12 MARCH 1998
The Employment Equity Bill was published in the Government Gazette on the 1st of December 1997. The Public was given two-and-a-half months to comment on this Bill. The closing date for public comment was on the 16th February 1998. These comments have now been forwarded to NEDLAC, which is where the negotiations on the Employment Equity Bill (EE Bill) are under-way.
PROCESS OF DEVELOPING THE EE BILL
The process that was adopted in the development of the EE Bill was arguably the most extensive and participative of all our Bills. The process took more than two years and it began in 1995 when I established the Affirmative Action Policy Development Forum. This was a forum of the key social partners, including some NGO's that have an interest in the area of employment equity. This extensive consultation process was maintained throughout the past two-and-a-half years and it included a number of workshops and seminars. Business was involved in the process from the beginning, and they were one of the key participants in the Affirmative Action Policy Development Forum. This is why the EE Bill came as no surprise to big business when it was released, they were the co-architects of it. The general support by business for the Bill has continued and has in fact strengthened during the NEDLAC negotiation process, in spite of some earlier confusion that was orchestrated by the Institute of Race Relations' misguided opposition to the de-racialisation of employment.
URGENT NEED FOR THE EE LEGISLATION
There is no country at present that needs more urgent intervention by government to de-racialise its workforce than South Africa does. All the key labour market studies over the past two years, from the Presidential Commission on the Restructuring of the South African Labour Market (1996) to the ILO Country Review (1996) arrive at the same conclusion with respect to the gross and very deep racial and gender differentials amongst South Africans in the area of employment. In spite of this glaring need, a storm in a tea cup has been created by some reactionary political parties and institutions about the issue of race. These anti-transformation forces confuse the issue of de-racialisation with re-racialisation. Any efforts to address the fact that blacks, who are in the majority in this country, are still denied opportunities in employment, because of their race, is rejected on the ridiculous grounds that this would be racist. This leads to a circular and fruitless argument, whereby we would never be able to address the racial inequalities because we can no longer talk about race. The de-racialisation of opportunities and practices in employment has to take place and this, in fact, is the essence of the transformation of South Africa.
Whilst the continued preference for white males in some sport codes is so despicable as to warrant a special presidential commission, the denial of opportunities to the majority in employment is worse because it impacts directly on peoples' livelihoods. The continued denial of opportunities to women, blacks and people with disabilities in the workplace affects their prospects for advancement and development, which in turn affects their motivation and commitment which has negative effects for productivity and therefore economic growth. As a result the biggest loser from discrimination and the denial of equal opportunities, in the long run, is South Africa itself. The need for government intervention has never been greater. But, are we overly prescriptive?
PRESCRIPTIVENESS OF THE BILL
The anti-transformation lobby has made a lot of noise about the "prescriptiveness" of the Employment Equity Bill, again more out of ignorance than out of a realistic and un-biased assessment of the Bill. Even executives from industry and commerce have applauded the non-interventionist approach of the Bill. In his response to the Bill, NicoVermeulen, who is director of the important National Association of Motor Manufacturers, finds the Bill, "Not overly prescriptive in terms of setting targets and determining quotas". This, coming from a major economic sector in South Africa, is a serious vindication of the balanced position that we have adopted. Yet the disparities in income and occupational representation between the various races and sexes in South Africa are huge enough, on their own, to justify a far more rigid and prescriptive approach which the EE Bill has stayed shy of. The latest statistics on managerial representation in South Africa, continue to tell the same story:
LATEST MANAGERIAL STATISTICS
In a recent article, Angus Bowmaker-Falconer of the Breakwater Monitor, points out that, as of the end of last year:
87 % of all management (in the private sector) was still white 93% of all executive managers were white 92% of all senior managers were white Africans made up only 6% of all managers Women made up 14 % of all managers (77% of these being white women)
Mr Bowmaker-Falconer points out that these are statistics from large corporations, which happen to be the most progressive ones, the situation is worse in medium-sized corporations. So where does the notion of progress come from? A close and un-biased examination of the statistics tells a completely different story:
Two years ago, the Breakwater Monitor made a projection regarding management in the year 2000. They stated that amongst the top 15 organisations (which are performing a good deal ahead of the national norms) it would require a 60% increase in Black Management representation, each half year, in order to achieve an overall 32% representation of black managers by 1998, and 50% by the year 2000.
