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ATC231128: Report of the Portfolio Committee on Employment and Labour on the Commission for Gender Equality (CGE) Report on Gender Transformation in the Public and Private Sectors 2022/23; And Progress Report on Transformation in the Public and Private Sectors 2022/23, Dated 22 November 2023

Employment and Labour

Report of the Portfolio Committee on Employment and Labour on the Commission for Gender Equality (CGE) Report on Gender Transformation in the Public and Private Sectors 2022/23; And Progress Report on Transformation in the Public and Private Sectors 2022/23, Dated 22 November 2023

 

The Portfolio Committee on Employment and Labour (“Committee”), having considered the Commission for Gender Equality’s (CGE) Report on Gender Transformation Investigations on 8 November 2023, reports as follows:

 

1. INTRODUCTION

The CGE is one of the six state institutions established in terms of chapter nine of the Constitution of the Republic of South Africa to strengthen constitutional democracy in the Republic. These institutions are independent and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice. These institutions are accountable to the National Assembly and must report on their activities and the performance of their functions to the Assembly at least once a year.

 

The CGE, as part of its mandate, has been undertaking gender transformation hearings in workplaces with a view to stimulate dialogue and commitment to gender transformation in the public and private sectors.

1.1. Mandate of the Committee

Section 55(2) of the Constitution of the Republic of South Africa stipulates that “the National Assembly (NA) must provide for mechanisms (a) to ensure that all executive organs of state in the national sphere of government are accountable to it; and (b) to maintain oversight of (i) national executive authority, including the implementation of the legislation; and (ii) any organ of state.”  Rule 227 of the Rules of the National Assembly (9th edition) provides for mechanisms contemplated in section 55(2) of the Constitution.

The Committee plays an oversight role over the Department of Employment and Labour to monitor progress towards the achievement of the transformation goals, including the implementation of Employment Equity Plans and policies to address gender-based violence (GBV) and related matters.

1.2. Mandate of the Commission for Gender Equality (CGE)

The Commission’s mandate is to promote respect for, and the protection, development and attainment of gender equality. To this end, the Commission for Gender Equality Act, 1996 (Act No. 39 of 1996), as amended, gives the Commission the power to monitor and evaluate policies and practices of organs of State at any level; statutory bodies and functionaries; public bodies and authorities and private businesses, enterprises; research and make any recommendations to Parliament. Furthermore, the CGE receives and investigates complaints of gender discrimination; and conducts public awareness and education on gender equality. The CGE has powers to subpoena and to institute litigation.

1.3. Purpose of the Report

This report aims to account in accordance with Rule 166 of the National Assembly (NA) for the work done by the Committee in considering the CGE Report on Gender Transformation Investigations in the public and private sector as referred to it for consideration in terms of Rule 338 by the Speaker of the National Assembly.

2. SUMMARY OF THE PRESENTATION

2.1. Background

CGE resolved, in line with its mandate, to conduct transformation hearings during the 2022/23 financial year. The Annual Performance Plan for 2022/23 required CGE to conduct transformation hearings on the application, implementation and reviewing employment equity and other transformation legislation in the public and private sectors.

The objectives of the transformation hearings are to assess compliance with employment equity legislation and its policies, assess compliance with other transformation legislation and the related policies, assess the impact of transformation legislation and policies on people with disabilities (PWD), women and other previously disadvantaged people in the public and private sectors.

The CGE identified four entities to partake in the process, namely the Department of Small Business Development (DSBD), the Department of Water and Sanitation (DWS), Clover (Pty) Ltd and Bird & Co (Pty) Ltd. However, Bird & Co was excluded from participation in the hearings because it is not a designated employer.

The findings and recommendations of the hearings for each workplace that was investigated by the Commission are as follows:

2.2. Department of Small Business Development (DSBD)

2.2.1. DSBD Observations and Findings

  • There was over-representation of black men and women throughout the organisation, specifically at the top and senior management levels.
  • CGE noted the budgetary constraints that the DSBD highlighted. Furthermore. CGE noted the intention of the adjustments of the numerical targets to address the representation of the under-represented groups.
  • It noted that the DSBD envisaged that it will consult with DEL to source service providers who will assist with attracting PWD to the DSBD.
  • The DSBD has not implemented its Employment Equity Plan (EEP).
  • The Commission observed that there was a discrepancy in the manner that the DSBD is procuring services. The DSBD indicated that it was experiencing several challenges in the inclusion of gender equality practices in its procurement cycle.
  • The organisational policies submitted by the DSBD were outdated save for the DSBD’s Sexual Harassment Policy and had to be reviewed to be brought in line with the EEP of the organisation.

