Workplace Discrimination: public hearings

LABOUR PORTFOLIO COMMITTEE
11 September 2007
WORKPLACE DISCRIMINATION: PUBLIC HEARINGS

Chairperson: Ms O Kasienyane (ANC)

Documents handed out:
South African Human Rights Commission (SAHRC) Submission
Business Unity of South Africa (BUSA) Submission
Women’s Legal Centre (WLC) and Rural Education, Awareness and Community Health (REACH) Submision
Godffrey Modisha submission

Audio recording of meeting

SUMMARY
The Committee was briefed by Business Unity of South Africa, South African Human Rights Commission, the Women’s Legal Centre and the Rural Education, Awareness and Community Health (REACH) on the subject of discrimination in the workplace.

The presentation by BUSA focused on the state of transformation in the workplace in the country. Statistics were provided on some of the successes and challenges were identified. Members asked questions about tokenism, inadequate monitoring systems, skills shortage in the country and the definition of discrimination. The presence of white women in the categories of disadvantaged persons was also scrutinised by the Committee.

The submission by SAHRC spoke about racial discrimination in the workplace undermining human rights. The Equality Courts were greatly under-utilised due to the general confusion, misunderstanding, lack of knowledge and awareness about how Equality Courts could be used to address racial discrimination in the workplace. The jurisdiction of the different pieces of equity legislation were outlined. The Committee posed questions about the functioning of Equality Courts. Clarification was also sought about the jurisdiction of the CCMA and the Equality Courts.

The presentation by Women’s Legal Centre and REACH dealt with the issue of sexual harassment in the workplace. Sexual harassment exemplified and promoted employment practices which disadvantage women at work. The Committee queried whether men were ever sexually harassed in the workplace.

MINUTES
Introductory Remarks by the Chairperson
The Chairperson informed the presenters that the meeting would be curtailed due to time constraints.

Business Unity of South Africa (BUSA) Submission
Mr Cas Coovadia, Vice President, BUSA, introduced the organisation’s delegation and indicated that the presentation would be delivered by two of his colleagues.

Mr Jerry Vilakazi, Chief Executive Officer: BUSA, welcomed the opportunity to address the Committee on the issue of workplace racism. He began by describing BUSA’s background and role as the first truly unified organisation for business in South Africa. Its aim was to ensure that business played a constructive role in the country’s economic growth, development and transformation and to create an environment in which businesses of all sizes and in all sectors could thrive, expand and be competitive.

BUSA did not view transformation as a government or blacks only issue. It was considered a South African issue, which required commitment from all citizens. Consequently, the entity fully supported all strategies aimed at ensuring that the economy mirrored the demographics of the country.

Furthermore, Mr Vilakazi highlighted that since 1994, the business sector had made some positive developments and progress in addressing transformation. Most medium and large companies successfully embraced transformation and had revised their internal procedures to conform to equity legislation. Some statistics were provided to illustrate this. In 2002, there were 12,7% blacks in top management and by 2006 this figure had almost doubled to 22,2%.  A similar trend was experienced for blacks in senior management positions. Here the figure increased from 18,5% in 2002 to 26,9% in 2006. The latest report by the Black Women’s Association showed that black women had made the greatest advancement at the directorship level. State owned companies outperformed their private counterparts when it came to employing women on their Boards.

The speaker concluded that BUSA engaged those companies that did not promote equity. He believed that they eroded the good work done by the majority who were conscious of their social responsibility. BUSA hoped to eradicate all forms of racism in the work place.

Vic van Vuuren, Chief Operations Officer, BUSA, identified and explained some of the symptoms that contributed to the lack of progress on transformation. He mentioned that the inability to the think out of the box, inadequate monitoring from government and the private sector, lack of accountability, complacency and lack of leadership were obstacles that needed to be overcome.

BUSA recognized that more work needed to be done, in particular, to advance women and the disabled.
Lastly, the presenter asserted that the implementation of the Employment Equity Act (EEA) and other similar legislation was an imperative.

Discussion
Ms A Dreyer (DA) thanked BUSA for their constructive, refreshing and unifying presentation. She noted that their approach and attitude differed from other entities that appeared before the Committee on this topic. Lastly, she sought a definition for the term discrimination.

Mr Coovadia replied that no one could pretend that this country did not have a particular history, where the majority of people were discriminated against. In that context, those who were systematically and legally discriminated against would need to be empowered and advanced so that this imbalance could be restored.

Mr van Vuuren explained that there were two kinds of racism, namely overt and covert racism. The former was easier to identify and act on.

