1. To receive a briefing on the 2003/04 annual report of the Commission on Employment Equity.

2. To monitor progress and establish problems relating to the implementation of the Employment Equity Act (Act No 55 of 1998).

3. To determine the level of compliance and non-compliance by designated employers.

The Committee agreed that a report would be compiled and tabled in Parliament after all the information had been collated and analysed.

The Commission was established in terms of the Employment Equity Act, 1998. Its functions include advising the Minister on the codes of good practice, regulations, policy and other matters concerning the Act.

The Department of Labour (DOL) made a presentation on the 2003/04 annual report of Commission as the its term had already expired, and the DOL was the a process of appointing a new Commission.

The Commission on Gender Equality (CGE), the Black Management Forum (BMF), Disabled People of South Africa (DPSA), and Business Unity of South Africa (BUSA) also made submissions on the Annual Report.

The Report reflected the highlights of the key achievements from October 2003 to September 2004, the distribution of the workforce in SA in terms of race and gender, employment equity trends depicted in employer reports received in 2001and 2003, and concluding observations.

The highlights of the Commission’s achievements included the following:

• The development of the Technical Assistance Guidelines (TAGs) on the employment of people with disabilities.
• The development of the Code of Good Practice on the integration of employment equity into human resource policies and practices.
• The workplace site visits conducted within the public and private sectors.
• The development of the employment equity Award System.

The TAGs on the employment of people with disabilities were meant to guide, educate and inform role players about the entitlement to fair treatment of people with disabilities.

The workplace site visits were aimed at determining progress made by employers in implementing the Act, gathering information on substantive compliance at workplace level. The report reflected that reports submitted to the DOL did not provide a full picture of the progress made by employers in implementing their employment equity Plans.

• Some employers struggled to distinguish between social responsibility and employment equity.
• Few employers were concerned about difficulties with the reporting forms.
• Employers seemed not to link skills development with employment equity.
• Some employers were concerned about the difficulties with the reporting system.
• There was an insufficient link between employment equity and sub-contracting
• Employers appeared to see a crucial link between diversity and employment equity.

• Blacks were mainly in middle and lower management positions.

• Some employers had a narrow understanding of Affirmative Action (AA), especially regarding the intersection of race, gender and disability.
• Some private companies were struggling to recruit and retain Blacks, especially African women.

Observations on gender

• Males still predominantly occupied senior and top management positions.
• Only three percent of women were accounted for in the mining sector.
• Some employers provided an affirming environment for women in terms of reasonable accommodation for example, flexi-time and childcare facilities and laptops to enable mothers to work from home.

Observations on Disability

• Employers showed a limited understanding about disabilility.

• A number of employers seemed to think that providing reasonable accommodation for people with disabilities would pose a serious financial burden. As a result most employers appeared to be uninformed about strategies to manage disability in the workplace.

Observations on HIV/AIDS

• Except for one employer, employers reported on programmes relating to the management of HIV/AIDS in the workplace.

There was a concern that surveillance testing was not anonymous at some workplaces. In some companies HIV/AIDS testing was done without the written consent of employees, and under the pretence of conducting a routine check-up.

The presentation included an analysis of employer reports received in 2003 which covered the information on work profiles, the status of people with disabilities, workforce movement, and employment equity trends for 2001and 2003.

The concluding observations were as follows:

• Although some employers were not pulling their weight to achieve employment equity, others were doing their best to achieve the objectives of the Act.
• Limited progresss was achieved in increasing the representation of designated groups at all middle and upper occupational levels and in some historically exclusive categories.
• Slow progress was made in the advancement of women in general, African women in particular.

The lack of consultation was prevalent in both public and private levels. Trade unions were not insisting that the consultation process be taken forward. It was suggested that the issue of consultation should be strengthened through advocacy work both at private and public levels. Employers and trade unions should ensure that this process is driven seriously, and that progress reports were signed by the respective parties.

