Workplace Discrimination: public hearings

LABOUR PORTFOLIO COMMITTEE
12 September 2007
WORKPLACE DISCRIMINATION: PUBLIC HEARINGS

Chairperson: Ms O Kasienyane (ANC)

Documents handed out:
Workplace Discrimination and Levels of Compliance with Employment Equity Act and Codes of Good Practise by Government Departments by the Department of Public Services and Administration.
AIDS Law Project Submission on HIV/AIDS Workplace Discrimination
The Truth about Employment Equity in S.A
Movement Against Domination of Indigenous African Minorities
Workplace Discrimination Comments from Communication Workers Union, Congress of South Africa Trade Unions, National Education Health Allied Workers Union, National Union of Mineworkers, South African Transport and Allied Workers Union and Southern African Clothing and Textiles Workers Union

Audio recording of meeting [Part 1][Part 2]

SUMMARY
The Department of Public Services and Administration gave an overview of the objectives in the White Paper on Transformation of the Public Service of 1995. Targets had been met except for certain areas. Most black women in management positions in the public service were concentrated in the lower salary levels. The statistics for persons with disabilities had not changed over the past ten years and the target of 2% in the public service had not been met. The reason the Department cited for this was that the education system was discriminatory for persons with disabilities and the Department had had to compensate for this by recruiting directly from schools and setting up learnerships. Their road shows had shown that workplace discrimination remained dominant in the workplace. The Department was putting in place Strategic Frameworks and Implementation Guidelines for monitoring and evaluating.

The Movement Against Domination of Indigenous African Minorities submission detailed the victimisation and discrimination that the presenter, Mr John Jansen, had experienced in the workplace while working for the Department of Correctional Services.

The Solidarity Union claimed that the “white women and affirmative action” issue had been based on skewed statistics. The Employment Equity Commission’s report could not be used in isolation in determining the effect of Employment Equity. The entire debate was based on a single anomaly in the year 2006, and that year’s statistics were questionable. A debate on white women and affirmative action would not resolve the issue of gender equality in South Africa. The Employment Equity Commission had been unable to promote gender equality in the country and was indulging in a nonsensical debate on white women and affirmative action. The Chairperson of the Employment Equity Commission had diminished the gender equality debate to a race issue. He was not promoting a non-racial workforce but a racially divided community.

The Congress of South African Trade Unions claimed that progress was slow with regard to the Employment Equity. Understanding of the Act was poor amongst workers and there was still a prevalence of unfair discrimination. Employment Equity processes were not clear in their implementation. It was recommended that incentives be created to force compliance. The Department of Labour and Justice and the South African Police Service were to increase enforcement in relation to vulnerable groups such as farm workers. There should be integration with the Skills Development Act, the Promotion of Equality Act and the Employment Equity Act. The existing compliance orders should be examined.

The AIDS Law Project cited figures that declared that one in five economically active people were living with HIV. Even though there was legislation in place to provide protection for those living HIV, there were still complaints of unfair discrimination and dismissals. They recommended that the government commit to combining resources and taking active steps against the HIV/AIDS epidemic. The HIV workplace policies should become a legal requirement with appropriate mechanisms to monitor their implementation. There should be a strengthening of penalties where employers have been found to violate the provisions of the Employment Equity Act. There should be increased funding to the Legal Aid Board for labour matters that involve unfair discrimination.

The Committee said they would consider all these submissions and not allow comments made in the media influence their recommendations. They were particularly interested in effective mechanisms for monitoring and enforcement.

MINUTES
Opening remarks
Mr O Mogale (ANC) felt that the Solidarity Union’s written submission was not relevant, as it did not address the issue of Workplace Discrimination. He requested that Solidarity Union either prepare another presentation or that their submission be discarded.

The Chairperson replied that the Committee had assessed all the submissions. She admitted that not all the submissions were addressing the specified subject, however that would be considered during the discussion phase, where Mr Mogale would be allowed to raise his concerns.

She continued that it was clear that some of the presenters had misunderstood the objectives of the public hearings. Unfortunately some members of the Committee had been overwhelmed as well. She reminded the Committee that their constitutional mandate was to be in the vanguard of ensuring labour legislation was implemented.

Department of Public Service and Administration (DPSA) submission
Ms Rhulani Makhubela, DPSA Deputy Director: Senior Management Services, began with the Constitution of South Africa and what it stated on equality. The Constitution regarded equality as a right to protection against unfair discrimination on the grounds of race, colour, ethnic or social origin, sex, religion, marital status, pregnancy disability or language. The White Paper on the Transformation of the Public Service of 1995 had three objectives: within four years all departmental establishments had to have at least 50% black management, 30% new recruits in the middle and senior management echelons should be women and that within ten years 2% of public service personnel should be people with disabilities.

