FEDUSA COMMENTS ON THE EMPLOYMENT EQUITY ACT
TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON LABOUR
ON 11 APRIL 2000
1 INTRODUCTION
The Employment Equity Act seeks to give effect to our Constitution by prohibiting discrimination on the one hand and entrenching equity in the workplace through the use of affirmative action on the other. These twin objectives are designed to complement each other. The reality is that removing discrimination on its own will not ensure equality in employment opportunities for those who have been denied access to jobs, education and skills in the past. The Act therefor has to go further and place an obligation on employers to introduce affirmative action steps to redress these imbalances. Furthermore, the Act seeks to bring our Labour Law and practices in this area on a par with those in the rest of the world. We are now able to meet our obligations in regard to one of the core conventions of the International Labour Organization, Convention 111, which deals with discrimination in employment and occupation.
However. measures to achieve equitable representation of previously disadvantaged persons at each level of the occupational hierarchy alone are not adequate to address the historical imbalances. The Employment Equity Act seeks to democratize the workplace through a comprehensive and integrated strategy of which affirmative action is one, albeit central pillar.
FEDUSA believes that the Employment Equity Act will usher in a new dispensation in the South African labour market.
Key areas of concern with the implementation of the Act are those employers and employees must be informed about the provisions of the law and how to apply it. Secondly, the law must be easy to apply and employers should not bear undue costs to implement the provisions of the Act. Thirdly, employers and workers should be able to implement the Act in ways that will enhance productivity, efficiency and good employment practices. Fourthly, employees who feel that they have been unfairly discriminated against should feel free and be confident in utilizing the provisions of the Act to act against unfair discrimination.
2 AREAS OF CONCERN:
Notwithstanding our broad support for the Employment Equity Act there a few key issues FEDUSA wish to raise our concern with the members of this Portfolio Committee i.e. the provisions dealing with section 15 (i) of the inherent requirements of the job; the defining of "the ability to acquire"; the debate relating to numerical targets vs quotas; disciplinary procedure mechanism of the Act and the role of the CCMA; feasibility or practicality of keeping employment equity plans for long periods of time; income differentials; Dual process : Nedlac vs Parliament; HIV/ Aids reality; Contractual law obligations.
There are two defenses which employers can raise to discrimination claims. One of these is that the discrimination is not unfair because it is based on the inherent requirements of the job.
The problem with this defense is that employers have stereotyped ideas about what jobs should be done by for example men and which jobs should be done by women. One way in which to make sure that this defense is used as narrowly as possible and does not prejudice any person, is to list the types of jobs where gender for example is an inherent requirement.
Experience on the workplace have indicated that each position within a workplace should have a work profile which includes the key outputs and competencies which is believed to be the inherent requirement of the job. The competencies can be further defined into skills, commitment and knowledge of the tasks to be performed. The outputs and competencies must be open ended and should be linked to career clustering and a training needs analysis based on an agreement between the employee and management. The inherent requirements should be reasonably measured against the average requirements stipulated by the market.
Employment equity if it is core competency based will ensure that it improves standards based on the alignment to best practices in the workplace. Work organization, multiskilling, recognition and rewards, selection and recruitment, education and training and performance management must in turn be developed around these core competencies. Core competencies is the focus for developing strategically and culturally in sync with the sustainable objectives of restructuring and transformation.
Stakeholder governance, multifactor income and asset appraisals will form part of this integrated approach to core competencies based, employment equity. This will ensure that employment equity will firstly remove historical conflicts, implement new minimum standards as well as aligning it with best practices.
The required core competencies and associated leadership work organization and skills requirements will shape the culture of an organization. These are in turn shaped by the demands being placed upon the organization and its stakeholders by the global best practice restructuring and transformation objectives. Within the context of developing a South African culture of work, the core competencies must focus on the development of people and leadership within the context of a team based empowered organization.
2.2 SUITABLY QUALIFIED: DEFINITION OF "ABILITY TO ACQUIRE WITHIN REASONABLE TIME"
In terms of clause 15 affirmative action measures are those designed to ensure that "suitably qualified people" from designated groups have equal employment opportunities in the workplace. Such measures must include measures (clause 15(2)(d)(i) to ensure the equitable representation of suitably qualified people from designated groups and measures (clause 15 ~ (2)(d)(ii) to retain, develop and implement appropriate training measures relating to designated persons. Two unclear concepts concern the "under representation" of people from designated groups and reasonable progress" towards implementing equity.
More precise determination is needed in the Regulations so as to determine what period would constitute a "reasonable time."
The challenge to employers are to find creative means to firstly, expand the pool of available candidates and secondly, to make the workforce attractive.
FEDUSA’s objection to provisions in the Regulations are that the required method of reporting will force the employer to appoint on a quota system and not a numerical goal system as the pro-forma report is to be done on a racial and gender basis. To our mind this is misleading and confusing and will detract from the original intention of utilizing numerical goals.
