Employment Equity & Child Labour Legislation implementation: Labour Department briefing

JOINT MONITORING COMMITTEE ON IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF CHILDREN, YOUTH AND DISABLED PERONS
21 September 2007
EMPLOYMENT EQUITY & CHILD LABOUR LEGISLATION IMPLEMENTATION: LABOUR DEPARTMENT BRIEFING

Chairperson: Ms W Newhoudt-Druchen (ANC)

Documents handed out:
Department of Labour briefing

Audio recording of meeting

SUMMARY
The Committee was briefed by the Department of Labour on the challenges facing them in implementing Employment Equity quotas for disabled people across the workplace. The issue of child labour was also addressed. The Department of Labour admitted that the implementation of legislation was problematic. The Committee accepted that this was a challenge but felt that the Department of Labour needed to more vigorously pursue Employment Equity Act implementation.

MINUTES
The Chairperson briefly outlined the programme for of the Committee for the next term and then . handed over to the Department of Labour (DoL).

Mr Thembinkosi Mkalipi (DoL Senior Executive Manager) apologised for the Director General’s absence due to prior commitments. The Department’s presentation looked at the provisions of the Basic Conditions of Employment Act, the Employment Equity Act and the Skills Development Act and the effect of these laws on children and people with disabilities.

The Basic Conditions of Employment Act (BCEA) prohibited the employment of children under the age of 15. The Act did not prohibit children from performing work at home as long as it did not negatively impact on their emotional well-being, education and health. Work was differentiated from labour, which was prohibited for under 15 year olds. Children between the ages of 15 and 17 were allowed to be employed provided it did not have any of the aforementioned negative impacts. He noted that because they were dealing with children, it was an interdepartmental issue that included Social Services in particular. He outlined the role of the Child Labour Programme of Action (CLPA) and noted some of its achievements to date. He also noted the Children in Performing Arts (CIPA) sectoral determination which determines the conditions of employment for this sector and requires applications for permits.

On the matter of the Employment Equity Act, he explained how it applied to persons with disabilities. The key elements of the Technical Assistance Guidelines (TAG) and the relevant Code of Good Practice were outlined as these clearly explained what was required of employers. Both the TAG and the Code were made available in multi-accessible formats (including audiotape and Braille). The Department’s Section 43 review of six companies in 2006 had shown that compliance in terms of the disabled component was minimal. The Section 43 review in 2007/08 would look at 33 JSE listed companies. The review allowed them to assess the situation on the ground and recommend changes that needed to be made. Reference was also made to the twelve Sheltered Employment factories that the Department managed that provided employment for 1100 people with disabilities.

Mr B Mogadime, Acting Executive Manager: Sector Education and Training Authority (SETA) Performance Management, reviewed the Skills Development Act noting that the National Skills Development Strategy (NSDS) set a learning programme target of 4% for people with disabilities. He looked at the NSDS results for people with disabilities as well as for youths. He then provided information on the work of the Umsobomvu Youth Fund and some of their recent achievements in promoting youth.

Discussion

Mr S Marais (DA) stated that the issue of the disabled was close to his heart. He had found a distinct absence of disabled individuals within government and stressed that on paper these strategies seemed fantastic but that the actual implementation was somewhat lacking. Another point of contention was that he found disabled persons occupying mainly low-level positions. He asked what the DoL was doing to transfer what was being said into reality. He asked for copies of the TAG and Disability Code, as well as a list of the seminars provided and who they were targeted at and a definition of disability.

Mr Mkalipi replied that disabled people needed to be employed in a meaningful sense, not as token employees in order to show EEA compliance. He stressed that disability was mainstreamed to eliminate unfair discrimination. The strategy was designed to utilise skills, and not just to represent quotas. His presentation frankly acknowledged the shortcomings of actual employment realities and that the whole process was to redress this. He referred Mr Marais to the DoL website for copies of both the TAG and the Code.

Mr M Moss (ANC) stated that the presentation was not complete enough. Government departments seem to have different age criteria for defining a child and this caused confusion. He stressed the need for this to be resolved. He stated that CIPA gave companies permission to employ children, but asked whether minimum wages were set in order to safeguard exploitation. In terms of the EEA it was important to have some form of uniformity in the designation of disabled persons. He asked how one would go about setting up a Sheltered Factory.

