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Speech by Labour Minister Mildred Oliphant 

11 September 2012

Commission for Employment Equity Report – 2012

Click here to download the Commission for Employment Equity Report – 2012 (56 Pages) 

Speech by Labour Minister Mildred Oliphant


Director-General of Labour;

Senior managers and officials of the Department of Labour;

Chairperson of the Commission for Employment Equity;

Members of the Commission for Employment Equity;

Members of the media;

Ladies and gentlemen;

Welcome to you all!

Before continuing, may I give expression to the Freedom Charter, a key cornerstone of our democracy where on 26 June 1955, it was declared that all shall be equal before the law in South Africa.  This declaration called for the repeal of all laws that discriminate on the grounds of race; colour and belief.  These aspirations placed equality, human dignity and human rights at the core of our democracy.  

The Employment Equity Act was passed by parliament on 21 August 1998 as one of the key interventions introduced to give effect to the Constitutional provisions relating to the achievement of equality in our country.  This Act was the first piece of equality legislation to be passed by Parliament, which was promulgated in October 1998.

A rather obvious observation in the workforce of our country, which continues even today, are the gross under-representation of black people, women and people with disabilities in key areas of the labour market, for example in management and science and technology-based occupations.

Employment equity is therefore not only a moral and human rights imperative; it is a pre-condition for the achievement of sustainable development, economic growth and equality in the country, which should be supported by descent work initiatives.  Pro-active measures are required by organisations to develop and harness an inclusive and diverse workforce that is free from unfair discrimination and is reasonably demographically representative.

It is very clear from the report that males and White people are more likely to be recruited and promoted when compared to any other group.  Progress on the employment of people with disabilities still remains rather dismal when compared to the other designated groups. 

Statistics provided by the Chairperson today are both exciting and disappointing at the same time.  On the one hand, positive signs are evident at the Skilled and Professionally Qualified levels where equitable representation is likely in the not so distant future if current progression patterns continue.  On the other hand, the same cannot be said for the two most upper occupational levels, i.e. at the Senior and Top Management levels.  The workforce movements at these levels indicate that equitable representation will only be achieved in the distant future if current patterns continue – although Whites accounted for the highest amount of terminations, they also accounted for the most number of recruitments and promotions.

With employment equity we foresaw, or at least expected, some resistance from the private sector, but resistance to employment equity was not expect from any level of government.  Figures from reports received show the Western Cape Province as the worst performing when compared to all other provinces in terms of race at nearly every occupational level – it also shows that the Western Cape is also among the worst performing province in relation to Black women – and this is taking their provincial Economically Active Population (EAP) into account.  Ladies and Gentlemen, the Western Cape is performing badly both in the Public and Private Sector in respect of employing Black people, both men and women.

My department engaged in the Director General (DG) Review process from the beginning of 2006 to mainly assess the substantive compliance of employers.  During the past few years, the DG has been assessing the compliance levels of JSE listed companies, providing them with guidance, making recommendations and approving Employment Equity Plans (EE Plans).  In the 2011/2012 financial year a process was started to follow-up on companies already DG Reviewed in order to gauge the extent to which they were implementing their approved EE Plans and whether they are adopting fair remuneration strategies that does not have a male, female or disability bias, or a bias based on any other arbitrary grounds.

I note the outcomes of the Director-General Review follow-up process and the varied outcomes which revealed the following:

  • Some of the companies did not only reach their targets set in their approved EE Plans, but went even further in terms of representivity;
  • Resistance to provide all the information, in particular the Income Differentials to make a proper assessment of progress;
  • Some employers either moved very little or not at all towards the targets and goals set in their approved EE Plans;
  • Many of the employers, particularly CEOs, investigated remuneration disparities properly, acknowledged those discrepancies that may exist based on race and gender grounds, and have incorporated steps in their EE Plans to correct them now or in the not too distant future. 

My department is currently in the process of following up on the remainder of the companies already DG Reviewed.  Many more companies are coming forward on a voluntary basis requesting to be DG Reviewed because they are hearing of the benefits of the process from those who have completed it.

Having said that, I also want to applaud all the 7 companies mentioned in the report for their commitment to transforming their workplaces. We have recently read in the media how one of the retail company, Woolworths has been attacked by anti-transformation individuals and movements on their commitment to transformation. I want to reiterate that all Woolworths, like all other companies that are mentioned in this report must be deterred from pursuing their transformational objectives outlined in the Employment Equity Act.    There will always be those that hate to see integration in the workplace and society in general that seeks to find fault with those that genuinely implement employment equity as a means of addressing our painful past and imbalance in our society. As Government of South Africa and those that seek genuine transformation, we shall continue to encourage companies like Woolworths to continue with the transformation and integration of the society. 