2.4 DISCIPLINARY PROCESS REGULATIONS SHOULD NOT BE PART OF THE EMPLOYMENT EQUITY ACT
There is no provision relating to discipline in the Employment Equity Act. Therefor there is no reason why the Regulations should require the employer to report thereon.
The Act do not provide for the timeframes the Employment Equity plans must be kept on record, yet the Regulations contain stipulations thereto. FEDUSA do not oppose this but feel that record keeping should be done in terms of the Archives Act and that these provisions should suffice.
South Africa appears to be leading the way internationally in requiring employers to disclose details of employees’ salaries as a means of closing the wage gap. Making the measure unique is that it is the basis for redressing the apartheid past. Where disproportionate income differentials are reflected in the statement, the employer must take measures to progressively reduce such differentials "subject to guidance given by the Minister of Labour". These measures may include collective bargaining; compliance with sectoral determinations made by the minister in terms of the Basic Conditions of Employment Act and applying the norms set by the Employment Conditions Commission.
FEDUSA does not believe that it is neither appropriate nor sound to attempt to address the mooted issue of wage differentials within the context of the Act. Wage differentials, as a central theme is not the focal point of the Employment Equity Act. We submit that the employment equity process is not adequate to deal with the progressive elimination of the apartheid wage gap. The process of addressing the wage gap is far bigger than the parameters of this Act. It would therefor also not be appropriate for the wage gap to be dealt with in the same manner as grievances about unfair discrimination or as disputes about employment equity plans.
Salary ratios by themselves are only a crude and limited indicator of income distribution within a given organization. The fact that the salary at the bottom may be unacceptable low does not necessarily mean that the salary at the top is unacceptably high. It may simply mean that the salary at the bottom is too low for a decent standard of living. These aspects should not be addressed through legislation but through collective bargaining or other means of bargaining.
What FEDUSA endorse is that any wage differential that exists between employees performing the same duties in the same job classification should be eliminated.
The concept of "equal pay for equal work" should apply and be enforced vigorously. It is important that equal pay for work of equal value is guaranteed. Codes of Good Practice or Regulations should be laid down to provide guidelines to assist in determining what constitutes work of equal value.
FEDUSA also believes that the disclosure of salaries shall not survive a challenge in terms of clause 14 of Chapter 2 of the Constitution of the Republic of South Africa as it invades the individuals right to privacy.
The grouping is too wide and reporting on employment as well as income differentials will result in a skewed picture being presented which in turn will result in wrong assumptions being made.
Normally NEDLAC is involved in the compilation of the Codes of Good Practice, even if the parties at NEDLAC is only given the opportunity to comment on the proposed wording of the regulations in writing. This did not happen with the Employment Equity Regulations and FEDUSA would request a reason for this deviation as the regulations relates to a matter of social and Labour responsibility. FEDUSA believe that this is an omission, which will result in suspicion towards the process, which will eventually result in negativity towards the Act.
Employers who dismiss an employee because he or she is HIV – positive are guilty of an unfair labour practice and can be challenged in court. The need to inform employers of this provision in the Employment Equity Act of 1998 is becoming apparent in light of the high prevalence of HIV in this country. Research conducted by Soul City Institute for Health and Development Communication found that employees particularly domestic workers, had been unfairly treated when they revealed their HIV status to their employers. Once again the relevant requirement of the job should be considered and the health and safety of fellow employees and the employee concerned should be the determining factor when dealing with HIV/ Aids infections.
A dispute about protection of employee rights conferred by the LRA (Section 48) may be referred to the CCMA for conciliation under Section 49. If unresolved after conciliation, it may be referred to the Labour Court for adjudication by the CCMA. These procedures are satisfactory, but the CCMA is likely to carry a large additional load as a result of this Act. To alleviate the CCMA case load, alternative dispute resolution provisions should be included in the LRA.
Employment equity would be outside the experience of already overworked arbitrators of the Commission for Conciliation Mediation and Arbitration (CCMA). FEDUSA would like to suggest that a specific provision for the creation of a CCMA division that only deal with Employment Equity cases are considered. This will result in dedicated and specifically trained Commissioners dealing with the specific employment equity issues.
It appears that some employers are under the mistaken belief that laying off white staff particularly men are also seen to be "quite legitimate" to comply with imminent law compelling employers to advance the work prospects of blacks, women and the disabled. FEDUSA anticipates problems in a few areas such as "Chapter 3 of the Act, which intrudes into contract law, where the Act provides for cancellation of existing state contracts of employers failing to comply with the relevant provisions of the Employment Equity Act." We feel that this in turn will result in employees being retrenched because of the cancellation of the tender/contract.
3 CONCLUSION
How easy or difficult it will be to implement the Act depends on such factors as the degree to which people welcome or resist the change, what their expectations and anxieties are and the resources available for training and restructuring. Finally, the debate about the Act should no longer be about whether it is good or bad law. Efforts should be focussed rather on ensuring that the Regulations and Codes of Good Conduct are refined to add an extended provision that will facilitate the implementation of the Employment Equity Act in practice.