Mr Bowmaker Falconer, of the Breakwater Monitor, points out that this rate of change has not materialised and he also notes that, "it was never predicted that it would".
Now the above statement is in stark contrast with what Mr Tony Leon said in a Sowetan article. Mr Leon, in his argument against the Bill, misquoted the Breakwater Monitor, and argued that it had predicted that black managers would be 50% of management by the year 2000, and therefore, he argued, the EE Bill was not needed. It would appear that there are a lot of people that Mr Leon and the DP have to apologise to!
In any event, even if the impossible were to happen, and management would be 50% black by the year 2000, this would not negate the need for the bill. This Bill is not just about getting blacks into managerial positions. It is about eliminating the differentials between women, blacks and people with disabilities in all areas of their working lives. It is also about eliminating all unfair discrimination against people because of their race, sex, sexual orientation, pregnancy, marital status, and so on. Our detractors have chosen to conveniently ignore the vast scope of the Bill, and have reduced it into a numbers issue. If our pre-occupation was with statistics, we would have published a list of demographic figures for each region and for each sector in industry and simply demanded that every company should reflect these.
Some have argued that the Department of Labour will have too much power. There has been talk of the Director General becoming the "Super Chief Executive" of companies, as well as talk of unwarranted interference in "perfect labour markets". The Bill provides a number of checks and balances, and the meaningful role that will be played by the Department in monitoring and enforcing the legislation will be well-balanced by the role that will be played by the independent statutory mechanism and other interested parties.
CHECKS AND BALANCES
In the United States and Canada, where they also have employment equity legislation, and where they are as equally concerned about productivity and economic growth, the governments play a very active and direct role in monitoring and enforcing compliance with employment equity. In the United States, the Office for Federal Contract Compliance Programmes (OFCCP), is one of the largest divisions of the US Department of Labour. It employs some 740 employees, including compliance officers and administrative judges, and its sole purpose is to enforce compliance with affirmative action regulations amongst 250 000 companies. Why should the Department of Labour not play a strong monitoring and enforcement role in South Africa? Here we are dealing with a case where it is the rights and opportunities of the vast majority of the population that are at stake. Our differentials are far more extensive and deep-rooted and they have a more direct and immediate socio-economic impact. Yet we have the CCMA and the Labour Court which will mediate and adjudicate on EE cases.
This is why, in our case the enforcement has to be accompanied by big carrots and big sticks. This brings me to the issue of penalties, which has also been interpreted in an unbelievably biased and selfish way.
INCENTIVES AND PENALTIES
We are in favour of incentives and we have stated categorically in the Bill that the Commission for Employment Equity will also look at rewards for good performance. We have also linked the issue of state contracts (worth R56 billion per annum) to compliance with the EE Legislation. You cannot just reward good performance and ignore bad performance. This goes against the grain of the principles of behavioural modification. Even in advanced, free-market economies, like Canada, non-complying companies are liable to a fine ($50 000 in the case of Canada). In the United States, the Office of Federal Contract Compliance Programmes has been able to recover more than $100 million in punitive damages against discriminating companies, over the past four years. The maximum permissible fines that we have set are meant for the companies which do not care about incentives and which will not take the elimination of discrimination and the equalisation of opportunities seriously (the very bad rabbits that are also allergic to carrots!). It is important to point out that these fines are only the maxima and are not necessarily what the Labour Court would impose in all instances. Such penalties should only worry the rogue employers who are hell bent on continuing their discriminatory practices. They should not worry the progressive companies that are serious about transformation, any more than you and I are worried about the increasing of penalties for road offences, because, as responsible road users, we have no intention of violating the rules.
It is for this reason that we welcome the support that both business and labour have given to the Bill, and we condemn the continued justification for discrimination against blacks, women and people with disabilities which the Institute of Race Relations has been championing. We call on white South Africans to support measures to eliminate discrimination and to equalise opportunities for the other South Africans. They must support these measures because they will ensure long-term stability in the country and they will also ensure that we develop skills and competencies that will enable us, as a country, to sustain our growth and development. It is very short-sighted for whites to want to cling to special and undeserved privileges that were conferred to them during apartheid, merely on the basis of their skin colour. This is yet one opportunity for white South Africans, in particular, to embrace transformation, in deed, and not just in empty words.
Contact Samantha Henkeman on 083-4592041 or Tel: (012) 309-4443, Fax: (012) 309-4096