Flawed employment equity regulations must be rejigged

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The Southern African Clothing and Textile Workers Union (Sactwu) is concerned about aspects of the draft employment equity regulations, and has written to the Department of Labour to express its concerns and request that the draft regulations be reconsidered.

Like other progressive trade unions, Sactwu is committed to a truly representative workplace. In this regard, we appreciate the government’s intention to speed up the process of deracialisation in the workplace, as management positions continue to be dominated by white people.

This is confirmed in the 14th annual report of the Commission for Employment Equity, which shows that progress towards employment equity remains slow.

Clearly more needs to be done. However, it is doubtful whether the draft employment equity regulations have captured the most appropriate way to achieve this.

We are concerned that many aspects of the employment equity regulations are not sufficiently considered. Some parts may even be the subject of legal challenge in the courts of law as being ultra vires, or beyond the powers that accrue from the Employment Equity Act.

For instance, while we support the elimination of unfair discrimination, it seems to us that the provisions in the employment equity regulations, which intend to address this matter – in particular B2(1) – are inappropriate, and the regulation is not empowered in terms of the Employment Equity Act. It should probably be in the act itself or in a code of good practice.

Our primary concern with the employment equity regulations, however, relates to regulation D3: the setting of employment equity numerical goals and targets.

This regulation is entitled “Determination of national and regional demographics for equitable representation”. Our concerns relate to the legal standing of this regulation, its logic, its implementation and outcomes.

First, it is not clear which section of the Employment Equity Act empowers this regulation.

Second, numerous questions arise relating to the logic of the regulation.

For instance, D3(2) states that where employers have 150 employees or more, they should use national demographics as the goal and target for employment equity plans for the upper three occupational levels (top management, senior management and professionally qualified), and an average of the national and regional demographics for the lower occupational levels (skilled technical, semi-skilled and unskilled).

For its part, D3(3) says that in companies of fewer than 149 employees, national demographics should inform the employment equity targets of the upper two occupational levels (top management and senior management), and an average of the national and regional demographics should be used for all the other lower levels.

Yet it is not clear why and how these distinctions have been made.

For instance, why is it deemed appropriate to have different equity target formulas for companies of different sizes, and what is it about these particular formulas that make them appropriate for these sizes? In the case of the upper occupational levels, why make national demographics inform targets and goals regardless of whether or not these demographics are different to regional demographics?

Or, in the case of the lower occupational levels, why it is thought better to set equity targets based on an average of the national and regional demographics rather than simply on the basis of regional demographics?

In any event, it seems the term “regional” is not defined in the Employment Equity Act or in the employment equity regulations. It is unclear what definition of “regional” employers may use when setting their targets. Does it mean that an employer can self-define a region that is not a province?

Third, we have concerns relating to the implementation and outcomes of the regulations.

It is unclear whether employment equity targets and goals may or must be implemented according to the demographic formulas outlined in the regulations.

For instance, in the sub-regulations which deal with this matter, D3(1) uses the word “can” in relation to using national demographics to create targets and goals (“in setting numerical goals and targets, employers can use the demographic profile of the national and regional economically active population applicable to them”).

Similarly, sub-regulations D3(2) and D3(3) use the term “should” in contrast to the term “must”, suggesting the sub-regulations are merely guidelines.

The use of such non-binding words is vague as it implies it may not be compulsory to use demographic-based profiles to set employment equity targets.

Yet whether or not these sub-regulations are binding, their implications are very concerning in the event that these targets are applied.

None of the employment equity formulas for determining targets and goals for all of the occupational levels enables transformation that speaks to the different contours of race and class as they manifest in different parts of the country.

In areas like the Western Cape and KwaZulu-Natal, which have very large populations of black people who are deemed to be “coloured” and “Indian”, respectively, and in which provincial “racial” demographics differ substantially from national demographics, employers implementing these targets will use formulas that will, to some extent, prevent “coloured” and “Indian” people from accessing occupational and transformational opportunities.

They would experience barriers to accessing ordinary blue-collar jobs in the lower occupational categories in their provinces, and more significant barriers for job promotion into higher-paid categories.

The detrimental impact is likely to be felt across industries and sectors – including the clothing, textile, footwear and leather industry, which has a very heavy presence in the Western Cape and KwaZulu-Natal.

It will culminate in greater marginalisation of “coloured” and “Indian” workers, and large numbers of previously disadvantaged people may be further disadvantaged.

We believe the problems with the regulations will provide ammunition to conservative forces who are hell bent on “proving” that the architecture of the labour market, its regulations and laws, are irrational and impede the prospects of job creation, which these interests claim a less regulated or unfettered labour market can offer.

A successful legal challenge of the employment equity regulations (even if only on technical grounds) will be championed as a substantive victory by those who oppose transformation.

The fact that this matter arises so close to the elections only makes it more attractive as a tool to garner support for these interests, or as an electioneering tool.

The DA has opportunistically grabbed at the problems in the regulations to advance its political interests, despite the fact that the DA shows little evidence of really being interested in transformation.

This is true in DA party structures. It is also true in the province in which it governs – the Western Cape – as Minister of Public Enterprises Malusi Gigaba showed using official Statistics SA data during the State of the Nation debate in February.

Since April 2009, while the DA has been in government in the Western Cape, 61 percent of the new jobs created in the Western Cape have gone to white people. This is despite the fact that white people constitute only 17.5 percent of the total provincial population.

While “coloured” people make up 53 percent of the provincial population, they have received only 31 percent of new jobs. As for black people, they constitute 28.5 percent of the population of the province, but have seen overall job losses since April 2009.

The problem of transformation in South Africa remains large. We believe transformation should be guided by the need to resolve the national question, by the need to contribute to nation building, and the imperative to advance our National Democratic Revolution. Yet the regulations do not necessarily provide the solution. They also appear poorly conceived.

We are of the view that it would be in the interests of the Department of Labour, the government, and workers in general, for these matters to be thoroughly reconsidered and debated in the National Economic Development and Labour Council before they are promulgated.

* Kriel is the general secretary of the Southern African Clothing and Textile Workers Union.


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