Employment Equity Bill: workshop

Meeting report

PORTFOLIO COMMITTEE ON LABOUR
18 FEBRUARY 1998
EMPLOYMENT EQUITY BILL: WORKSHOP

Documents handed out:
Employment Equity Draft Bill

Introduction
The Workshop was opened by the Chairperson, Mr GG Oliphant who introduced the principal speaker, Lewisa Mbobani, the Director of Equal Opportunities.

Presentation
The heart of the Employment Equity Bill is to develop a society which is familiar with the concept of equality. However the Bill does not seek to create a colorless society as South Africa will always be a multi-cultural society but rather hopes to achieve a recognition and acceptance of our diversity.

Affirmative action is a positive measure intended to correct the wrongs of the past and is distinctly different from measures implemented during the Apartheid era. Apartheid was deliberately calculated to marginalise certain racial groups while affirmative action seeks to equalise the status quo.

There is a high correlation between race, sex and disability in determining whether members of these groups will have a job and what type of job they will have. Hence our focus should remain on employment which is linked to skills. The United States of America has similar regulations. Other countries who also maintain similar policies are Canada, Australia and the United Kingdom. This demonstrates that affirmative action is not necessarily a socialist measure and will not hinder a free-market system.

NOTE: Lewisa Mbobani used the aid of an overhead projector which will be represented in italics. Further comments made by Mr Mbobani in addition to his overheads will be typed in normal font.


GENERAL PHILOSOPHY OF THE BILL

"Co-determination"
Full stakeholder involvement
Employee – driven process
Buy-in and ownership / commitment
Problem-solving
Strategic

The Bill adopts a problem- solving approach whereby Managers and employees are to sit down and solve problems together.

PURPOSE OF THE BILL

Eliminate discrimination in employment.
This is meant to relate directly to the work place.
Implement employment equity.
This refers to measures that can be taken.

APPLICATION OF THE EE BILL

Unfair discrimination : all employers
Employment Equity: designated employers in designated groups
Excludes members of the National Defence Force, South African Secret Service and National Intelligence Agency.

UNFAIR DISCRIMINATION

Grounds
Based on race, sex and gender.
Employment policies or practices
Includes recruitment polices and procedures for assessment etc.
Harassment
Medical Testing
Medical testing should only be conducted where relevant to the job requirements, this includes HIV testing.
Excludes employment equity and measures and inherent requirements
An employer can discriminate in order to achieve equity and because of the inherent nature of the job.

DESIGNATED GROUPS

Black people
This includes Africans, Coloreds and Indians.
Women
No hierarchy to be attached here.
Disability

DESIGNATED EMPLOYERS

Companies with 50 or more employees
Municipalities
Organs of the state designated by the President
Volunteers

EMPLOYER DUTIES

Consult employees
This is essential to the Bill. Consultation with employees can take place through any registered Trade Union or employee representatives.
Conduct analysis and prepare profile
Qualitative measure.
Prepare EE Plan
Implement EE Plan
Report annually to the Department of Labour

POSITIVE MEASURES

Identify and remove barriers.
For example toilet facilities were not provided for women on many mines and it took two years of campaigning to get separate toilet facilities installed.
Diversity
The diversity of the different cultures within the work place should be accounted for in dress codes, music played, canteen food, Christmas presents etc.
Reasonable accommodation
Disabilities should be accounted for in the work place and measures should be adopted to accommodate people.
Affirmative action in appointment and promotion of suitably qualified staff.
Measures to retain, train and develop
Often retaining staff members is not necessarily related to pay. Employees often want responsibilities and ownership of their projects i.e. a real job as opposed to token jobs.

EMPLOYERS ARE NOT OBLIGATED TO:

Implement quotas.
Targets can be changed and are varied according to demographics and the requirements of the job. Companies are often far more qualified to determine realistic targets that can be set.
Appoint persons not qualified
The purpose of the Bill should be to improve standards and not lower standards. It would both insult and undermine the position of the people whose interests were being furthered by the Bill.
Bar persons not from designated groups
The Bill does not wish to discriminate against white males.
Create new jobs
The Bill would be meaningless if ‘token’ jobs were created in order to satisfy statistics.

REPORT

A report must be submitted to the Department of Labour within 18 months of becoming a designated employer.

COMMISSION OF EE

Note that the commission is small in relation to the allocated tasks

Chair and 9 Nedlac nominees
The Nedlac nominees will be selected from a diverse group including representatives from disability groups, government officials and business interests.
Advisory Body
Part-time
Department resources and staff.

The commission will also have to continue research into codes and definitions as the Bill is implemented thus eliminating any grey areas and adapting to any complications which could arise.

DISPUTES

Disputes should be raised with the company first and if no resolution can be made then the case should be referred to the following organisations according to the type of dispute listed below:

Unfair discrimination
CCMA
Labour Court

Employment Equity
CCMA
Arbitration

MONITORING

Employees in the work place are expected to take a large responsibility because this Bill is designed for their benefit.

Employees and Unions
Labour inspectors
Limited number of inspectors.
Director General

ENFORCEMENT

Labour inspectors
- compliance orders
Director General
- Requests information and documents.
- Review employer’s compliance with EE obligations and Bill
- Approve EE plan.
Register of reporting Employers
Eligibility of State tenders
Certificate of compliance.

POWERS OF LABOUR COURT

Fines
Maximum fine is R500,000. Is not calculated according to percentage of profit.
Punitive damages for unfair discrimination
Compliance order
Approve medical testing
Any other order consistent with the Bill

In the USA there are currently 700 people employed to monitor over 250,000 companies which are required to implement a programme of equity.