The Committee raised concerns around the following:

(1) Implementation matters

The Committee noted that the implementing of employment equity was slow and the general state of non-compliance by some employers. Some designated employers failed to submit their employment equity reports in compliance with the requirements of the Act. Although there were weaknesses identified in the regulations, nothing was done to rectify the situation. Some employers did not distinguish between social responsibility and employment equity. There was insufficient link between employment equity and sub-contracting. Employer reports submitted to the DOL did not provide the full picture of the progress made by employers in implementing their employment equity plans.

There was lack of consultation between employers and employees, especially at government levels. The analysis of the workforce movement reflected a decline in the employment of Coloured people and Africans in middle management. However, progress in the advancement of women remained slow. The low level of input from organized labour into employment equity processes remained a problem.

(2) Awareness, advocacy and training

The Committee was concerned about whether information on employment equity was reaching people in rural areas, youth and the unemployed. It noted that 0there was ignorance of the Code of Good Practice and TAGs relating to the employment of people with disabilities at the workplace.

The Committee was concerned that most employers perceived learnerships as a burden. However, there was a need to look at alternatives to deal with the administrative burden that learnerships put on companies. The establishment of an agency that would administer learnerships by companies should be considered.

In relation to DOL’s intervention on SMMEs, levy paying SMMEs received a free training and grants from SETAs. Others participated in employment and skills development agencies that were established by the DOL. The SMMEs that did not pay levies received training funded under the National Skills Fund. The DOL was engaged in discussions with Treasury on the proposed amendments to the Skills Levies Act to increase the threshold of SMMEs levy exemption from R 250 000 to R 500 000.

(3) Enforcement

The Committee noted that although there was a legal instrument to enforce procedural compliance, there was no enabling legal instrument to enforce substantive compliance. The Director-General(DG) review system and the award system would serve as tool to enforce substantive compliance in a manner that was legally binding.

There was a concern around the lack of a pro-active approach to enforce employment equity and non-discrimination and around the inability of the CCMA to stem the practice of covert discrimination at work. It was proposed that the Committee consider conducting a workshop with the CCMA on employment equity. A concern was also raised about the lack of a yardstick for evaluating employment equity targets.

(4) Capacity and legislative links

The lack of capacity by the inspectorate to interpret and enforce the legal requirements of the Act was raised as a concern. The DOL had appointed a roving team of national specialists, comprising of four top inspectors in each province and capacitated to facilitate a deeper interpretation and enforcement of the Act. The DOL had identified administrative officers at levels seven and eight to be trained to conduct employment equity inspections.

There was a concern about whether there were programmes in place to empower women in management positions. The Committee noted that in most cases gender focal persons were often given added responsibilities. As a way of encouraging young girls, the Committee expressed support for initiatives such as ‘taking a girl child to work’.

(5) Matters pertaining to the Commission and its Annual Report

Only employers with 150 or more employees submitted employment equity reports in 2003. The Report did cover information per sectors. A proposal was made that the Report should in future contain more detail on the various sectors. The DOL agreed to look at sector-related issues both in government and business.

The Committee was concerned that the Report did not reflect the issue of youth and employment equity. However, the 2005-2010 National Skills Development Strategy highlights the component that addresses youth at higher learning institutions

The Committee was also concerned at the declining number of Coloureds and the rate of dismissal of Blacks.

(6) Employment Equity Awards system

The development of an employment equity awards system is meant to recognise employers who excel in developing and implementing strategies to eliminate unfair discrimination and promote equal opportunities, diversity and fair treatment in employment. The award system will be implemented at an appropriate time when sufficient progress is achieved in the implementation of employment equity. This would be determined by the second Commission in consultation with the Minister.

The Committee was concerned about whether the legislation was tight enough in terms of enforcement, especially in relation to awards being an incentive to compliance with legislation. The Director-General review system will serve as a tool to enforce substantive compliance in a manner that is legally binding.

