Deputy Minister Phathekile Holomisa: Employment Equity breakfast session

Deputy Minister of Labour Nkosi Phathekile Holomisa's address: Employment Equity Breakfast Session

Programme Director, this unprecedented event occurs at an opportune time. April the 25^th saw the release of the annual Employment Equity Commission report. Sadly, the report confirmed what has become a predictable trend. Workplace transformation is painfully slow, particularly in the private sector. The top positions are still firmly held by white people, predominantly white males.

The report depicts that 78.6% of top management is white males, a gloomy state of affairs indeed. Previously marginalised groups remain relegated to the lower positions of authority.

It is against the backdrop of this report that the Minister announced that the Department would be intensifying its enforcement strategy to improve compliance. We would not shy away from taking flouting employers to the Labour Court and inflicting penalties as prescribed by the law. The Department is keen to balance the heavy handedness with structured assistance for employers that are eager to comply.

Programme Director, at the dawn of democracy one of the lofty tasks that faced the democratic State was the repeal and amendment of the legislation of the apartheid state through a basket of progressive labour laws.

The other undertaking was to ensure that Constitutional imperatives were realised through the promulgation of the new legislation which had to give effect to the Constitutional obligations of the new State. Amongst key legislation, the EEA was promulgated. Its fundamental aim was to outlaw unfair discrimination at workplaces and drive towards substantive achievement of workplace equality. The inclusion of affirmative action measures remains key in this regard.

In respect of matters of workplace equity, we continue to be confronted with what many have termed an Irish coffee syndrome:  “Black coffee at the bottom, thick white cream at the top and a sprinkle of dark coffee granules. The layer of cream will float without the coffee mixing.” I am certain, Programme Director, that we can visualise the picture I am trying to paint. Clearly, the status quo cannot continue unchalenged. The ideals embodied in the Employment Equity Act intend to address the disparities of the past and to propel us towards a more transformed state.

Programme Director, Section 9 of the Constitution of the Republic of South Africa states that:

“Everyone is equal before the law and has a right to equal protection and benefit of the law.”

The provision further states that;

“Equality includes the full and equal enjoyment of rights and freedoms. To promote the achievement of equality, legislative and other measures, designed to protect persons or categories of person disadvantaged by unfair discrimination, may be taken.”

The Employment Equity Act is born of the above provision.  It is born of a desire for you and I to ensure the creation of a civilised and just society, characterised by freedom, equality and human dignity. The envisaged state cannot be achieved by the efforts of Government alone. We are in this together, hence the theme of this breakfast session;

“Working together towards a transformed labour market.”

Now, this begs the question: what is a transformed labour market?

A transformed labour market denotes a rehabilitated labour market in form, nature and appearance. It means a labour market where the disabled, who were traditionally deprived of access to equality and promotion in the labour market, now have access and can benefit from the provisions of the law.

It means a labour market that is committed to the promotion of the accessibility of top positions to women, a labour market that recognises that women too are capable, in their own right, free of tokenism, of reaching and controlling the commanding heights of our socio-economic structures; and finally, it means a labour market that is devoid of favouritism of one group of people over others.

Programme Director, in working together towards a transformed labour market we should identify our obligations to ensure that the Constitutional vision is attained. Frances Wright, a Scottish writer, stated, and I quote: “Equality is the soul of liberty.

There is, in fact, no liberty without equality,” close quote. Programme Director, as government we remain relentless in our pursuit of substantive equality. We believe this will give us substantive mileage in our quest for a liberated people. Government has laid the foundation by legislative means to ensure the availability of a framework within which transformation of the labour market must occur.

We remain committed to bring everyone on board. The Department of Labour has designated certain inspectors, appointed in terms of section 63 of the Basic Conditions of Employment Act, as Employment Equity Inspectors. The purpose of these inspectors is to:

Inspect the designated employers to ensure compliance with the Employment Equity Act. Furthermore, these inspectors  review the designated employers as required by sections 43-45 of the Act to establish their level of substantive compliance with the Act, thereby aiding with the transformation of workplaces. These inspectors have been in operation since 1998 after the promulgation of the EE Act. 

Programme Director, allow me to reflect on some statistics of the financial year 2015-2016

We had set a target of inspecting 4176 employers to determine their compliance with EEA (procedurally), and we were able to inspect 5031 workplaces.

5031 employers were inspected against a target of 4176

Procedural inspection is directed at determining employer’s compliance in relation to technical aspects. The above aspects relate to preparing an Employment Equity Plan, establishing and consulting with EE forum, appointing an EE Manager, reporting to the Director General and displaying the summary of the Act at your workplace. In simplest terms it means compliance with documentary requirements, appointments and reporting.

Out of the 5031 employers inspected 1120 (22%) were found to be non-compliant. These were issued with compliance orders or undertakings (where they were willing to comply). On expiry of the notices 30 designated employers (0’5%) continued to be non-compliant and in terms of the Act a maximum fine of 1.5million was applied for to the Labour Court. On cases already heard the Labour Court granted a fine of between R100 000 and R500 000 depending on the circumstances and representation on each case. The Labour Court granted a maximum fine of 1.5million to two employers.

822 employers were reviewed against a target of 750

Although the compliance levels had a strong showing, we remain immensely concerned that real transformation is not taking place. We believe that this can only happen if issues of EE are accepted as workplace values rather than an irritation to be endured and complied with. These compliance levels, although encouraging, remain superficial. We would like to call on employers to deal with the real challenges.

Programme Director, procedural compliance with the EEA remains mundane and less cumbersome. I take this time to make a clarion call that, at a minimum, you should strive for compliance in this regard.

With regards to companies that were subjected to the Director General Reviews the following is the position:

The target was 750.

The reviewed number was 831. Out of all those reviewed 86% did not comply and recommendations were issued in that regard; - a sad state of affairs indeed. A recommendation in terms of the Employment Equity Act refers to findings and remedial action expected to be implemented by the employer. This is a legal instrument used to enforce compliance.

A DG Review process is a rigorous process aimed at establishing the employer’s substantive compliance with the Act and the extent of transformation of the workplace. This relates to the extent to which affirmative action measures have been implemented; the extent to which employment barriers have been removed; and the extent to which there is fair representation of people from designated groups in all occupational levels.

As I indicated earlier, programme director, the report of the Commission on Employment Equity painted a pitiful state of affairs. I will call on you to study the report for yourselves as it is in the public domain. If this report is anything to go by, "isende le ndlela". We have our work cut out for us, esteemed stakeholders. 22 years into democracy and 18 years after the promulgation of the Employment Equity Act mean without argument, that this trajectory cannot continue unrestricted.

The notion of working together towards a transformed labour market would go a long way in contributing towards a transformed society. Programme Director, this begins with the transformation of workplaces. Without the transformation of workplaces, the labour market will not transform and we would be unlikely to realise a transformed society as per National Development Plan Outcome 14.

Through the transformation of the labour market and society, social cohesion may be achieved.

We have declared a zero tolerance against workplaces which fail to report on their EE plans this financial year. To that end, we are busy prosecuting employers that failed to report in 2015.  We are intolerant of those intransigent designated employers who refuse to at least have a plan. We now institute outright prosecution to nip this undue behaviour in the bud. We are also prosecuting those employers that reported but do not have plans, as this is a criminal offence.

Programme director, it is my conviction that compliance with labour laws in general, and the EEA in particular, is preceded by a positive predisposition. I would like to register my appreciation to you, dear stakeholders, for turning up today. Yours is a step in the right direction. I further appeal that we work together for the advancement of our equity and equality agenda. It is the right thing to do. 

 I thank you, Enkosi!