Using the PERSAL system as the primary source, the Department illustrated the figures of population groups, number of employees as well as the percentage of representation. The analysis of the representation, in terms of race, showed that the Department and matched the target of 75% of representation of Blacks and were currently at 88.24%. Of this figure 75.96% represented Africans. A graph according to race and gender in the Department illustrated that women represented 54.38% of the total workforce. Black women comprised 87.81% while white women were 12.19% of the female employees. African women made up 41.28% and African males made up 34.68% of the total number of employees in the Public Service.

A review of the equity targets showed that Cabinet had amended the previous target of 30% women in senior management positions (SMS) to 50% representation of women by 2009. The figure of 2% of disabled persons was retained.

An analysis of gender representation in SMS positions in the Public Service showed that currently there were 31.56% women in senior managements positions. There were only 33 women of the 124 persons employed at salary level 16. Women were concentrated in salary levels 13 – 14 which were the lower echelons of the SMS.

A representation of people with disabilities in the Public Service showed that there was a 0.06% point increase from 2002 to 2007. This indicated a slow pace of growth. The Public Service did not meet its set targets by 2005; the reviewed target of 2% had been extended until March 2009.

Beyond the numbers, workplace discrimination remains dominant in terms of race, gender and disability. It was also highlighted that senior managers identified the workplace as discriminatory to the empowerment of targeted groups. Some examples of workplace discrimination demonstrated that sexual harassment of both men and women still occurred. There was stereotyping and insensitivity towards the needs of targeted groups. There was a lack of reasonable accommodation for persons with disabilities. A lack of childcare facilities posed a barrier for women’s participation in economic activity.

Departments put measures in place to ensue compliance. These were strategic frameworks and implementation guidelines with Monitoring and Evaluating mechanisms created by the Department of Public Service.

Discussion
Mr W Spies (FFP) noted that in 2005 he had questioned the Minister about the composition of the Public Service. The Minister gave a satisfactory answer that corresponded with the figures that were presented. The Minister also drew an interesting comparison between the composition of the economical active population and the composition of the public service. At that time, the economically active population seemed to have an under representation of both white and coloured people in the public service. Those figures translated into approximately 20 000 white people and 10 000 coloured people. Since these figures were two years old, Mr Spies wanted to know what had been done to improve the representation of those race groups and what could be expected in the future.

Ms Collette Clarke (Deputy Director General: Human Resource Management and Development: Department of Public Service and Administration) replied that the question was not linear. Generally there are three sectors in economic activity: the tradables, the private non-tradables and public non-tradables which are the public utilities and government departments. When there is high degree of growth in the economy generally there would be a growth in tradables and private non-tradables. That would vary according to the economic policy and economic activity in the country. It is not a direct correlation between what the government was doing and the economically active population because of the fact that there are several other factors that could change and affect the grouping.

Mr Spies commented that if the question posed was not linear then the answer that was given by the Minister when asked this question was not linear. Moreover the Employment Equity Act contained a definition of economically active population and the demographics that needed to be used as a guideline for determining targets. He felt that it was determinable to assess the composition of the economically active population; there was a guideline that should be used to determine those targets. He was concerned about the fact that two years had passed and nothing had been done to address the issue of under-representation.

The Chairperson said that the Department should respond to the previous question in writing, due to time constraints

Mr M Mzondeki (ANC) was interested in the measures that were to be put in place to ensure compliance, specifically monitoring and evaluation mechanisms. He wanted a commitment from the Department on when the Committee would receive reports on the progress of these mechanisms, as one of the weaknesses that had been identified was the fact that monitoring was lacking.

Professor Levin responded that the Department had developed a number of strategic frameworks across the area of human resource management and development and indicators that had started to monitor. The Department could provide reports on an ongoing basis on the figures because of the Vulindlela system drawn from the PERSAL system. It was the same system that allowed them to provide tables that had been shown during the presentation.
           
Mr T Anthony (ANC) wanted further clarification than the figures provided in the presentation. The presentation stated that workplace discrimination was still dominant in terms of race, gender and disability. An additional explanation was requested from the Department as what exactly was meant by this phrase.

