B M F
BLACK MANAGEMENT FORUM
DEVELOPING MANAGERIAL LEADERSHIP
Affiliated Member of
Business Unity
The Forum, 3rd
P O Box 781220 SANDTON 2146 SOUTH AFRICA
WORKPLACE DISCRIMINATION: BMF
SUBMISSION TO PORTFOLIO COMMITTEE ON LABOUR 05 SEPTEMBER 2007
Introduction
The
The BMF salutes the Parliamentary
Portfolio Committee on Labour for providing the nation with another opportunity
to submit its views on the status of employment equity in our country. We as the BMF can state without any fear of
being accused of arrogance or self-aggrandisement that we have always been at
the forefront of the struggle for the empowerment of blacks in the
workplace. This struggle saw us leading
the “Affirmative Action” debate in the early 1990’s, through an Affirmative
Action Commission, culminating in the release of the Affirmative Action Blue
Print 1993. This was an independent, non-statutory commission that was set up
by the BMF and it produced, among others, what was later to be known as the
Basotho Hat formula (for affirmative action targets). Worryingly, 13 years
since this Commission released its recommendations, corporate
Employment
Equity
The BMF went on to play a central
role in the drafting and the subsequent legislation of what later became known
as the Employment Equity Act. In an
unprecedented move, the BMF was given a special seat at NEDLAC during the
negotiations on the Employment Equity Bill (in 1998) and it provided some
significant inputs in the drafting of the Employment Equity Act. Not only did it play a role in the
negotiations from the other side, but the Director for Employment Equity (in
the Department) at that crucial time was himself a BMF “graduate” and a
committed transformation activist; a tribute to the skill and expertise that
the BMF had developed.
Disrespect
for the Rule of Law
There is a widespread lack of
compliance by the companies to the Employment Equity Act. It should therefore
make logical sense that more companies are taken to court for contravening the
laws of the country. It therefore defies logic that we hardly hear of cases in
the
Our members responsible for HR
functions within companies have told the stories of how inadequate these
inspectors are in dealing with matters of employment equity and their inability
to strategically engage with the numerous HR policies. There is a need for an
urgent review of the quality and powers of these inspectors.
Black
Economic Empowerment
It was the BMF again that realised the need
for a more broad-based approach to “affirmative action” and which facilitated
the establishment of the Black Economic Empowerment Commission (BEE Com). The
BEE Commission arose out of a BMF Resolution, calling for such a Commission, in
1997. The Commission’s Report (2001) went a long way in reshaping the “black
economic empowerment” landscape. Most of its recommendations ended up being
endorsed by the government in its Broad-based BEE Policy (Department of Trade
and Industry, 2003). The ground has now shifted in the “EE” debate and there is
a need for some serious review of what it still entails and how it fits into the
BBBEE Scorecard; the various BBBEE Charters and the new BBBEE Codes.
In 2005 the BMF submitted to the
Labour Portfolio Committee that: “ It is futile, we submit, for the
Parliamentary Portfolio Committee, to debate employment equity in isolation
from all the latter developments, which have, to a very large extent, absorbed
EE within their approach, whilst taking precedence over it. Most of the BEE
Charters, for instance, have got targets that they set for employment equity,
among others, that all companies in that respective sector need to meet. Due to the significance of the BEE Scorecard
(and the related BEE Codes) for tenders and large private sector contracts,
most employers are now more concerned about the Charter requirements for EE and
the than their own EE plans, Employment Equity Act, its plans; reports and
compliance processes. It is in this context that the debate needs to take
place. We reiterate our previous submission that the Portfolio committee
investigate ways in which the BEE processes can be used to stimulate and
re-ignite the EE process and targets. Our recommendations therefore take place
in the above context.
