1. Submission on Clause 6 of the Employment Equity Amendment Bill of 2012 and its compliance with ILO Convention 111 of 1958 By Prof D du Toit on behalf of Bradley Conradie Attorneys

2. The Employment Equity Act (EEA) was enacted to give effect to ILO Convention 111of 1958 and must be interpreted “in compliance with” the Convention. The EE Amendment Bill of 2012 sets out to “ The Employment Equity Act (EEA) was enacted to give effect to ILO Convention 111of 1958 and must be interpreted “in compliance with” the Convention. The EE Amendment Bill of 2012 sets out to “give effect to obligations incurred by the Republic as a member state of the International Labour Organisation” 1-3

3. What does convention 111 require? 1-3

4. Convention 111 requires member states to eliminate ALL discrimination based on prohibited grounds (listed or unlisted) “D Convention 111 requires member states to eliminate ALL discrimination based on prohibited grounds (listed or unlisted) “Discrimination” means “any distinction, exclusion or preference” based on a prohibited ground “which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation” 4 - 6

5. Convention 111 lists three form of differentiation which are “not discrimination”: These are the only exceptions permitted to accommodate employers’ and state needs to exclude/prefer employees on listed grounds Convention 111 lists three form of differentiation which are “not discrimination”:  measures based on “inherent requirements of a particular job”;  measures in interests of state security;  affirmative action measures These are the only exceptions permitted to accommodate employers’ and state needs to exclude/prefer employees on listed grounds 7 - 8

6. How does the EEA give effect to Convention 111? 7 - 8

7. Section 6 of the EEA states: “No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender (etc)…” This complies with the Convention by creating an open-ended list of “grounds” on which discrimination is “unfair”, and therefore prohibited 9 - 10

8. In some cases the term “unfair” has been interpreted as meaning that Parliament intended to create scope for “fair” discrimination on prohibited grounds. This interpretation is clearly in conflict with the Convention and also in conflict with section 3(d) of the EEA. 11

9. Section 6(2) states : “It is not unfair discrimination to— (a)take affirmative action measures consistent with the purpose of this Act; or (b)distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.” This is in compliance with the Convention. 12 - 13

10. The EEA does not define “discrimination”. The EEA does not define “discrimination”. The courts have in some cases interpreted it as meaning the same as “mere differentiation”, and in other cases as “treating one employee worse than another”. The latter interpretation is in compliance with Convention 111. 14

11. What is the effect of the amendments to section 11 of the EEA proposed by clause 6 of the Bill? 14

12. The proposed new section 11(1)(a) is in compliance with Convention 111. The proposed new section 11(1)(a) is in compliance with Convention 111. Since discrimination on a prohibited ground is prohibited in terms of the Convention, the employer’s only defence can be that the alleged discrimination was not on a prohibited ground. (If it was based on affirmative action or an inherent requirement of the job, it would not be “discrimination”.) 15 - 16

13. The proposed new section 11(1)(b) is in conflict with the Convention. The proposed new section 11(1)(b) is in conflict with the Convention. It would allow discrimination on a prohibited ground to be justified of grounds of “rationality” and “fairness” or an open-ended notion of “justifiability”. This would give judges or CCMA commissioners an open-ended discretion to allow discrimination on prohibited grounds. 17 - 18

14. What is the rationale for the proposed new section 11(1)(b)? 17 - 18

15. The reason for the amendment to s 11 is that it “should be consistent with the approach in respect of this issue in section 13 of the Equality Act” The reason for the amendment to s 11 is that it “should be consistent with the approach in respect of this issue in section 13 of the Equality Act” This is inappropriate, because – (1) legally, it creates a conflict between the EEA and Convention 111, and (2) practically, the EEA and the Equality Act apply in different spheres 19 - 22

16. The courts have in some cases (incorrectly) applied the broad constitutional test in employment discrimination matters. The courts have in some cases (incorrectly) applied the broad constitutional test in employment discrimination matters. This is inappropriate because it this test is about the exercise of state power, not the conduct of private employers. It is also inappropriate because it means that the EEA (interpreted in compliance with Convention 111) is being bypassed – which is impermissable. 23 - 24

17. The courts have in some cases (incorrectly) applied the broad constitutional test in employment discrimination matters. The courts have in some cases (incorrectly) applied the broad constitutional test in employment discrimination matters. This is inappropriate because it this test is about the exercise of state power, not the conduct of private employers. It is also inappropriate because it means that the EEA (interpreted in compliance with Convention 111) is being bypassed – which is impermissable. 23 - 24

18. What would be the consequences of enacting the proposed section 11(1)(b) in its present form? 23 - 24

19. It would subvert the purposes of Convention 111 and the EEA by allowing employers to persuade commissioners or judges that it is permissible to discriminate against employees on prohibited grounds It would subvert the purposes of Convention 111 and the EEA by allowing employers to persuade commissioners or judges that it is permissible to discriminate against employees on prohibited grounds - e.g., future pregnancy, sexual harassment… The poorest complainants are likely to face the greatest risk. 25 - 29

20. It would create the prospect of inconsistent decisions, based on decision-makers’ personal perceptions of “justifiability”, thus creating legal uncertainty. It could further narrow the scope for affirmative action. Section 6(2)(b) of the EEA is likely to become redundant. 30 - 32

21. What is the rationale for the term “unfair” discrimination? 30 - 32

22. South Africa is the only country to use the term “unfair” discrimination. It was introduced under apartheid to distinguish between measures justified or not justified by apartheid laws. In 1993 it was used in the new Constitution to distinguish “negative discrimination” from “mere differentiation”. 34 - 35

23. “Unfair” thus serves to describe all prohibited grounds of discrimination (listed and unlisted) This is consistent with “automatically unfair dismissal” in terms of s 187 of the LRA Convention 111 means that discrimination on a prohibited ground can never be ‘fair’. 36 - 38

24. Conclusion

25. The new section 11(1) of the EEA can be brought in line with Convention 111 by requiring the employer against whom the allegation is made to prove that - The new section 11(1) of the EEA can be brought in line with Convention 111 by requiring the employer against whom the allegation is made to prove that - “(a) such discrimination did not take place as alleged; or “(b) such alleged discrimination is justifiable in terms of section 6(2) of this Act.” 39

26. It is also submitted the meaning of “discrimination” can be brought in line with Convention 111 by defining it as “ It is also submitted the meaning of “discrimination” can be brought in line with Convention 111 by defining it as “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” 40

27. It is submitted that such amendments would also be in compliance with the Constitution. Legislation is unconstitutional if it gives a basic right less than the minimum protection required by the Constitution. The proposed amendments would increase existing protection against discrimination. 41 - 42