Ms S Rajbally (MF) expressed concern about the inadequate monitoring from government and the private sector.

Mr Coovadia shared the Member’s concern.

Mr Vilakazi admitted that the entity’s monitoring system was inconsistent. He suggested that this could be improved by scrutinising certain companies over a sustained period.

Mr van Vuuren added that BUSA continued to engage with the Department of Labour and the various business sectors regarding the role of monitors.

Ms Rajbally asked if BUSA had any research into the decline of women in certain sectors.

Mr van Vuuren responded that the entity did not have its own statistics and relied on the information provided by the Commission on Gender Equality.

Mr B Mkongi (ANC) addressed the issue of tokenism. He wondered about the quality of work and responsibilities given to black people.

Mr van Vuuren did not dispute that this practice took place. However, BUSA was very satisfied and impressed with the calibre of black leaders that were members of the organisation. They could never be accused of being tokens.

Ms L Moss (ANC) pondered whether BUSA had any muscle.

Mr Coovadia responded that the organisation could only try to convince those companies that did not buy into the transformation agenda. He confirmed that BUSA had no powers to prosecute its members that did not adhere to equity legislation.

Mr O Mogale (ANC) enquired whether white women should still be designated as ‘previously disadvantaged” because recent findings indicated that they had benefited disproportionately from equity legislation.

Ms Moss was equally perturbed by the rate at which white women advanced in comparison to their black counterparts

Mr van Vuuren stated that the issue of a sunset clause was vigorously debated and eventually rejected when the EEA was negotiated. He advised that a sunset clause be introduced to address scenarios where certain categories of designated persons ran ahead of the rest or were there was skewed implementation of equity legislation.

Mr Mogale did not believe that the affirmative action programme had taken off. He sought BUSA’s opinion on the pace and state of the affirmative action programme.

Mr Vilakazi acknowledged that a lot of work still needed to be done. However, he was convinced that there had been some progress.

Mr van Vuuren echoed the sentiments of Mr Vilakazi. There was a mixture of successes and failures.

Mr Mogale doubted the skills shortage argument advanced by companies who failed to meet equity requirements.

Mr Vilakazi stated that two separate questions emanated from the comment put forward by Mr Mogale. Firstly, did companies make full use of the existing black talent? Secondly, were there sufficient skills in the country? In response to the latter question, it was pointed out that this problem was widespread but more pronounced in black communities. In addition, the existing talent was not properly utilised.

Ms S Siboza (ANC) was distressed that disabled people were ignored during the transformation drive.

Mr van Vuuren stated that this was not a deliberate attempt to avoid employing people with disability. Most companies focused on racial and then gender transformation before considering disability. He concluded that this topic needed to be elevated in terms of awareness and education.

The Chairperson believed that the equality courts were under-utilised and sought BUSA’s opinion on this matter.

Mr Coovadia agreed with the Chairperson. He called for greater awareness on the function of these courts.

Mr Mkongi sought clarity on the nature of the entity’s relationship with the Black Management Forum.

Mr Vilakazi clarified that BMF was a member of BUSA. He added that they had representatives that participated in the structures and committees of BUSA.

In conclusion, Mr Coovadia thanked the Committee for the opportunity to make a submission.

South African Human Rights Commission (SAHRC) Submission
Dr Zonke Majodina, SAHRC Commissioner, spoke about the mandate of the Commission. Its duty to promote equality emanated from the Constitution, the Human Rights Commission Act and the Promotion of Equality and the Prevention of Unfair Discrimination Act (PEPUDA or Equality Act). Furthermore, she summarised the institution’s obligations entailed in the Equality Act.

The speaker noted that Equality Courts were grossly under-utilised due to the general confusion, misunderstanding, lack of knowledge and awareness about how Equality Courts could be used to address racial discrimination in the workplace. 

The presenter stated that the Commission had jurisdiction in terms of PEPUDA to address racial discrimination in the workplace. The presentation outlined how this authority was derived and provided recommendations for PEPUDA regulation

The Commission emphasised the dual jurisdiction of EEA and PEPUDA. There was a need to send out a strong message to individuals that racially discriminatory acts within the workplace would not be tolerated. Individuals should be made aware that such acts could give rise to both disciplinary actions within the workplace as well as the matter being taken to the equality court

Dr Mojidina concluded that there should be a mechanism for the automatic referral of cases from the Commission for Conciliation Mediation and Arbitration (CCMA) to equality courts, as the reverse took place.