Mr Mkalipi replied that legislators had determined the laws that influenced these criteria and he agreed that these needed to be amended to redress this confusion. He reiterated that children over the age the 15 could work as long as it was not detrimental. The work in the performing arts was similar to play rather than work. The company needed to demonstrate that the work was not too strenuous and that parental supervision was in effect. In terms of wages, government had not yet set minimum wages for this sector so it was impossible to enforce non-existent regulations. He stated that where sectoral wages were set, they could ensure compliance. However the BCEA essentially determined working conditions rather than wages. He reiterated that the main concern about child work was that it should not be injurious in any way.

Mr Moss raised the issue of individuals who were injured at work and were awaiting aid devices. In some cases individuals had to spend an excessive time in hospital whilst waiting for these devices to be supplied by the DoL and this incurred costs in excess of that the device cost.

Mr Mkalipi replied that he would refer the question about device distribution to the relevant organ and provide feedback on the problem.

Ms N Mazibuko (ANC) asked whether the DoL made surprise visits to farms in order to determine whether child labour was being utilised. She questioned what the DoL did in order to protect the rights of workers in unregulated spheres such as prostitution. She asked if government only established or if they constantly funded the sheltered employment factories. She asked how the issue of wages impacted on disability grants. Ms Mazibuko asked what plans were underway to do away with this engendered dependency syndrome in order to allow for normal work. She asked the Department if it had a unit that dealt with the issue of sexual harassment.

Mr Mkalipi replied that surprise visits were in effect and that farmers in the Western Cape had been taken to court. He stressed that labour legislation was a product of agreement between the employers and the employees and that they had to rely on their social partners to uphold the law. It was very difficult to regulate industries that were still considered illegal such as prostitution. The sheltered factories were funded entirely by the government and were non-profit. He added that non-government organisations (NGOs) did run additional employment facilities that enjoyed partial government funding. He stated that in both cases the BCEA applied unless the sector concerned had a bargaining council. He stated that the issue of sexual harassment had been covered by the presentation.

Mr N Singh (Manager – DoL) added that a developmental approach to employment was being inculcated in order to ensure that disabled people were represented in positions at higher levels for the right reasons. However severely disabled people sometimes could not perform in higher level jobs and that this contributed to a larger proportion of low level employees. He added that sexual harassment was governed by legislation and that there was little that the DoL could do.

The Chairperson asked if those individuals employed in government sheltered factories enjoyed higher wages than those employed by NGOs, and whether NGO employment consisted of minimal pay merely supplementing the government disability grant.

Mr Mkalipi replied that these factories had normal factory pay grades that differed from palce to place. In some cases people were earning much more but overall wages were never lower than the grant amount. He states that a study of initiating a sectoral determination for NGO welfare employment was underway. 

Mr A Madella (ANC) stressed that sheltered employees did produce value added products of worth and that no contingency for pension plans were made for the individuals employed. He requested that these be implemented. The general impression he got was that individuals employed in the factories were told to be grateful for work and subsequently earned a salary not much more than their disability grants. This sort of exploitation needed to cease.  The DoL was supposed to enforce the EEA and it was incongruous that no disabled person was present in their delegation. He suggested that perhaps the DoL was falling short of its own 2% target.

Mr Singh pointed out that the DoL was sitting at 2.8% and they had recently set a new target of 5%. Cabinet had reaffirmed government’s intent to reach the 2% target.

Ms Mazibuko asked the DoL to provide statistics on their employees and for a list of sheltered employment ventures that were partly subsidised by government.

Mr Mkalipi replied that this would be done.

Mr Moss asked for the total number of disabled persons and the percentage they comprised in the DoL and government as a whole. He wondered when they would reach their targets. He requested the success rate for job placement of individuals who had completed SETA learnerships.

Mr Mkalipi replied that the target was not broken down in terms of levels and that government in total was at 1.5 percent. He stated that their job was to ensure government and private sector compliance.

The Chairperson stated that she had grown up with deaf people who worked in “normal” factories. She asked why sheltered employment facilities were referred to as factories and whether child modelling fell under the aegis of CIPA.

Mr Marais asked how they intended to make the legislation a reality.

Mr Mkalipi stated that implementation was the main problem facing the Department and that they would welcome any assistance they could get.

Mr Madella stated that he was pleased with the DoL target of 5% but felt that it should have an accelerated programme in place to reach this target.

Ms Mazibuko reiterated the need to ensure negotiated sectoral determinations.

The meeting was adjourned.