The Codes of Good Practice were
promulgated in December 2006. We are
here today at the invitation of the Parliamentary Portfolio Committee on Labour
once again to submit on RACISM IN THE WORKPLACE and the situation in our
workplaces has worsened. We are concerned and disturbed about the slow pace of
transformation in corporate
BEE
Participants
There is a need to put more focus on
the black investors who are acquiring equity in companies through Black
Economic Empowerment transactions. These BEE shareholders cannot escape the
responsibility of ensuring that economic citizenship for black people is
realised. These black shareholders, in spite of the fact that they classify
themselves as businesspeople that happen to be black or BEE groupings, should
know that there are high expectations that they have to bring transformation to
those companies.
The percentages of equity ownership
by black people in those companies should reflect change or transformation.
Therefore, the higher the black ownership the higher the change expectations in
the workplace. The operational involvement and value-add of the black equity
owners must be put into question.
The lack of contribution to the
Transformation Agenda by black companies leaves much to be desired. In fact,
they are used to rubberstamp and perpetuate the status-quo. The majority of
them can be classified as Co-opted Black Apologists.
1.0 Whereas:
1.1
The Employment Equity Act was passed in August 1998 and it
was promulgated from May to December 1999; whereupon all designated employers
are to submit their first EE Reports in June 2000 (those who employ 150
employees or more) or in October 2000 (those who employ less than 150);
1.2
The Commission for Employment Equity (CEE, hereafter) was
established in May 1999, to inter alia
advise the Minister (of Labour);
2.0 Noting:
2.1
The continuing flagrant violation of the provisions of the
Employment Equity Act, demonstrated in more designated employers (as indicated
by decline in number of reports for the period 2000 - 2006) failing to submit
EE Reports that comply with the requirements of the Act,
2.2
The continued perceived lack of capacity in the Department
of Labour as far as its operational and human resources capacity are concerned
(including the quality and quantity of its Inspectorate),
2.3
The consequent general state of non-compliance in the
country by employers, complacent in their common understanding of the above
constraints,
2.4
The consequent hesitation by the DOL to enforce EE Act to
designated employers, notwithstanding the wide-ranging powers and jurisdiction
that the EE Act confers on Labour Inspectors (sections 36 – 38) and on the
Director General of Labour,
2.5
The virtual absence of any “cases” that have been taken through
the inspection process, the DG review and eventually through the
3.0 Concerned
3.1 The June
2007 Employment Equity Commission report statistics revealed that white women
have not only reached but have surpassed their Economically Active Population
target by far. What does this mean? The
BMF proposes the unequivocal acceptance of this fact that Employment Equity can
work if instituted and adhered to by companies; hence the confirmation of this
fact through the deployment of white Women.
We
therefore assert that white women bow out of Employment Equity and that this committee
help institute an amendment to the Employment Equity Act through a SUNSET
clause for white women. This would help re-focus targets on people with
disabilities, black people and in particularly black women who are at the
lowest end of their EAP targets.
3.2
The resultant lack of any yardstick for evaluating the EE
targets that companies have been developing; and for guiding them in advancing
the various designated groups (as Section 42 recommends);
3.3 The lack
of a qualitative and in-depth approach to employment equity and the tendency to
focus on “procedural compliance” and quantitative aspects whilst not reviewing
the real challenges that blacks and other designated groups are faced with in
the respective industries. The BMF is inundated with anecdotal stories of
frustrated, besieged and demotivated black people in the workplace despite 13
years of democracy.
3.4 Linked
to the above concern, is also concern about the lack of a pro-active approach
to enforcing EE and non-discrimination, rather than the re-active approach of
“inspection” when there is a problem.
3.5 The cost
of taking discrimination cases to the
3.6 The
inconsistent jurisprudence in
3.7
The consequent difference in the remedies that are available
for victims of discrimination. Victims of discrimination outside of work, under
the PEPUDA, have access to Equality
Courts, whereas those who are discriminated against “in employment” do not have
this remedy (they must go through the internal process; the CCMA, whose constraints
were noted above and ultimately the Labour Courts). This inconsistency in
remedies and the “territorial approach” is despite the fact that the “mischief”
that both Acts (the PEPUDA and Chapter II of the EE Act) seek to redress is the
same and that both Acts seek to further the same provisions of the same Bill of
Rights (Section 9(3); upon the same society.
