Promotion of Equality & Prevention of Unfair Discrimination Bill [B57-99]
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| Part C: Employment
The matters raised in this section and the issue of equality in the workplace are already regulated in the Employment Equity Act. The inclusion of this sector in the Bill creates an overlapping jurisdiction. BSA objects in the strongest terms to the inclusion of this part in the Bill. Some additional problems are listed below, as motivation for removing this Part in its totality. Section 13: Definitions The question has to be asked why the definition of employment as used in this legislation does not correlate to that used in labour legislation. The definition of “employment” in Section 13(i)(b) is very broad and includes “contracting work to another person”. The exact meaning of this is not clear. For instance, does this mean that a builder who contracts work to a plumber would be the employer of the person to whom he or she has given the contract? Does this also include independent contractors? If this is the case, independent contractors, who are excluded from all labour legislation, could use this Bill to bring action against the person who has awarded the contract. Discrimination in this regard is already covered by Part I, and to duplicate it here causes confusion. The fact that the employment related terms in this Bill and in the EEA do not correlate will result in expensive confusion and lead to unnecessary forum shopping. Section 13(ii)(a) Essentially, this refers to job applicants as well as employees. This is already covered in the Employment Equity Act. To say “any ground that impairs employment opportunities” is extremely wide. It could refer to the fact that labour laws inhibit the employment opportunities of some people, or that a company does not have vacancies, although this certainly could not have been the intention. Section 13(ii)(b) This definition refers to persons who were “historically denied such opportunities by law or practice”. This is a very broad phrase and such persons are not defined in the Bill. Who will be included in such a category? To include “failure to remove any barriers” is extremely wide. It could include that employers have to rectify educational backlogs. Section 14: Prohibition of Unfair Discrimination in Employment This Section refers to “unreasonable” discrimination. This is a new concept and is not defined in the Bill. What criteria will be used to determine whether discrimination is “unreasonable” or not? Sections 14(a) The reference to “potential applicants” is unclear. Does this include any person, notwithstanding age, sex, disability and education? A new concept of unjustly disadvantaging / unjustly excluding is introduced in paragraphs a, d and e. This will cause tremendous confusion and legal uncertainty. The terminology "unfair" discrimination should be used consistently. Section 14(b) The Section refers to “creating informal barriers to equal access to employment opportunities”. This is extremely vague and ambiguous. What would such “informal barriers” be? What criteria will be used to decide whether such “informal barriers” exist? Section 14(e) What does “contracting opportunities” mean? This issue is addressed to some degree by section 53 of the Employment Equity Act which regulates the issue of State Contracts. This Section impacts on the contractual freedom of persons and institutions in the world of commerce. This matter is already covered by Part 1 and should not be duplicated. Section 14(f) This Section refers to “unequal pay for work of equal value”. What criteria will be used to determine whether work is of “equal value”? Courts, particularly in the United Kingdom, have been loath to determine whether or not a job done by a women is “of equal value” to the totally different job of a man. It is questioned whether this basis of comparison is feasible. A more reasonable formulation might be to refer to “equivalent work”, with an appropriate definition being given. Section 14(g) This provision is vague and ambiguous. The concept of “reasonable” is not defined. The definition given for “reasonable accommodation” refers to “any modification, adjustment, change or action…”. What criteria will be used to determine whether or not the accommodation required is reasonable or not? “Reasonable accommodation” is an affirmative action measure in the Employment Equity Act. Now it is defined as discrimination. This is extremely confusing. OVERALL RECOMMENDATION ON PART C: It is recommended that Part C be removed in its entirety for the reasons stated above, and that the Bill specifically exclude all employment related issues. Parts D to L The member organisations of Business South Africa, where appropriate, may in their own right submit detailed comments on the Sections of the Bill dealing with Education, Health Care, Accommodation, Land and Property, Insurance, Pensions, Goods, Services and Facilities, Associations and Partnerships, Clubs and Sports and Professions. Notwithstanding this, some general comments are given below on some of these Sections. In particular, BSA comments on the Sections dealing with Insurance and Banking because of the dire and potentially disastrous impact of the provisions of the Bill on these sectors. Part D (Sections 16, 17 and 18): Education Section 17(g) The wording of this Section is extremely ambiguous. Would a school, for instance, be forced to provide instruction in sign language if a single deaf student wished to enrol and be properly educated? While the sentiments underlying the Section may be laudable, it is difficult to see how it can reasonably be given practical effect, especially taking into account the fact that in the Minister of Education’s words, the school system in South Africa is already in a state of crisis.