 

2.2.2. DSBD Recommendations

  • The DSBD had to address its failures to implement its EEP.
  • The Department had to develop and implement a gender-responsive policy in its procurement practices.
  • It must address the lack of information provided in relation to the following:
    • Gender-sensitive policies in relation to gender inclusion in line with section 9 of the Constitution.
    • The provision of sexual harassment workshops with a clear aggregation of the number of employees and the targeted employee cohort within the Department (senior management and middle management).
  • The Department had to review its Sexual Harassment Policy to align it with the Code of Good Practice on the Elimination of Sexual Harassment within the Workplace, 2022.
  • The DSBD had to formally invite CGE to future sexual harassment workshops and planned training.
  • Ensure that a comprehensive risk assessment on sexual harassment and bullying I the workplace is conducted, and it had to submit the finalised risk assessment report to CGE.
  • To provide disaggregated data regarding its internal and external working policy in relation to PWD, and stipulate any policies and steps taken to create an enabling work culture in line with the universal access guidelines regarding disability accommodations.
  • To provide a timeline in terms of gender markers and KPAs of other members of management.
  • To comply with the above-mentioned recommendations and submit the written progress report to the CGE by 30 June 2023.

 

2.2.3. Progress on DSBD recommendations

  • The DSBD submitted its progress report to the Commission in June 2023. The Commission is currently evaluating and engaging the DSBD on its progress in the current financial year.

 

2.3. Department of Water and Sanitation

2.3.1. DWS Preliminary Findings

  • The DWS failed to provide a comprehensive completed questionnaire with supporting documents.
  • The DWS failed and/or neglected to demonstrate commitment to transformation practices.
  • Due to lack of information, the Commission was not able to determine whether the working environment was conducive for persons with disabilities.
  • The top and senior management positions were predominantly occupied by black women and black men, almost to the exclusion of all other racial groupings.
  • The DWS did not have a designated EE Manager, as section 20 of EEA requires, and there was no information submitted to conclude that there was a gender-focal person to spearhead transformation.
  • The DWS did not utilise gender-responsive practices.
  • The Department did not have policies to deal with relevant issues, specifically those of gender disability and issues facing the LGBTQIA+ community.
  • The Department did not conduct sexual harassment workshops in 2018 and 2019 nor submit a sexual harassment policy for analysis.
  • The DWS did not provide a full and comprehensive response regarding the questionnaire dispatched nor did it provide adequate evidence as the questionnaire required.

 

2.3.2. DWS Recommendations and requests for further information

The Commission required the following information from the DWS:

  • Full and comprehensive responses to the questionnaire and provide further evidence requested in the questionnaire; and following the completion of the questionnaire, DWS may be called for a follow-up hearing based on the additional information submitted and for the subsequent analysis.
  • The DWS had to address the lack of information provided in respect of the following:
    • Sexual harassment policy;
    • Gender sensitive policy in respect of gender inclusion in line with section 9 of the Constitution;
    • The provision of sexual harassment workshops, with aggregation of the number of employees and the targeted employees’ cohort within the DWS (managerial);
    • Comprehensive plan on the sexual harassment training and disciplinary processes in instances of a power imbalance between the perpetrator and the victim within the DWS;
    • Comprehensive outline of the process of legislative review in line with the Water Services Act to enable the DWS to issue directives on the enforcement of compliance with drinking water quality;
    • Provide reasons for the lack of a gender responsive procurement programme within the DWS and why this is not a priority for the DWS;
    • Provide a comprehensive document outlining the disciplinary processes concerning the handling of sexual harassment within the DWS;
    • The DWS had to provide disaggregated data in terms of its internal and external working policy concerning PWD and stipulate any policies and steps taken to create an enabling work culture in line with universal access guidelines in terms of disability accommodations; and
    • The DWS had to provide a timeline in terms of gender markers and KPAs of other members of management.
  • The DWS had to conduct gender sensitization workshops before the end of March 2023.
  • The DWS had to provide CGE with a comprehensive outline of the steps taken to address the legislative gaps. Addressing the gaps will empower the DWS to issue directives to municipalities and water providers on the enforcement of compliance with drinking water quality.
  • Provide CGE with a comprehensive outline of the Department’s intervention strategy in the Magalies Water matter and the ongoing litigation.
  • DWS had to ensure that a comprehensive risk assessment on sexual harassment and bullying in the workplace was conducted and it had to submit the finalised risk assessment report to the CGE,
  • The DWS had to comply with the above-mentioned recommendations and sumit the written progress report to the Commission by 30 June 2023.

