'
The DA have called the act "Verwoerdian" in its approach, saying ultimately it would impose "rigid racial-based quotas".
But organised business who were party to negotiating the Bill poo-pooed those claims. Business Unity South Africa (Busa) and leading labour lawyers told Business Day on Friday that it was a misinterpretation that companies would be forced to align the representivity of their workforce strictly with population demographics.
Critics of the amendment Bill have slammed it for removing factors that would justify a company being unable to hire on the basis of demographic criteria, such as the pool of suitably qualified people available.
However, labour lawyers pointed out an overlooked new provision that caters for this when the Labour Court assesses compliance.
They must consider "the reasonable steps taken by an employer to appoint and promote people from designated groups".
Several labour lawyers told Business Day the "reasonable steps" provision is a "catch-all", which would mean that factors such as the availability of suitably qualified staff and commercial considerations, would still be taken into account.
However, proving compliance will become more costly and arduous given how stretched the Labour Court is already.