NATIONAL AFRICAN FEDERATED CHAMBER OF COMMERCE (NAFCOC)

BACKGROUND:
In our earlier submissions, NAFCOC endorsed its full support of the employment equity act. We enthusiastically participated in the Nedlac discussions leading to the act solely to ensure that a law to eradicate discrimination in the labour market was ushered in. For us this was one reason we committed ourselves to the struggle against apartheid ie. to achieve social justice in South Africa.

Needless to say that as Black entrepreneurs in the Republic of South Africa we have assumed a weaker position in tile stock exchange in ownership of productive assets as well as in management of operations in which we have a share. This weakness is a direct result of discriminatory practices of the Nationalist Part regime and its supporters. While the political chiefs denied us the right to vote, their supporters who invested in the South African economy and indeed reaped the fruits of the economy, accumulating wealth for themselves and their future generations, also collaborated with the system to ensure that we black managers and entrepreneurs were never given opportunities.

Not only were we prevented from ascending the corporate ladder (God knows why) but we were also denied even the opportunity to trade i.e. make a living. They believed that Black entrepreneurs would continue to gain economic power and possibly use their resources to support the liberation forces, thus adding to the Swart Gevaar. To their surprise the ANC's, AZAPO's, PAC's, IFP's continued to thrive and gained even more support. The Swaart Gevaar became even more dangerous and unbearable. Our struggle had not been to discriminate others, but to bring about justice. Today we sit side by side with our oppressors in Chambers in parliament_, in government. Ironically all efforts are still being made to build a wall preventing us from entering boardrooms_, management echelons, controlling and decision making clubs, to country clubs, to play golf, to owns shares, to run operations, to be responsible for their training and development to direct and to make investment decisions. The excuse is skills, skills, skills.

Chairperson they have even gone abroad to declare themselves sole representatives of South African businesses claiming no capable bIack person exist. They argue that the constitutions of the ILO, WTO, Pan African Employer Federations, etc will not allow a joint (black and white) representation of South African business. This is their exclusive and sacred right which they must protect so religiously that they can go to their grandfather's graves to report that Blacks still do not participate in lnternational business decision making, let alone women and the disabled.

Chairperson as a Black entrepreneur, I speak to reflect to your committee the hardships experienced by Black people women and the disabled in the workplace who are despised by their white counterparts in the workplace each time they apply for jobs, desire better prospects, wanting to ascend to management and partake in decision making. All sorts of myths are thrown in their faces in good english terms eg. Unsuitable, do not meet to requirements, lack experience, lacks business acumen, needs to understand corporate governance etc. My mother is Zulu speaking and my father Xhosa, I sometimes struggle to understand what these words mean or should mean in certain desperate times. I however know that words may assume desperate meanings in desperate times.

On the 5th April 2000, The Natal Mercury, in addressing the issue of applicants on the position of judge president in KwaZulu Natal had as its headlines "Judge had, drinking problem"(referring to black applicant). It interested us chairperson that the editor did not find his white counterpart's scandals and anti black_, anti transformation stance a matter to make headlines. This became another sharp reminder that indeed this is South Africa for you.

HUMAN RESOURCE DEVELOPMENT, JOB CREATION AND THE CHANGING WORLD ORDER.
In order to draw comparisons between the responses of various states across the
world to the current changes in the international economic order it is necessary to
outline what is best seen as a consensus about the way the world's economy now
operates and the direction in which the generation of wealth will develop in
future. It is generally assumed that we now live within globalised form of production in which capital has been "liberated" to find its most conductive home. Production is dispersed throughout the world to point adjudged of maximum value to the producers. Consequently we have "German" sports shoes made in Taiwan and ltalian" clothing manufacture in Singapore. The extent to which nation state can be said to have any control over the economic decisions affecting their population has weakened accordingly.

Another marked response to the 'new world order^’ outlined above has been for individual nation state to engage in the attempts to attract the mobile capital to their own countries. The chasing or investment capital has become a primary task for many governmental departments worldwide and the future of work in many countries depends on the degree to which governments can put together packages that accord with the corporate plans of the transnational companies. The variable in play are numerous, but governments willingness to provide infrastructural requirement, modem working sites, tax advantages and even government contracts are frequent features. The proximity to established or emerging markets clearly influences decisions in this area and the Pacific Rim is perhaps the best place to look for the effectiveness or otherwise of this aspect of policy. The exploitation of workers in some of the Export Processing Zone in the emerging countries has led to criticism of such policies, but there is a recognition that some state may have no choice but to match each other in what is little more than an auction whose prize goes to the lowest bidder in respect of the trans-nationals.