 

2.3.3. Progress on DWS recommendations

The Commission continues to engage the DWS on its progress during this financial year. The DWS submitted the required information and its progress report to the Commission in June 2023 and appeared before the Commission on the 14th of September 2023.

The Commission will embark in the process of drafting the final report upon receiving further policies/ information from the DWS due 30th November 2023.

 

2.4. Clover (PTY) LTD

During the public investigative hearing, a representative from the Clover (PTY) LTD appeared before the Commission to account for the state of transformation at the workplace. The Commission expressed its displeasure at the lack of preparedness by the representatives of the company, including the lack of a detailed presentation to the Commission.

 

2.4.1. Clover (PTY) LTD Findings

  • Clover did not conduct workshops on sexual harassment n over five years. Clover had a duty in terms of section 5 and section 60 of the EEA to take reasonable proactive steps to eliminate sexual harassment in the workplace and promote equal opportunity and unfair discrimination.
  • Clover lacked the understanding of why employees from designated groups at the junior and middle management levels were leaving the company. The duty to create an enabling work environment requires Clover to consult, take into cognisance and address why employees leave Colver’s employment. The Commission noted that Clover planned to conduct an analysis in this regard, and it is desirable for the Commission to be provided with the analysis report upon its conclusion.
  • Top, senior and middle management levels were dominated by the representation of White persons at over 60% average, which drops to about 22% from the junior management level. Similarly, the representation of African, Coloured and Indian persons was dominant at the lowest positions, being the junior management, semi-skilled and unskilled levels.
  • Clover cited the difficulty of sourcing PWD to partake in the Clover Contact Centre learnership programme.
  • The KPAs of Clover’s top and senior managers did not require compliance with transformation or gender transformation. Failure by Clover to set the key performance areas of transformation in the performance agreement of the top and senior managers rendered Clover incapable of holding the managers accountable for non-performance and demonstrates a lack of commitment to transformation.
  • The Commission observed that Clover did not indicate the timeline regarding the handling of the sexual harassment cases nor the yardstick to measure the expeditious handling of these cases.
  • It was not clear who the designated EE Manager was between the Chief Executive Officer and the “Chairperson” of Clover.

 

2.4.2. Clover (PTY) LTD Recommendations

  • To review the sexual harassment policy to ensure that it is aligned with the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, published on 18 March 2022. In doing so it must ensure that the provisions of bullying, consequences of reporting false allegations and handling the matter involving senior managers and the CEO are included.
  • To ensure the implementation of sustainable measures to safeguard the expeditious handling of sexual harassment complaints.
  • Had to conduct training/workshops for top and senior managers on the reviewed sexual harassment policy and invite the Commission to observe the workshops when they are being conducted.
  • Clover had to ensure that a comprehensive risk assessment on sexual harassment and bullying in the workplace was conducted, and it should submit the finalised risk assessment report to the Commission.
  • The company had to review all its organisational policies that were not reviewed and ensure that the reviewed policies were resubmitted to the Commission.
  • Clover had to ensure the expeditious finalisation and implementation of a written flexi-time policy to curb the potential abuse of managers’ discretion when granting flexi-time.
  • Considering the Maternity Policy that was implemented then throughout the organisation, Clover had to re-evaluate the nature and necessity of the Pregnancy Policy to avoid unintended exclusionary consequences.
  • Clover had to conduct an analysis to determine why designated groups are leaving or not being retained within the organisation to improve the representation of designated groups in all occupational categories, per section 20 of the EEA 55 of 1998 as amended.
  • Had to develop additional means of consultation with its employees regarding their retention and not only utilise the exit interview process. The process then could limit exiting staff because vague or misleading responses were often gathered during the exit interview.
  • The organisation had to ensure that women are also represented at the top management level, as the lack of representation of women at this level exacerbated the culture of male domination. Similarly, the total dominant representation of White persons was concerning and was inconsistent with section 20 of the EEA.
  • The Mama Afrika project had to be reviewed to provide relevant IT training to the beneficiaries, with due consideration for the need for IT skills development as a result of the fourth industrial revolution.
  • Clover had to ensure that it consult with institutions of learning, civil society organisations and non-profit organisations to assist in sourcing PWD.
  • The organisation had to provide comprehensive proof of the implementation of the equal pay for work of equal value principle.
  • Clover had to review the appointment of the EE Manager and delegate the necessary authority to the appointed person to hold the CEO accountable for transformation.
  • The company had to ensure the inclusion of transformation goals in the key performance areas of the top and senior managers for accountability purposes.
  • It had to ensure that its various empowerment programmes positively impacted its workforce representation throughout the various occupational levels.
  • Clover had to provide the evaluation criteria that its compliance officers were utilising in the implementation of compliance legislation against transformation legislation.
  • It had to comply with the above-mentioned recommendations and submit the written progress report to the CGE by 30 June 2023.

