SUBMISSION ON EMPLOYMENT EQUITY AMENDMENT BILL OF 2012
(as introduced by the Minister of Labour (National Assembly))

19 November 2012

1) A principal purpose of the Bill is to bring the Employment Equity Act (EEA) fully in line with South Africa’s international law obligations. Despite this, the proposed new section 11 (hereafter “section 11”) is in clear conflict with International Labour Organisation Convention C111 Discrimination (Employment and Occupation) Convention of 1958 (hereafter “Convention 111”).

2) Convention 111 prohibits all “discrimination” (as defined) against employees on the basis of race, sex, gender and other grounds (in effect, all those listed or referred to in section 6 of the EEA). The reason is that such discrimination amounts to a violation of an employee’s right to equality and dignity. Employer conduct based on the inherent requirements of a job or on affirmative action measures is therefore excluded from the ambit of “discrimination”.

3) Section 11(1)(b), however, proposes to allow any form of discrimination on listed grounds which is considered “rational” and “not unfair” or “otherwise justifiable”. It gives no indication of when discrimination will be permissible on this basis. In terms of Convention 111 this can never be the case; in terms of section 11 it will be left to the discretion of the court or CCMA commissioner to find that such discrimination is
permissible.

4) Section 11(1)(b) thus contradicts section 3(d) of the EEA, which states that the Act must be interpreted “in compliance with” Convention 111. Section 11(1)(b) cannot be interpreted in compliance with Convention 111.

5) Section 11(1)(b) is also in conflict with sections 39, 231 and 233 of the Constitution which, taken together, mandate compliance with international law when interpreting legislation as well as the Bill of Rights itself.

6) Rather than bringing the EEA in line with Convention 111, the apparent purpose of section 11(1)(b) is to bring the EEA in line with a number of Labour Court decisions in which the prohibition of discrimination on listed grounds was similarly diluted by the assertion of scope for “fair” discrimination on prohibited grounds. There are several possible explanations for this phenomenon.

7) In early judgments of the Constitutional Court the element of fairness was included in the test for unfair discrimination when applying the equality clause of the Constitution to legislation.

[1 In particular, Harksen v Lane NO 1997 (11) BCLR 1489 (CC), where the equality clause of the interim Constitution was applied to the Insolvency Act.]

This test was adopted by the Labour Court prior to the enactment of the EEA in relation to employer conduct and was mechanically  followed in a number of judgments thereafter.

Since 2006 the Constitutional Court has made it clear that, where legislation (such as the EEA) is enacted to give effect to a basic right, the courts may not bypass that legislation by relying directly on the Constitution.

[2 Starting with Min of Health and Another v New Clicks SA (Pty) Ltd and Others [2005] JOL 17488; 2006 (1) BCLR 1 (CC).] 

Despite this, the Labour Court has in several cases continued to bypass the EEA, as interpreted in compliance with Convention 111, by relying directly on the original constitutional test without reference to later jurisprudence.

8) A second reason for assuming a right of employers to discriminate “fairly” against employees on listed grounds is that, on a literal reading, this appears to be implied by the prohibition of “unfair” discrimination on those grounds.

In fact, interpreting the term “unfair” in compliance with Convention 111 means one of two things:

i) The term “unfair” distinguishes “discrimination” (in the sense of Convention 111) from “mere differentiation” – “unfair discrimination” thus means the same as “discrimination” in other jurisdictions; and/or

ii) The term “unfair” refers to the grounds of prohibited discrimination collectively – this is so because in South Africa, in contrast to most countries, the list is open-ended and not confined to specific grounds).

9) A third factor arises from the fact that certain judgments have continued to regard affirmative action measures as a form of “discrimination” which must be shown to be “fair”.

The Constitutional Court, however, has made it clear that affirmative action measures must be understood as asserting the right to substantive equality rather than detracting from it.

[3 Min of Finance and Another v Van Heerden  [2004] 12 BLLR 1181; (2004) ILJ 1593; 2004 (11) BCLR 1125 (CC).]

For the same reason Convention 111 (followed by section 6(2) of the EEA) excludes affirmative action measures from the limiting and
prejudicial ambit of “discrimination”.