(7) Review of employment equity regulations

The DOL acknowledged that there were specific areas in the regulations that will have to be addressed. This was part of the identified problems experienced by the employers in the implementation of the legislation. The amendments to the regulations would help to improve data collection and strengthen the capacity to enforce the Act.

(8) Wider social developments

Part of the deliberations brought to light certain developments in wider society that impinged on the implementation of the Employment Equity Act. These included the Black Economic Empowerment initiative. The focus was on the way in which the BEE codes could contribute to empowerment, employment equity, transformation and economic growth.

The BMF was concerned that in the 10 years that the Commission had released its recommendations, corporate South Africa was still nowhere near targets for Affirmative Action (AA) that were suggested by the Affirmative Action Blueprint. The employment equity debate had since shifted, and therefore there was need for a review of what employment equity entails and how it fits into the Broad-Based Black Economic Empowerment (BBBEE) scorecard.

All companies in the respective sectors need to meet the BEE Charters that are set for employment equity. Due to the significance of the BEE scorecard and related BEE codes for tenders and big private sector contracts, most employers were more concerned about the Charter requirements for employment equity than their own employment equity plans. The BMF appealed to the Committee to investigate ways in which the BEE process could be used to stimulate and re-ignite the employment equity process and targets.

The following proposals were made:

* A review of the overlap of mandates of the institutions that enforce Section 9 of the Bill of Rights. These include the Commission, Commission on Gender Equality, the Office on the Status of Women and Disabled Persons and other related institutions.

* A renewed campaign and drive to enforce employment equity compliance under the supervision of the DOL. This should be a partnership initiative between the DOL, organised labour, Black business and interest group organisations. These bodies should work together to identify and eliminate all instances of unfair discrimination in South Africa whilst enforcing compliance with the Act. A 24-month campaign with various roles for different stakeholders is recommended.

* There should be a link between the new BEE enforcement mechanisms of the Department of Trade and Industry and the employment equity inspectorate.

* The use of Accredited Rating Agencies to conduct inspections will alleviate the capacity problem of the DOL in terms of the quantity and quality of its inspectorate.

* The DOL should review Section 10 of the Act . This would entail the establishment of a common approach between the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) and the Act.

* The Committee and the DOL should engage in the BEE process to ensure that the new BEE Charters, their employment equity targets as well as BEE Codes are aligned and advancing employment equity.

* The DOL should set up a commission of enquiry into racism and other forms of unfair discrimination in South Africa. The DOL should be given a one-year mandate to review incidents and cases of racial discrimination in the workplace.

* The proposed commission of enquiry should collect valid and reliable statistics on the demographic profile in all the major sectors of the economy.

The Committee emphasized the importance of revisiting the unpacking of employment equity and affirmative action policies, and recommendations put forward by the BMF.

The submission by the CGE included the findings of the research conducted by CGE in 2003 on gender and private sector, the census on South African Women in Corporate Leadership which was commissioned by the Business Women’s Association of SA (BWASA) in 2004.

The CGE in collaboration with the Commission conducted a pilot study on employment equity at workplace. Twenty companies were selected from a range of sectors, some traditionally male dominated and others female dominated. A detailed final report will be made available to the Committee as soon as it is finalised.

The Committee noted that the issue of casualisation required much attention. Women are often the most vulnerable and most affected by casualisation. According to the DOL, casualisation and other atypical forms of employment are currently at NEDLAC. The CGE recommended that employment equity forms should be amended to reflect details of non-permanent employees.

The employment equity reporting procedures are largely quantitative. It was proposed that the reporting procedures include any aspect of gender-mainstreaming, if they have been achieved.

The BEE initiative seems to benefit Black middle-class men, marginalising women. The CGE is of the view that if it is meant to be broad-based, a gendered analysis of women’s lives should take place. There was a concern that in most cases women in BEE ventures were used for fronting. It was suggested that the DOL introduce a "stick" for companies to enforce gender equality.