The proposed provisions, which in effect will compel medical institutions and practitioners to ensure that each and every person is provided with services necessary for his or her complete physical, mental and social well-being, notwithstanding the person’s ability to pay for any of the services, are not realistic. These provisions could only be given effect in an ideal society. In reality, economic and commercial realities inherent to the provision of medical services must play a role. This view has been confirmed by the High Court in the matter of Soobramoney v Minister of Health, Kwazulu-Natal 1998(1) SA 430(D). Regarding the ambit and meaning of Sections 27(2) and (3) of the Constitution the Court held, inter alia, that “It could surely not have been the intention of the Legislature that irrespective of costs and whether or not funds were available the persons requiring emergency medical treatment had to receive such treatment”. It also appears that the Bill does not take cognisance of the fundamental principles underlying insurance. Section 20(2)(b) effectively prohibits an insurer from taking cognisance of any grounds included in the prohibited grounds for purpose of assessing its risk and the premiums payable. Effectively, this will mean that insurers will no longer be able to offer health insurance policies. The provisions of Sections 20(2)(c) and (d) will effectively also terminate the existence of Medical Aid Funds (already regulated by the Medical Schemes Act) as medical schemes’ viability, as in the case of health insurance, requires the payment of contributions and the imposition of sub-limits. No distinction is made between private, public or individual providers of health care or their respective spheres of responsibility, with the consequence that all providers become responsible for "any person", which is untenable. In its current form, even the State's health care services would be in breach of most of the provisions. Recommendation: The Medical Schemes Act more than adequately addresses the concerns of the drafters of the Bill, and this Bill should not attempt to duplicate these complex provisions in a simplistic manner. Part F (Sections 22,23 and 24): Accommodation, Land and Property The provisions of these Sections in effect entitle any person to any accommodation, notwithstanding their income and also prohibit the eviction of any tenant, due to the non-payment of rental, if the tenant has a lack of income or resources. It is to be noted that Section 26 of the Constitution, which deals with the right to have access to adequate housing, only requires the State to take “reasonable…measures, within its available resources, to achieve the progressive realisation of this right”. The Bill should not envisage legislation that places more onerous obligations on private institutions and individuals. Section 23(d) is so ambiguous and vague that it could, for instance, mean that a university would have to provide accessible accommodation for the aged in student hostels. Section 23(e) is a very broad formulation that could have far reaching consequences. It will also be difficult to determine when a person will be deemed to be obstructing tenure security, access to land and land reform. Part G (Sections 25, 26 and 27): Insurance The most fundamental basis of insurance is that of the transfer of risk. The insurer adopts that risk through analysis of its chances of suffering loss and by spreading the risk among groups of the insured. To prevent insurance company collapses, which would have a severe impact on the economy, a company needs to practice proper underwriting criteria. To do this, a company must correctly and as accurately as possible give consideration to risk factors which will determine its chances of paying claims. Risk factors that need to be taken into consideration on accident policies, for example, motor policies, are issues such as the age of the driver since older drivers are more experienced and qualified and less likely to have an accident than a twenty one year old. The area of residence will also be an issue since according to national statistics, some areas are more prone to flooding, for example, than others. Since many of the risk factors taken into consideration by insurers, such as age and disability, are listed under the prohibited grounds in the Bill, it is clear that some of the practices used will have to be defended as “justifiable”, as indeed they are. At present only approximately thirty-five percent of people are insured in the short-term market. One of the reasons for this is affordability, a matter currently being addressed by the industry to make insurance more affordable for persons for whom it previously was beyond reach. It is, therefore, important that all measures be taken to prevent additional costs being added to the price of insurance. The Bill will add unnecessarily to the cost of insurance by not allowing companies to practice proper underwriting principles or by forcing the industry to spend great amounts of time and money proving that it cannot accommodate the persons affected by the differentiation without “unjustifiable hardship”. The Bill will therefore negate its own purpose. Insurance will become less accessible to even more people, becoming affordable only for the really wealthy, resulting in greater discrimination and inequality. It is not believed that this is the intention of the Bill, though it most certainly will be the result. Recommendation: The Bill should allow differentiation on objective and reasonable grounds, specifically actuarially and statistically