10) A final factor is the much-debated opposition among (certain) employers to the alleged “rigidity” of labour legislation and the desire for greater “flexibility”.

From this perspective a more elastic concept of discrimination on prohibited grounds is preferable to the strict prohibition contained in Convention 111. Needless to say, such elasticity is entirely inappropriate in the protection of basic human rights.

11) The danger of allowing employers an open-ended defence based on “rationality”, “fairness” or “justifiability” was illustrated in the case of Woolworths (Pty) Ltd v Whitehead [2000] 6 BLLR 640; (2000) ILJ 571 (LAC) (In this case it appeared to be accepted that an employer may legitimately “take into account” a job applicant’s pregnancy in deciding whether or not to employ her) where Willis JA stated:

“It is not difficult to imagine situations outside of the inherent requirements of a particular job where discrimination would not be unfair.”(At para 123)

Examples of discrimination which a judge or commissioner holding a similar view might conceivably regard as “not unfair” in terms of section 11(1)(b), it is suggested, include the following:

    • i) An employer refuses to employ a job applicant with a young child on the grounds that she is unable to do night work, which would cause inconvenience and place a disproportionate burden on other employees;
    • ii) An employer refuses to employ an HIV-positive domestic worker, who would also be expected to perform child-minding duties, because of fear of infection;
    • iii) An employer refuses to employ a non-South African refugee with a work permit on the ground that the refugee intends returning her home country in due course;
    • iv) A small business refuses to employ a person of a particular race or religion because it would be highly unpopular among its existing clientele;
    • v) A franchise with a particular “branding image” only employs sales assistants who possess particular physical characteristics (e.g. young, blonde, female).

12) Though defences of this nature may or may not succeed, section 11(1)(b) would potentially allow discrimination on grounds which would be prohibited in other countries where Convention 111 has been adopted.

It also opens the door to inconsistent decisions based on the perceptions of individual presiding officers, as is the case at present. Taking questionable decisions on appeal or review may be beyond the means of many victims of discrimination, and any precedent set by such decisions may only be reversed after many years if at all.

In the meantime employers would be free to continue practising forms of discrimination justified by those decisions, contrary to the protection mandated by Convention 111.

13) A very likely effect is that the statutory defence of showing that differentiation is based on the inherent requirements of a job (fn 6 In terms of section 6(2) of the EEA) would become redundant. This is because a case of open-ended “justifiability” would be easier to argue than meeting the objective criteria developed by the courts for establishing the “inherent” requirements of a job. In practice, “justifiable” discrimination would most likely be alleged in those cases where the employer’s decision cannot be justified on the basis of the inherent requirements of a job, thus moving expressly beyond the limits of Convention 111.

[7 It may be added that the open-ended defence available to employers that alleged discrimination was justified by the “inherent requirements of a job” (s 6(2)(b)) allows the courts further flexibility in deciding whether the employer’s conduct was permissible, which is expressly allowed by Convention 111.]

14) Last but not least, enacting legislation in conflict with Convention 111 would expose South Africa to an investigation and a compliance procedure in terms of articles 26 to 34 of the ILO Constitution.

15) It is submitted that such unintended outcomes can be avoided by bringing section 11(1)(b) in line with Convention 111. This could be achieved by amending the paragraph to provide that “such alleged discrimination is justifiable in terms of section 6(2) of this Act.”

16) Given conflicting judgments on the point, it is further submitted that much-needed clarity could be achieved by inserting a definition of “discrimination” in section 1 of the EEA in compliance with the definition in Convention 111. It might read as follows:

“discrimination” means any distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation, excluding any measures taken in terms of section 6(2) of the Act.

Prof Darcy du Toit
on behalf of Bradley Conradie Attorneys, Cape Town
Endorsed by: Prof Nicola Smit
Faculty of Law, University of Johannesburg
Prof Debbie Collier
Faculty of Law, University of Cape Town
Mr Graham Giles
Attorney, publisher of GilesFiles and author
Mr Craig Bosch
Part-time Senior Commissioner, CCMA
19 November 2012