The other key variable in this equation is the nature of the human resources that the country can put at the disposal of the incoming investors. This issue has two dimensions. Firstly there must be a basic level of educational competence to operate in the modern working world and to perform at international level of competence. Secondly, and more important, the level of educational \ vocational skill may well directly affect the nature of the work that can be undertaken in any one location. The argument runs that in globalised production the goal is to attract the part of the production process where the maximum amount of is value added to the product thus generating the largest amount of income. In order to do this it is necessary to have a large highly skilled labour force. Failure to provide this crucial part of the package means that states are only able to bid for the low value-added element with similarly low benefits. The necessity of this has been recently exemplified in China where in at least one of the Special Economic Zones development has been seriously undermined by the fact that the incoming companies have been unable to find competent middle management staff and are consequently having to bring in their own staff from around the world or slow down the expansion of work. It is suspected that it is only the fact that China is such a potential market that their tolerance is so high. The response by the authorities has been to engage in a rapid staff training programme to fill the gap in the labour market. It is policy in this area of human resources supply where the state can directly affect the economic environment and it is here that we see states at their most active. As we turn to this feature, we shall consider briefly some examples of the ways in which countries have attempted to work with those already in the workforce, those about to enter the workforce and those excluded from it. A final section will refer to the encouragement of entrepreneurialism on a broad scale.

Chairperson in a county like South Africa, with a legacy of apartheid, a skewed economy, where race has played a major role in development of society, its evidently clean, that the state needs to play a key role in ensuring that this order of racial segregation is not entrenched whilst trying to deal with economic challenges. I might add Chairperson that South Africa can only win as a nation. Therefore its productive capacity must be enhanced. Black and white South Africans must as a matter of urgency tackle and confront the world order -exclusion of blacks, women and disabled is not the answer.

DISCRIMINATION AND SOCIAL JUSTICE
Employment equity centres on eradication of unfair discrimination of any kind in hiring, promotion, training, pay, benefits and retrenchment in line with constitutional requirements. It also deals with measures to encourage employers to undertake organisational transformation to remove unjustified barriers to employment for all South Africans, and to accelerate training and promotion for individuals from historically disadvantaged groups.

We accept Chairperson that employment equity does not provide a panacea for all evils of past discriminatory policies. To succeed, it could form part of a broad complex of measures that enhance overall social and economic equality in ways that support productivity, democracy and diversity.

We hold our constitution dearly, we will defend it all times. The employment equity act is therefore seen by us as giving effect to the objectives of the constitution, regards elimination of discrimination and introduction of equal opportunities for all. It should therefore be equally supported. Chairperson - we are here once more to say No to discrimination Yes to equal opportunities. Social justice is a must in assuring that blacks, women and the disabled take their rightful places in the economy. Employment equity is the way to go. Blacks, women and the disabled look up to this government for protection.

AFFIRMATIVE ACTION
As required by the act, employers have put in place affirmative action measures to encourage institutional change. They need to engage in accelerated training and promotion of individuals from historically disadvantaged groups in this context.

It is clear from the aforesaid that the company is the subject of change. It follows therefore that there can never be changed if at the top of such a company there is no representation of historically disadvantaged groups. People must be part of the change process. No one can do it on their behalf.

These proposals aim at transformation of the workplace. They establish a continuous process of human resources development with an ethos of equity for all. Ultimately, employment equity will form an integral part of the strategy and culture of every organisation and of the country as a whole. It becomes a leading goal in practices around human resource development.

From a technical standpoint, the argument in economics that free competition will eliminate discrimination assumes a fairly perfect market. In South Africa, high levels of concentration and common employment practices across all major employers in many sectors negate. Competitive pressure to further the careers of the most productive employees. In that context, poor labour market signals emerge in large part because white employers cannot adequately assess Black credentials, experience or recommendations. Given the predominance of whites among management, the shortcomings will not rapidly disappear.

THE WAGE GAP
In South Africa, differences between income and status in the economy go hand in hand with race and gender. Generally the data shows that substantial inequalities still exists between blacks and whites and men and women, even when they have similar occupational status and education.

Massive inequalities in income and status affect social cohesion, undermine efficiency and economic growth, and have a devastating impact on families and individuals. This section briefly explores some of the implications clearly, South Africa can not sustain inequalities related to race and gender at the level it currently suffers. They contribute to high levels of social unrest and crime, which undermine growth and development. Extreme inequalities also effect the economy directly. They are associated with inefficiencies in the labour market and consequently throughout the economy. In addition they have stunted domestic demand and human resource development.

NAFCOC supports the concept of the reduction of the wage gap. We argue that this discussion must take place in the context of employment equity and not conditions of employment. The wage gap arose out of discrimination and it must be dealt with under anti-discrimination.

INSTITUTIONAL FRAMEWORK AND ENFORCEMENT MECHANISMS
Chairperson, this is an area we must pause and consider carefully. This act must achieve its goals, it must, by all means necessary. If companies can not do it on their own accord; they must be forced to. Capital must not direct people, people must direct capital.