 

2.4.3. Progress on Clover recommendations

CGE continues to engage Clover on its progress during this financial year. Clover submitted the required information and its progress report to the Commission in June 2023 and appeared before the Commission on the 14th of September 2023.

The Commission is in the process of evaluating information provided and drafting the final report to be tabled in the end of the financial year.

 

3. CGE PROGRESS REPORT ON TRANSFORMATION IN THE PUBLIC AND PRIVATE SECTORS 2022/23

3.1. Background

During 2021/22 the Commission conducted its transformation hearing in the Public and Private sector. The following entities appeared before the Commission:

  • ArcelorMittal
  • Stauch Vorster Architects
  • SANParks
  • Department of Forestry, Fisheries and Environment

Durin 2022/23, the Commission engaged these entities regarding the progress of implementing its findings and recommendations.

3.2. Overall Conclusion (All 4 entities)

The Commission made the following conclusions:

  • The Commission observed that both the private and the public sector entities that came before it experienced major setbacks with respect to transformation.
  • In addition, a polarised approach to the transformation issue occurs. In terms of remedial action related to the Commission’s findings and recommendations, the private sector appeared to be taking concerted actions to correct its shortcomings. This conclusion was reached based on an analysis of follow-up reports submitted by both public and private entities.
  • What was concerning in the public sector was the outdated sexual harassment policies relied upon by the departments. This enabled the Commission’s clearer understanding of what departments reported regarding sexual harassment complaints or the failure to take adequate action by departments in this regard. The lack of timely investigations and conclusions regarding investigations related to complaints and the brazen conduct of perpetrators was evidence of this.
  • In both the private and public sectors, sexual harassment training for staff and management was sometimes non-existent. The Commission cautions entities against failing to eliminate sexual harassment in the workplace. Elimination can only be done proactively. As a result, it is imperative that entities provide employees with adequate and proper training on sexual harassment in order to prevent sexual harassment from occurring. If such training is not provided, employees are not protected. Thus, under section 60 of the EEA, employers may be liable for vicarious liability.
  • As far as representation is concerned it is apparent that neither the public nor private sectors included PWD. PWD recruitment was almost non-existent. The Commission observed that entities do not fully implement the B-BBEE and PPPFA provisions regarding recruitment practices. The consequence of such resistance is that progress is hindered for Black women and other designated groups who own and manage existing and new businesses. Representation policies promote black access to economic activities, infrastructure, skills and training. Furthermore, reported data shows that some entities are not meeting their legal obligations to include vulnerable groups in their procurement cycles and to comply with legislation.

Pursuant to the hearings and the submission of follow-up reports and evidence, both sectors made great strides toward addressing the Commission’s recommendations, and the entities showed a willingness to work with the Commission to slowly improve the trajectory of transformation.

 

4. COMMITTEE OBSERVATIONS

The Committee, having considered and deliberated on the report on Gender Transformation Investigations, made the following observations:

  • The Committee commended the work of the CGE in its quest to promote and protect gender equality, as the Constitution demands. The Committee further welcomed the Gender Transformation Investigations in the public and private sector.
  • The continuous under-representation of women in senior management positions was noted as a concern.
  • The Committee expressed concern over non-compliance by some Departments and private sectors with the CGE’s reports.

 

5. COMMITTEE RECOMMENDATIONS

The Committee having considered the CGE Report on Gender Transformation Investigations in workplaces, recommends the following:

  • The Committee needs to continue with its endeavour to understanding all gender transformation in all sectors.
  • The CGE, working closely with DEL, assists workplaces with the necessary capacity required to develop their own sexual harassment and GBVF-related policies.
  • The Committee commits to constantly make a follow-up on gender transformation in the labour market.
  • The Department, in collaboration with CGE, sets up a dedicated unit that will monitor the implementation of gender transformation and the National Policy Framework on GBVF in the public and private sectors.

 

Report to be considered.

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