based considerations. Other laws applicable to the insurance industry already prevent discrimination against policy holders on grounds that are not actuarially sound. Part H (Sections 28, 29 and 30): Pensions This part effectively entitles any person to join any pension fund or provident fund, notwithstanding “employment status”. That is, despite the fact that such a person is not and never has been in the employ of the employer who set up the fund. The word “unfair” should be added. Part I (Sections 31, 32 and 33): Goods, Services and Facilities In terms of the definition given in Section 31, “services” includes “services relating to banking and the provision of grants, loans, credit or finance”. The economy and financial life of a country depends to a large extent on theviability and soundness of its banking system. In a market-based economy,banks accept deposits, which are expected to be repaid in full, either ondemand or at their due term. These deposits enable banks to play a majorrole in the allocation of financial resources, through intermediationbetween depositors of surplus funds and would be borrowers who requirefunds. Intermediation can only be effective if banks are able to make regularsound judgements, based on objective commercial principles and criteria,about the ability of various borrowers to repay loans extended to them. Inorder to enhance the quality of such judgements, sound banking practicerequires banks to: ·develop banking products and services for appropriate customers,markets and segments; ·set up credit scoring systems; ·develop well defined risks management systems, structures andprocedures; ·develop lending criteria and appropriate and effective creditcontrol mechanisms; and ·set up information databases on their customers. The appropriate use of these and other sound banking tools and mechanismsremoves bias and prejudice in the banking system and ensures that choices onservices, customers and products are made solely on objective commercialprinciples and criteria. The banking industry in its Code of BankingPractice (effective from 3 April 2000), which has been negotiated withconsumer bodies and the Departments of Finance and Trade and Industry,already commits banks to ensuring that their customers are not discriminatedagainst on the basis of race, religion, age, pregnancy, marital status, sex,gender, sexual orientation, ethnic or social origin, disability, colour,conscience, belief, culture, language and birth. These factors will onlybecome relevant if they have a commercial implication or in respect ofspecial product or service offering designed for all members of a particulartarget market group. The Bill as is currently formulated would preclude banks from using appropriate systems and mechanisms to arrive at sound judgements on the provision of banking services and products to appropriate customers, markets and segments, based on objective commercial principles and criteria. We emphasise, and reiterate, our full support for the outlawing of discrimination in the provision of banking services and products, but we believe that the Bill should not remove a bank's prerogative to use its staff's expertise and experience and other appropriate tools, to make proper commercially-based choices about its customers, services and products. The Bill should therefore be amended to provide a defence for credit criteria, products and services that are based and applied solely on commercial principles and criteria. It is therefore, our submission that the "Defence to claim unfairdiscrimination" in Chapter 3, Section 43, should be broadened to include inSection 43 (2) which deals with factors to be taken to account in decidingwhether the act or omission is reasonable and justifiable in thecircumstances: "The application of objective commercial principles andcriteria in selling or providing goods, services and facilities". BSA believes that this amendment will not impact negatively on the outlawingof discrimination and prejudice, while allowing banks to use appropriatetools and mechanisms to make the right choices about their customers,services and products. These Sections are also particularly problematic for the broader business sector. The provision of goods and services in a market economy is subject to the economic laws of supply and demand and the legal laws of contract. Price setting, for example, is subject to numerous variables such as volumes, delivery times, quality, discount policies, payment terms, etc. It is totally impractical that these purely commercial aspects be regulated in the manner set out in Section 32 of the Bill. Part J (Sections 34, 35 and 36): Associations and Partnerships The provisions of these Sections in effect prohibit professional bodies, such as the Medical and Dental Council, from prescribing educational standards. In particular, Sections 34(2)(c) and (d) militate against the adoption of a “fit and proper concept” and of disciplinary measures. Section 35(1) effectively prevents decision-making in partnerships. This is contrary to the rights to freedom of association and the property rights as regulated in the Constitution. Section 35(1) is also unrealistic. Recommendation: Partners should be able to decide among themselves who the co-partners will be, for example, whether or not it should only be a family business. Sections 37, 38 and 39: Clubs and Sport These Sections appear to contravene the constitutional right of freedom of association as associations and clubs, by their nature, direct membership at selected groups. It is also common practice, world-wide, for associations to have