NAFCOC PROPOSES
(a) That the Department of Labour inspectorate must be beefed up.
(b) The concept of workplace forums must be revisited. It appears to be one key institution that can be the eyes and ears of all of us in industry.
(c) Trade Unions to dedicate shopstewards to deal specifically with equity issues (full-time).
(d) Whistle blowing programmes be introduced.
(e) All the steps prescribed by the act need to be monitored and random checks to take place as to the implementation of plans.

THE ROLE OF JUDGES AND ARBITRATORS IN THE INTERPRETATION AND IMPLEMENTATION OF THE AFFIRMATIVE ACTION POLICIES.
Whereas early labour legislation was designed to deal with the more severe consequences of industrialisation (injuries, illness, Compensation, unemployment etc. equity legislation is more specific indication of the values and intent of the government. The state here has an intention to "steer" social and economic life in a particular direction_.

There are however other secondary methods of judification namely the role of the judiciary and arbitrators in the interpreting and implementing affirmative action policies. It is our suggestion that contrary to the social purposes behind such policies, the adjudicative role can all too easily be a Conservative one, more attained to the protection of individual rights than the promotion of the broader social purposes. This is a dangerous position_.

The significance of the performance of adjudicators lies in the need for the legislation and affirmative action policies to be seen to transform society in more than a cosmetic way_. Increasing there will be attention focused on performance in terms of affirmative action by companies and institutions_.

In the mid 90’s the BMF set the target for the year 2000 that 70% of supervisors should be black, as opposed to the 1993 reality of the 17% of african men and 3% africans1 women filling supervision and skilled positions. The current situation is far from this. It is thus clear that dependents on moral imperative to drive affirmative action does not won it is therefore economics imperatives that will drive it. Developing South Africa's productivity capacity is one such imperative if we are to become serious players in the global market_.

Because affirmative action is by definition discriminatory, it is inevitable that there will be conflict, interests and expectation of all races and genders are at stake. Disputes are often emotional and give rise to antagonism that have the potential undermine confidence, loyally and Co-operation_. Dispute situations, which have or may potentially arise include:
I
(1) The failure to implement an affirmative action policy_.
(2) The reluctant implementation or avoidance of an agreed affirmative action policy.
(3) Challenging to an affirmative action policy, particularity whether it is not narrowly defined to achieve a specific purpose_.
(4) A grievance that a person perceived to be less competent is appointed or promoted.
(5) A grievance that an outsider is appointed leap frogging insiders with potential_.
(6) An affirmative action appointment is made for window dressing with no intention to handover responsibilities.
(7) No monitoring/ training is provided for an affirmative action appointee_.
(8) Rigging the interview process.
(9) The appointment of black non South Africans over South Africans citizens.
(10) The failure to promote a white employee because of the existence of an affirmative action policy.
(11) Refusing to appoint a white employee on a permanent basis_.
(12) The recruitment of a white employee to make a way for an affirmative action employee.

From the mounting number of decisions the court and the CCMA, it is clear that appointment and promotion grievances brought under the residual unfair labour practice provisions are already the source of much workplace conflict_. It is unavoidable to comment in the cases that have been accessed, the vast majority of litigants are white males.

The implications of this are that adjudicators are generally interpreting the law with one sort of application in mind and acting by the large to protect this group. Designated group must be protected_.

We must add Chairperson that, the court and arbitrators must appreciate that whilst management have their prerogative to manage, which may imply hiring and promoting, the implications of the government policy of affirmative action must be rocognised. Failure to recognise this, may lead to this prerogative of management declared unreasonable. Grienbam V South African Revenue Service (Customs and Excise) CCMA KN 20090 6 Nov 1998 refers:

We must warn against a move by the court that they are hesitant to interfere with management discretion as in Golieth V Medscheme Pty Ltd (1996 s BLLR 603 (IC) – we must supposed the view that the intentions of the law reign supreme_.
Together we must speak loud to our arbitrators and judges to say the intention of the law ie. to bring about social justice, reign supreme to any consideration, otherwise transformation and affirmative action will never occur, Blacks, women and disabled will forever remain in bondage and the countries prospects of developing it’s productive capacity dealt a blow_.

THE ISSUE OF HIV/ AlDS
The question to be asked is who benefits from HIV testing. If the employee benefits Yes we can, otherwise No_. As for synergy of policies with those of the Department of Health, we must caution that in this context discrimination is the enemy we are dealing with. The Department of Health deals with sickness. NAFCOC maintains its stand on No HIV testing for purposes of employment equity.

FINALLY NAFCOC SUPPORTS THE EMPLOYMENT EQUITY ACT. WE CALL ON ALL SOUTH AFRICANS TO MAKE IT WORK.