Ms L Mmbadi, Co-Ordinator: Equality, SAHRC, provided a brief description of some of the cases, relating to workplace discrimination, which were taken up by the Commission.

Discussion
The Chairperson appreciated the examples of workplace discrimination highlighted by the Commission in their presentation. It gave the Committee a better understanding of the subject matter.

Mr Labuschagne queried who was responsible for the PEPUDA regulations.

Dr Mojidina replied that the Department of Justice was responsible for these regulations.

Mr Labuschagne sought to establish whether individuals could also approach the equality courts.

Ms Mmbadi confirmed that according to the procedures set out in the Equality Act, any person could approach the Equality Courts.

Mr Mkongi wanted some guidance on the jurisdiction and relationship between the CCMA, labour courts and equality courts.

Dr Mojidina stated that the Equality Act superseded all other legislation (in the case of conflict). Hence, cases dealt at the level of the Equality Court would supersede those arising from other courts.

Ms Mmbadi revealed that there was a lack of awareness by magistrates and commissioners regarding the application of the different pieces of legislation. In addition, she identified that the current system was problematic as it only gave power to the Equality Court to refer cases to the CCMA and not vice versa.

Ms J Cohen, Head of Parliamentary Affairs, SAHRC, remarked that the country needed to take steps to address the issues of hate speech and hate crime as this could spill over into the workplace.

Dr Mojidina emphasised that the issue of discrimination would not end through the enactment of legislation. A concerted effort was needed to change the hearts and minds of individuals, and take forward the message that racial discrimination was intolerable.

In conclusion, Dr Mojidina thanked the Committee for allowing the Commission to participate in this critical discussion.

Women’s Legal Centre & Rural Education, Awareness and Community Health (REACH) Submission
Ms Jennifer Williams, WCL Director, described the status and mandates of both organisations. WLC focused on the development of human rights for women through the advancement of equality. REACH addressed the sexual harassment and sexual violence on farms in the Overberg Region of the Western Cape. The presentation was premised on the interpretation that the EEA placed a duty on every employer, save for a few exceptions, to take steps to eradicate sexual harassment in the workplace.

Moreover, she explained that apartheid exemplified and promoted employment practices that disadvantaged black people in the country. Similarly, sexual harassment exemplified and promoted employment practices, which disadvantage women at work and intimately degraded and objectified women.

Ms Joanie Fredericks, REACH Director, provided a contextual analysis of a typical rural farming environment, which was susceptible to sexual harassment. Rural farm working communities faced many educational, financial and social problems and had little knowledge of, or access to, effective legal and supportive services. In the urban context, women were not much better from their rural counterparts. Studies indicated that up to 76% of career women in South Africa had been harassed in some or other form in the workplace.

Ms Fredericks argued that findings from her organisation’s research report demonstrated that the legal framework in the country was reactive rather preventative. It did not provide sufficient protection for the most vulnerable women. Lastly, she outlined various recommendations that would help to eradicate sexual harassment in the workplace.

Discussion
The Chairperson noted that the topic of sexual harassment in the workplace had not been touched on by other submissions during the public hearings.

Ms Rajbally was distressed to hear about the degrading treatment of so many women. Thereafter, she challenged REACH to be more visible with its campaign. Lastly, she gave an assurance that the Committee would assist the organisation in whatever capacity.

Ms Fredericks noted that her organisation and WLC were the only organisations in the Western Cape that dealt with the issue of sexual harassment. Consequently, their campaigns and initiatives were hampered by resource constraints.  In addition, she welcomed the Committee’s interest and willingness to assist.

The Chairperson queried whether there were incidents of men being sexually harassed.

Ms Fredericks replied that this did happen. She related that the organisation had recently came across a case where a 17 year old male had almost been raped.

Ms Moss was curious about which industry or profession was susceptible to sexual harassment.

Ms Fredericks countered that all women, regardless of their status and profession, were vulnerable to sexual harassment. She cited an example of a high-ranking female government official who was subjected to such kind of treatment.

In reply to the Chairperson asking if the Committee could visit some of the farms where the organisations did their work, Ms Fredericks indicated that they would be delighted if the lawmakers visited some of the farms.

In conclusion, Ms Fredericks accused the Department of Labour of failing to establish a law on sexual harassment.

Concluding Remarks by the Chairperson
The Chairperson acknowledged that the Committee had not been able to do justice to all the submissions because of the limited time. She was impressed by the quality of their input to the debate.

The meeting was adjourned.