different classes of membership with different benefit structures and for certain services to be provided on a user-charge basis. Section 43: Defence to Claim of Unfair Discrimination Only one defence is given in Section 43(1), namely, “reasonable and justifiable in the circumstances”. In terms of Section 43(3), the defence will only exist if it is established that the person cannot be accommodated without “unjustifiable hardship”. “Unjustifiable hardship” cannot be the only measure for determining whether an act or omission is “reasonable and justifiable”. The factors mentioned in (2) are sufficient to determine “reasonable and justifiable” and should not be complicated by adding a further test of unjustifiable hardship. Section 43(4) sets out the criteria to determine “unjustifiable hardship”. The subsection specifically lists five criteria for determining “unjustifiable hardship”. Some of these criteria are extremely vague, for example, “the effect of the disadvantage suffered by the person unfairly discriminated against”. How must this be determined? Who will determine this? It will also be determined by the perceptions and reaction of the person who has allegedly been discriminated against. It makes this criterion subject to subjective perceptions: something which is to be avoided in legislation of any nature. The criterion “any plan of action” in Section 43(4)(e) is extremely vague. What does this mean? Recommendation: Subsections 43(3) and (4) should be deleted. As indicated previously in the comments on Part I, the "Defence to claim unfairdiscrimination" in Section 43 should be broadened. Recommendation: Include the following as an additional provision inSection 43(2): "The application of objective commercial principles andcriteria in selling or providing goods, services and facilities". Section 45: Burden of Proof Section 45 of the Bill is particularly problematic. The section shifts the burden of proof onto the respondent. BSA accepts that this is not new and that certain provisions of the Labour Relations Act and the Employment Equity Act do likewise. It should be noted, however, that in the workplace a special relationship in a particular setting exists and provision is made for an attempt at dispute resolution before a case can be brought before the Commission for Conciliation, Mediation and Arbitration. This is not the case in respect of this Bill, as it attempts to regulate every aspect of society. It is also particularly problematic in two other respects, i.e. the fact that the failure to implement affirmative action will also be regarded as discrimination, and that the only defence is that accommodating the affected person or persons would have resulted in “unjustifiable hardship”, without reference to fairness. The words “violation of the right to dignity” in Section 45(2) are unclear. Recommendation: The burden of proof should not be shifted. Section 46: Institution of Proceedings in Terms of or Under Act Section 46(1)(a) This power is too wide and may lead to abuse. If a court does not want to deal with an issue, it can refer it somewhere else. The parties should be able to object and argue why it should be kept in that forum.
This Section does attempt to avoid an overlapping of jurisdiction with the Labour Courts. We do not believe, however, that the confusion and potential overlap in jurisdictions can be solved merely by the inclusion of this clause. The fact that discrimination in employment is dealt with in two separate pieces of legislation will most certainly lead to confusion, abuse and overlap in jurisdictions. Recommendation: All issues relating to the employment relationship should be excluded as they are more than adequately covered by the Employment Equity Act. Section 47(1)(a): Equality Courts Certain practicalities surrounding the use of the Magistrates’ Court and High Court as Equality Courts are not considered. For example, there is no indication of a hierarchy which makes it clear whether a dispute would initially be heard by the Equality Court seated in the Magistrates’ Court and only afterwards allow any one of the parties to appeal to the Equality Court in the High Court. Section 48(2)(e): Powers and Functions of Equality Courts No damages should go to the Human Rights Commission or the Commission for Gender Equality or to other authorities identified in terms of this Bill. The State should utilise the funds to promote the purposes of this Bill. The State can also increase the Human Rights Commission’s budget if necessary. Should the Commissions obtain damages directly, then fiscal discipline relating to these bodies might be compromised. In addition, it could lead to these bodies abusing the legal system to strengthen their financial position. Provision should also be made for relief in the case of frivolous or vexatious actions. This must act as a deterrent for the Human Rights Commission and other Commissions, such as the Commission for Gender Equality, to bring actions frivolously or vexatiously. In such cases, there should be an order for costs. Recommendation: damages should not go to the authorities, such as the Human Rights Commission, but to the person unfairly discriminated against, and provision should be made for relief in the case of frivolous or vexatious actions. Section 51: Promotion of Equality Section 51(1)(d) This Section provides that the State, where appropriate, must enact further legislation that seeks to promote substantive equality. It is reiterated that further legislation is not required. These matters should be addressed by amendments to existing legislation.