Questions
Questions where first asked by the members of the committee and then the floor was opened to questions from the public.

Committee Members
With regards to the issue of capacity building, how will standards be determined?
What sort of information do the relevant companies and government departments have to disclose to the commission ?
How rigid is the Department policy in presenting and explaining the Bill to the various party caucuses ? Will representatives be sent to explain the Bill in similar workshops ?
Are the fines meant to be punitive or a deterrent ? What measures have been taken to prevent larger companies from avoiding implementing the equity measures and just paying the fines that are imposed ?
Is this Bill intended to affect the current sporting issues and will coaches be obliged to consider affirmative action policies when they choose team players?
What measures have been considered to insure that companies do implement facilities for the disabled?


One of the consequences of Apartheid legislation was that the allocation of economic resources contributed to the decline of the South African economy. This Bill is intended to promote efficiency in resource allocation by drawing on the intelligence and skills of all the sectors of society thereby ensuring that the appropriate person is employed to each task. On page 8 of the Explanatory Memorandum to the Employment Equity Bill surveys by the World Competitiveness Yearbook (1997), ILO Country Review (1996)and the Breakwater Monitor (1996) are quoted which places ‘South Africa last out of 46 countries with respect to the competitiveness of its workforce’ and that ‘in the workplace the level of under-utilisation of certain race groups, women and people with disabilities contributes to job dissatisfaction.’ It also stands to reason that in an environment where managerial skills are poor the contribution which the designated groups could make would help to stimulate new ideas and concepts in the working environment i.e. new blood means new ideas.

On page 43 of the Bill a definition of qualifications is given which states that ‘ "suitably qualified person" means a person who has the abilities, formal qualifications or relevant experience necessary to perform a particular job.’ Hence formal qualifications (e.g. University degree, diploma or other such certificates) will not necessarily override experience. However the commission needs to debate and clarify areas where this cannot apply because of the inherent nature of the job, e.g. medicine and chartered accounting.

The designated companies and government departments will be required to disclose all information which the Department deems to be appropriate, this includes revealing budgets and profits. In order for the general public to be fully informed it is required that the information contained in the report, which is submitted to the Department, has to be published (page 27 of the Bill). This ensures that investors and employees are able to make informed decisions.

The manner in which the Bill will be explained to party caucuses will have to be debated at a later date.

The fines are considered to be a deterrent rather than a punitive measure, as there is currently a move away from the criminalisation of legislation. The Commission would prefer companies to participate voluntarily in the equity programme - not because of coercion in the form of fines but because such measures are meant to benefit the companies concerned. However two other measures which would help to enforce the Bill are firstly pressure from the public and employees and secondly removal from the approved tender list. Many companies and their subsidiaries rely on tenders for business and profit.

Further consideration has to be given to the difference in definition between ability and potential. The sporting issue and other similar examples (e.g. the clergy which is a ‘calling’) have so far not been considered and the relationships in the sports area will have to be examined in detail. When considering sports, the sports code / inherent nature of the job should be taken into account.

Companies will be responsible for upgrading their facilities to incorporate the needs of the disabled. The speaker highlighted the fact that government departments are some of the most inaccessible workplaces in the country. The member who asked the question pointed out that self regulation has proved to be ineffectual in reality and that perhaps more punitive measures should be incorporated into the Bill.

The forum was opened to the Public
The Chairperson stated that a version of the Employment Equity Bill was available in Braille for the blind. He then invited members of the public to ask their questions:

What are the criteria on which the Department of Labour intends to base its decision?
What capacity does the Department of Labour have to implement these measures?
With the regard to the intention of the Bill to create a society which is inherently tolerant and sympathetic to a multi-cultural environment, will the legislation cease to be necessary at a certain stage or will further legislation have to be implemented at a later date?


The criteria are defined in the Bill and will also take into consideration the demographics of the area. As such no specific targets have been set and it is viewed that the designated companies will have a greater capacity to make intelligent targets.

The Bill introduces a new concept and therefore it is difficult to commit resources - capacity will probably have to be built. Fortunately technology has improved and the use of the internet and networking could make the task ahead easier to manage.

The ideal would be to aim for a review of the legislation at a future date. It is optimistic to think that a tolerant society can be achieved within our lifetime.

The floor was then reopened for any additional questions by the committee:
What if there are no applicants for that particular job?

A company cannot be penalised because no applications have been made by the designated groups however the company concerned will have to supply proof when presenting their report to the Director-General that all efforts have been made to encourage applicants from the designated groups e.g. cross media advertisements, informing disability groups etc. It must also be noted that the Bill can be distorted where the majority of the employees working for a company constituted women, blacks and people with disabilities - the principal aim of the Bill is to create a working environment which is multi-cultural. It was suggested that another target group could be the youth sector considering the current socio-economic problems facing South Africa.

Conclusion
The Chairperson concluded by thanking the committee members and the speaker for their time and contribution and he also welcomed the participation of the public. The public were excused to allow the committee to discuss logistics for future meeting dates.

Committee programme
A date was set for the 10^th March to discuss the Skills Bill.

DP member Mr Leon apologised for his late arrival and explained that because there were only 7 DP representatives he was unable to attend all the meetings but would endeavor to ensure that his assistant attended these meetings and kept him fully informed of progress made. The Chairperson accepted Mr Leon’s apology and stated that he understood Mr Leon’s difficulties and that he appreciated the fact that Mr Leon made every effort to fulfill his duties.