3.8
The pervasive and insidious nature of discrimination in
virtually all the professions in
4.0 Recommend:
4.1 The BMF
welcomes the review of the overlaps of mandates of the institutions that
enforce Section 9 of the Bill of Rights.
4.2 A renewed
campaign and drive to enforce employment equity compliance under the
supervision of the Department of Labour. This should be a partnership
initiative between the Department; organised labour; black business and
interest group organisations to work together to identify and eliminate all
instances of unfair discrimination in South Africa; whilst enforcing compliance
with the EE Act. A 24-month campaign with various roles for the different
stakeholders is recommended.
4.3 A link
between the new BEE enforcement mechanisms of the Department of Trade and
Industry and the EE inspectorate. This should include the extension of the
roles and responsibilities of the BEE Rating Agencies; as contemplated in
Statement 050 of the Broad Based BEE Codes of Good Practice (DTI, December
2004) to also conduct inspections on compliance with the various provisions of
the EE Act. The BEE certification process, which is envisaged in section 54 of
the EE Act, now overlaps with the issuing of compliance certificates, which the
BEE Policy and Codes have conferred on BEE Rating Agencies. The latter will
also be fully monitored and accredited by the South African National
Accreditation Systems (SANAS) which is part of the Department of Trade and
Industry. There is therefore a built-in quality assurance system; including
very rigorous standards for accreditation. We believe that an integrated
approach should be adopted rather than to have various certificates issued on
the same EE and other related components. BMF also recommends a Forum, through which the
DTI and other government departments, where prospective black directors, managers
and employees in general who are approached by white firms to enter into BEE
deals be provided with state of the art advice, thus avoiding the rampant “fronting” by
companies.
4.4 The use
of Accredited Rating Agencies to conduct EE inspections will also immediately
alleviate the capacity problems of the DOL (in terms of the quantity and
quality of its inspectorate) whilst costing the state nothing (NB: companies
will pay for the services of the ratings agencies, like they pay for auditing
services.).
4.5 The
review of section 10 of the EE Act and a consideration for allowing class
action law suits so that dealing with discrimination ceases to be an
“individual grievance issue”. This will entail the establishment of a common
approach between the Promotion of Equality and Prevention of Unfair
Discrimination Act (PEPUDA) and the EE Act, particularly the Equality Courts of
the former. This recommendation is consistent with the recommendations in 4.2
and 4.3. above (because the Human Rights Commission and the Department of
Justice are the custodians of the PEPUDA and the Equality Courts).
4.6 We would like to say the time has come for our
call of 2005 to be implemented, the call that says: “The setting up of a
Commission of Enquiry into racism and other forms of unfair discrimination in
4.7 The BMF would like to re-iterate its call on
the establishment of “The Commission of Enquiry, recommended above, should also
collect, or cause to be collected, valid and reliable statistics on the
demographic profile in all the major sectors of the economy. We propose that the
Commission be appointed by the President and be given powers to subpoena and
summon institutions and individuals. The
Commission should also have the powers to recommend action in cases of
violation.”
CONCLUSION
In South
African Workplaces today, we have observed the following that is most
revealing:
The pace of change being very slow is not by mistake but by design.
The BMF believe there are a lot of consequences to this slowness that needs to
be investigated.
There is an
enormous underutilisation of black skills and talent in Corporate South Africa
today. In fact, underutilisation of black talent is a reflection of subtle
racism in the workplace. The matter further complicates as the new black
entrants’ skills are not nurtured in the workplace due to companies who have
made the maximisation of profits their focal point.
We thank the
Parliamentary Portfolio Committee on Labour for giving us the opportunity to
make this submission.
END