It is important to highlight that Employment Equity Act is not only about Affirmative Action, but also about the elimination of unfair discrimination provisions – one of these being the management of the impact of HIV and AIDS in the world of work.  My department together with the Commission has reviewed the South African HIV Code of Good Practice published in the year 2000 and its Technical Assistance Guidelines to bring them in line with the ILO Recommendation 200 of June 2010.  I am pleased to announce that the Code and its technical assistance guidelines have been reviewed with the assistance of the ILO and NEDLAC constituencies.

In response to the slow pace of transformation as outlined in this report, on the advice of the Commission for Employment Equity, my department embarked on a process to amend the Employment Equity Act, which has now gone through the NEDLAC negotiations. The proposed changes include, amongst others:

The Promotion of fair treatment and Equal Pay for work of Equal value:

  Section 6(1) which prohibits unfair discrimination is amended to clarify that:

  • Discrimination is not permitted, either on any of the prohibited grounds listed in the section or on any arbitrary ground.
  • A new section 6(4) is inserted to:
  • To deal with differences in pay/conditions of work between employees performing the same or substantially the same work or work of equal value will amount to unfair discrimination unless the employer can show that differences are fair in relation to experience, skill, responsibility and qualifications.
  • Section 6(5) is inserted to enable the Minister to issue a regulation dealing with the criteria and methodologies for evaluation work of equal value.

Section 10(6) dealing with unfair discrimination disputesis amended to:

  • Allow employees an option of referring unfair discrimination cases for arbitration in the CCMA arbitration in two circumstances:
  • If the employee’s cause of action arises from an allegation of sexual harassment on a prescribed ground; or
  • Lower paid employees (those earning less than the earnings threshold prescribed under the section 6(3) of the BCEA) will be entitled to refer any discrimination claim to the CCMA for arbitration, whereas currently the CCMA can only conciliate on unfair discrimination cases.

The strengthening of the implementation, compliance and enforcement provisions of the Act:

Section 20 dealing with Employment Equity Plans is amended to ensure that:

  • All designated employers who fail to prepare and implement their EE Plan can be referred directly to the Labour Court by the Director General for a fine, without first securing an undertaking or issuing a compliance order.

Section 21 (EE Reports) is amended to ensure that:

  • Failure to submit an EE Report by an employer can be referred directly to the Labour Court by the Director General for a fine without securing an undertaking or issuing of a compliance order.

Written Undertaking (section 36(1) & (2)) is amended to:

  • make the power to request employers to make an undertaking discretionary; and
  • empower the Director General to apply to the Labour Court to make such undertaking an order of the Labour Court in instances of non compliance.

Compliance Order (section 37(1) & (3)) is amended to:

  • Clarify by specifying the sections to which a labour inspector has powers to issue a compliance order; and eliminates the step of objections to a compliance order by employers.

Provisions of Objections (section 39) and Appeals (section 40)against compliance order are repealed to:

  • Simplify and eliminate unnecessary mandatory steps in the enforcement mechanisms of the Act.

Assessment of compliance (section 42) is amended to:

  • empower the Minister to make regulations dealing with the assessment of compliance, including specifying circumstances in which it should be assessed by reference to the national or regional economically active population.

Section 45 dealing with DG Recommendationsis amended:

  • To empower the Director General to apply to the Labour Court for an order directing an employer to comply with a request made during a review of the employer’s compliance with the Act or a recommendation made as a result of such a review.

Lastly, but not least, the Fines/ penalties in Schedule 1 of the EEA are amended to:

  • Adjust the maximum fines that may be imposed for contravention of the Act to reflect the change in the value of money.
  • In addition, the employer’s turnover may be taken into account in determining the maximum fine that may be imposed for substantive failures to comply with the Act.

Having said that, it is important to note that the Employment Equity Amendment Bill has been approved by Cabinet at their meeting for tabling in Parliament.

Ladies & Gentlemen, let me take this opportunity to thank the CEE for its hard work and, at the same time, call upon all stakeholders to support the amendments to the Act because the more we resist, the more people will persist calling for change and transformation not only in our labour market, but in the society as a whole.

Thank you

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