In relation to programmes that inform women in rural areas, workshops were conducted on issues relating to gender-based violence, employment equity and HIV/AIDS. A total of 25 workshops were conducted in each province.

The Committee noted that the Gender Policy Framework was not implemented in South Africa, and that there was a limited awareness or no knowledge of such policy, even within government itself.

No follow-ups were done on what companies reported, especially regarding their employment equity plans. It was proposed that companies be made accountable and more committed to their plans.

The construction industry was identified as still being male- dominated with a high concentration by White males.

To enhance compliance with the Act, the DOL should issue frequent awards of excellence and provide incentives to companies who have successfully implemented employment equity in order to encourage other companies to follow suit.

The Committee noted that sexual harrasment was still a challenge at the workplace. There were a number of cases that had been brought to the attention of the CGE.

According to the analysed employment equity reports received in 2003, people with disabilities constituted 1.35% of the workforce. The government set a 2% target for the employment of people with disabilities for the public service to be reached by 2005. Indications suggest that very little was being done achieve the 2%target. The challenge is for the public service to increase the momentum to reach the 2% target by 2005.

One of the challenges identified was to establish a link between skills development and employment equity on disability at workplace level. The link between skills development and employment equity for the intergration of disabled people is not visible.

To address some of the challenges, the DOL was in a process of translating all codes of good practice and technical assistance guidelines into all official languages. The DOL will assist the DPSA in preparing and facilitating training workshops for National and Provincial Departments on TAGs on the employment of people with disabilities and the integration of disability into preparing, implementing and monitoring of employment equity plans.

It was noted that insufficient progress was made by employers with respect to disabled people. The DOL should introduce vigilant enforcement strategies for employers to comply and implement a sustained, aggressive advocacy strategy that would focus on the employment of people with disabilities.

The Committee was concerned that no racial distinction was made in relation to people with disabilities during the crafting of the legislation.

A concern was raised about the negative perception from certain employers about people with disabilities, and the fact that most employers claimed not to understand the definition of "disabled persons". The conditions under which disabled people worked were expected to be the same as those of people who were not disabled. It was suggested that the government launch a campaign which would set time frames for departments to provide jobs to disabled people. The latter should be encouraged to register with the DOL. The Committee noted the non-reliability of data on disabled people. It was suggested that the Commission engage with Statistics SA on how best to improve the research methodology.

With respect to the reinforcement of training, the Committee suggested that the DPSA consider partnership with the Department of Public Service and Administration for training on codes of good practice in the public service. Members of Parliament could do advocacy in their constituencies on the code of good practice on disability.

DPSA affirmed its commitment to work with government in looking at innovative ways in which the challenges raised could be met.

BUSA noted with concern the declining numbers of Black middle management, and the codes that were not released collectively. It was proposed that the reporting requirements for the Act, Skills Development Act and codes be similar. BUSA affirmed its commitment to address the challenge raised around the disabled people and was concerned that transformation was moving at a slow pace.

BUSA welcomed the government’s position that small business should voluntarily submit employment equity plans.

The Committee also received a presentation on the case study by Woolworths. The project started in 2003 and included 101 hearing impaired and deaf employees in 16 stores. Woolworths viewed this as adding value to business and that hearing impaired and deaf people could play a meaningful role in society.

Recommendations

(1) The Commission should be resourced and capacitated.

(2) The DOL should conduct effective inspections at companies for the latter to comply with the law.

(3) The DOL should more effectively publicise companies that comply with employment equity requirements.

(4) The Committee should engage with the DOL to revisit the recommendations made by the stakeholders during the consideration of the annual report of the Commission.

(5) The Committee should monitor companies that submit their employment equity reports after the closing date.

(6) The DOL should brief the Committee after the submission of employment reports has been completed.

Interaction between the Commission and DOL should be enhanced.