Employment Equity Act amendment unlikely to lower hurdles to women’s place in the workplace

Whilst the Select Committee were scheduled to meet yesterday (23 November) to discuss the proposed amendment of the Employment Equity Bill, experts believe that the amendments will do little to improve women’s representation in paid employment and risks being a “tick box exercise” if not accompanied by a change in society’s perceptions of women in the workplace.

The rapid loss of jobs by women during the Covid-19 pandemic indicates that society still sees women’s paid employment as less important than their domestic role, and it will take more than legislation to change that perception, according to a research article recently published in the Women’s Report by the University of Stellenbosch Business School (USB).[i]

“In these circumstances, the success of the Employment Equity Amendment Bill as it stands is doubtful. What South Africa needs is a growing economy, which naturally creates more employment opportunities, and a genuine openness towards women’s empowerment and inclusion in the workplace,” said co-author Abigail Butcher, employment associate at Cliffe Dekker Hofmeyr.

Introduced by Labour & Employment Minister Thulas Nxesi in 2020, the Bill is due for consideration by the National Assembly before the end of the 2021 term and it is anticipated that Parliamentary approval processes will be complete by March 2022.

Controversially, the Bill empowers the Minister to set sector-specific numerical targets for employment of designated groups (Black people, women, people with disabilities) at all occupational levels. Employers not complying with the targets will be excluded from doing business with the State and are liable for fines starting at R1.5m.

Nxesi has said that “self-regulation by employers to achieve the objectives of employment equity has not worked” and that the Bill is part of a “more aggressive strategy including a review of legislation, … (and) is a catalyst to expedite transformation in the workplace”. [ii]

However, Butcher said that while legislation has a role to play in driving workplace gender transformation, the Bill in its current form was unlikely to promote women’s employment across the board.

Women’s share of employment since the introduction of legislative reform to promote equitable employment of previously disadvantaged groups increased by just six percentage points, from 38% to 44%, in the 25 years since 1994, she said.

“The South African labour market is still socially inequitable, as women are under-represented in better-paying occupations and sectors, often those that are male-dominated, and over-represented in low-paid occupations and sectors, with domestic work accounting for a large portion of this category,” Butcher said.

Black women in particular are significantly under-represented: although they make up 40.7% of the economically active population (EAP), they are outnumbered by white women at top and senior management level, with their employment heavily concentrated in skilled, semi-skilled and unskilled jobs.[iii]

Meanwhile, the unemployment rate of Black women, at 41%, is the highest of any group.[iv]

“Ideally then, the proposed numerical targets would be aimed at increasing the participation of Black women in paid work but, in relation to the Minister’s discretion in setting numerical targets, it is not clear whether compliance in respect of race will be prioritised over gender.”

“Workplace implementation is likely to prioritise individual diversity categories such as race before the intersection of gender with race. This uncertainty makes it difficult to say that the Bill is a definite win for women’s representation in the workplace,” Butcher said.

She said that the case of Australia – where increasingly strict legislation enforcing gender equality in the workplace had not showed significant results in participation or closing the gender pay gap, together with “concerning statistics” on workplace sexual harassment – “makes a case for reduced efficacy of legislation where societal transformation is lacking”.

By contrast, she said, increased participation of women in the Malaysian economy had been driven by the introduction of socio-economic policies which created increased job opportunities for both women and men.

“The increase in female employment coincided with a decline in the experience of poverty in Malaysian households because, amongst other reasons, many had become dual-income households.

“The lesson from the Malaysian approach is that enhanced representation can only be achieved once a greater portion of the workforce has access to paid work, which would require effective economic policy to address unemployment and the socio-economic conditions of the poorest populations, which in South Africa are made up mainly of historically disadvantaged individuals.”

Butcher said it was concerning that the Bill’s proposed exemption of smaller companies employing fewer than 50 people from compliance with employment equity targets – viewed positively by some as reducing the burden of regulatory compliance on small businesses – will adversely affect the advancement of women in small, medium and micro enterprises (SMMEs).

In the article “Employment Equity Amendment Bill – A route to seeing more women in paid work?”, Butcher and colleagues, Cliffe Dekker Hofmeyr employment law director Prof Hugo Pienaar and associate Asma Cachalia, argue that a lack of clarity on the Minister’s discretion to set sector-specific numerical targets will likely result in court challenges.

“The proposed amendment does not set out the parameters for the Minister’s exercise of his discretion or the factors which must be considered, other than consultation with the relevant sectors. It is not clear whether geographic location and availability of skills will be taken into account. Due to this lack of clarity, the way the Minister exercises this discretion has the potential to be challenged in court.

“Potentially, the more prescriptive the Minister becomes on numerical targets, the closer we move to legislation that enforces targets – effectively a quota system, which is unconstitutional,” Butcher said.

About the Women’s Report:
The Women’s Report is an annual focus on the life and work of women in South Africa, providing thought-provoking, evidence-driven insights. The report, sponsored by the University of Stellenbosch Business School (USB) and distributed in partnership with the South African Board for People Practices (SABPP), is available to download from www.womensreport.africa

REFERENCES
[i] Unless otherwise stated, all figures and information in this release are drawn from the mentioned article:
Pienaar, H., Butcher, A. & Cachalia, A. (2021). Employment Equity Amendment Bill – A route to seeing more women in paid work? In Women’s Report 2021. https://womensreport.africa/employment-equity-amendment-bill-a-route-to-seeing-more-women-in-paid-work/

[ii] Speech by Labour & Employment Minister Thulas Nxesi, 25 June 2021, at the launch of the Commission for Employment Equity (CEE) Annual Report 2021-21. http://www.labour.gov.za/minister-nxesi-calls-on-parliament-to-expedite-eeamendments-as-report-shows-little-progress-in-transformation

[iii] Commission for Employment Equity Annual Report 2020-21. June 2021. Available at https://www.polity.org.za/article/21st-commission-for-employment-equity-annual-report-2020-2021-2021-07-05
(2020: Top management – women 24.9% of which Black females 11.3%; Senior management – women 35.7% of which Black women 17.1%.)

[iv] Stats SA. South African labour market is more favourable to men than women. Data story, 24 August 2021. http://www.statssa.gov.za/?p=14606