This Section directs the State to develop “internal mechanisms” to deal with complaints of discrimination. What do such “internal mechanisms” entail and what will their relationship to the provisions of this Bill be? Section 51(4)(a) It is submitted that if this provision is given effect, there is no need whatsoever to include in this Bill the very specific provisions relating to the sectors referred to in Parts D to L of Chapter 2 of the Bill. Section 53: Implementation of the Act In Section 53(1)(a) it is stated that only “designated” presiding officers may deal with any matter under this Bill. This goes against the very principle of how courts operate and creates the potential for compromising the independence of the judiciary. Judges who are not designated might become stigmatised as persons who are not “committed to the values of equality and human rights”. BSA submits that all judges should be allowed to deal with matters in terms of this Bill. Alternatively a much more inclusive, non-political process should be followed to designate judges and magistrates. Section 53(4) represents an attempt to ensure that High Court Judges and Magistrates operating in Magistrates’ Courts observe the same norms, standards and procedures. This will be difficult to achieve in practice as Judges and Magistrates have different academic qualifications and the ethos in their courts is not the same. 4. Conclusion At no time has BSA been consulted during the process to formulate the legislation, even though the impact of the legislation on the business sector will be both severe and far-reaching. The final version of the Bill was only published for comment in the Government Gazette on 27 October 1999 (this Gazette was only available on 29 October 1999, after the Bill had been tabled in Parliament on 27 October 1999). The deadline for comments from the general public on the Bill is 17 November 1999 and a Joint Ad Hoc Committee of the National Assembly and NCOP will hold hearings on the Bill from 22 to 26 November 1999. BSA reiterates its stance that this over-hasty and untransparent process is not conducive to the passage of good legislation. This matter is far too important to be rushed. The Bill is fundamentally flawed, with far too many ambiguous provisions, and should have been referred to NEDLAC for a thorough process of consultation by the social partners before the Parliamentary process was started. Without detracting from the importance of the other proposals in this submission, BSA reiterates that this Bill should: ·be directed at preventing unfair discrimination, as required in Section 9(4) of the Constitution; ·be of a far more general nature and not define discrimination so as to include the failure to implement affirmative action measures, nor equate unfair discrimination with a failure to implement substantive equality; ·only contain general directives, such as are presently contained in Sections 27 and 51(4) of the Bill, to the Ministers to ensure the promotion of equality; ·exclude all employment related issues; ·allow differentiation on objective actuarially based evidence; ·not prejudice the independence of the judiciary; and ·allow fairness rather than unjustifiable hardship as defence against discrimination.
CENTRE FOR APPLIED LEGAL STUDIES GENDER RESEARCH PROJECT
1. This is a submission of the Gender Research Project at the Centre for Applied Legal Studies, University of the Witwatersrand. The Gender Research Project is a research and advocacy project concerned with gender equality and human rights. Equality has been one of our major areas of research since the inception of the project in 1992. Based on this research, we have carefully considered the Promotion of Equality and Prevention of Unfair Discrimination Bill. This submission is divided into two parts. The first part relates to the general definition, interpretation and application of unfair discrimination and the second looks at various additional issues. 1. Part one is set out as follows: ·Introduction. ·The Equality Jurisprudence of the Constitutional Court. ·A three stage test for unfair discrimination in the Bill. ·How to address race, gender and disability in the Bill. ·Harassment ·Use of terminology – ‘equality’. ‘substantive equality’, ‘discrimination’, ‘unfair discrimination’ ·The Criminal Law Yüklə 1,52 Mb. Dostları ilə paylaş:
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