Ms Clarke replied that it should also be noted that the definition of the workplace in terms of the Employment Equity Act, for the Public Service specifically, is actually the employer. Thus there was actually 139 employers for the purposes of a determination of a workplace plan, assessing the aspects that had to be taken into consideration in terms of the stakeholders of that particular workplace. The geographical representation deals with spatial geo-political context of that particular workplace and how they make the determination. Demographic representation was determined at a particular workplace for the purposes of the Employment Equity Act. When the Public Service aggregates this, it is done with the decentralised decision making in terms of the context of what that particular Employment Equity plan entailed. The Department can give strategic frameworks in terms of guidelines and those are complied with.

Ms Ranji Reddy (Chief Director: Department of Public Service and Administration) added that one of the strategic frameworks focussed on gender equality and job access and had four pillars that should be able to cover the whole area. An enabling environment would put in place policies and workplace guidelines, equity issues would encourage equal opportunity in the workplace, gender mainstreaming in all projects and programmes in the Department and the last pillar would be a barrier-free workplace. Through these frameworks the Department would drive the establishment of institutional mechanisms to tackle both the gender and disability issues in the workplace.

Mr Anthony referred to the road shows that had taken place and wanted to be briefed on the issues that dealt with discrimination during that time.

Ms Makhubela replied that during the road shows it was pockets of practices that were reported.

Ms Reddy added that there was a persistence of cultural discrimination in the workplace, a resistance at some levels to change and gender relations were problematic. There was lack of compliance by departments in terms of organisational culture and climate, in terms of following the code on sexual harassment cases. This had caused the Department to want to complete the Barriers Analysis Social Survey, that would given them a clearer explanation as to what types of discrimination were occurring in the workplace.

Mr Anthony asked if there were reasonable accommodations for people with disability.

Mr B Mkongi (ANC) wanted clarification on what was contributing to the slow place of the growth of equity for people with disability.

Ms Clarke replied that the education system only dealt with the integration of learners with special needs post-1994. This led to learners with disabilities not getting into the schooling system and therefore not being employable. The strategy that had been developed was to try and turn the schooling system into a recruitment forum to try and get such learners into internships and learnerships, this would assist in getting them into the Public Service.

Mr B Mkongi (ANC) commented that in the Department’s White Paper of 1995 three objectives were declared. The first of these objectives was that within four years of the release of the White Paper, all departments should have 50% black representation at management level. During that same time frame, 30% of the middle and senior management should be women. And within ten years 2% of the public service should be people with disability. He wanted to know what was the Department’s status regarding those objectives.

Prof Richard Levin (DPSA Director General) replied that the Department had achieved the goal set for women in management but had set a new target for 2009 which required them to achieve 50% women in management. One of the challenges for the Department would be to note if the women were at senior level management or not. It was true that the Department had failed to attain their target with regard to disability equity because the Department lacked the necessary focus and intentions.

Ms Makhubela added that they were at 31.56%, for black women the target had been shifted to 50% by 2009.

Mr Mkongi wanted an explanation on the trends of the discrimination that remained predominant in the workplace.

Ms Makhubela replied that the Department could not be specific but thought that it was across the board.

Ms A Dreyer (DA) wanted clarification on how it was decided to which racial category an individual belonged. She asked if this was a voluntary declaration. Furthermore if the Department accepted voluntary association, and she declared herself an African, as per the definition outlined by the President Mbeki’s speech “I am an African”, would the Department accept her declaration. 

Ms Makhubela replied that the application forms offered classification options and should be filled in accordingly.

Prof Levin responded by stating that he was a white male African. They were confronting certain realities that the Department was trying to address through its policy frameworks and the targets they had set. The figures and statistics clearly demonstrated that the leadership and strategic direction of the administration apparatus were still experiencing fundamental representivity challenges. The major challenge within the management echelon pertained to women, particularly black women. The figures showed that black women were located on the lower rungs of management and this meant that males still predominantly handled decision-making in the public service.

Ms Dreyer reiterated her question of whether or not her chosen classification of “African” would be accepted by the Department of Public Service and Administration and if not why not.

The Chairperson intervened stating that because of time constraints the Department was not at liberty to reply.

Mr Anthony made the proposal that a more detailed report be provided to the Committee by the Department outside of the public hearings. The purpose of the public hearings was to follow up on the report given to the Committee by the Employment Equity Commission. The Committee wanted to identify key areas needing to be addressed and to resolve these. That was why a more thorough report was required. 

Ms M Twala (ANC) sought clarification on the mechanism that the Department used to monitor and portray discrimination at the workplace.

Ms L Moss (ANC) commented that the country’s democracy was young and that the role of the Committee was not to criticise. She hoped that the proposals made by the Department addressed the concern about the fact that they had not reached the target of 2% persons with disability in the public service.

The Chairperson interjected saying that the Department should responded in writing, as not only would the Committee be in constant contact with the Department during the rest of this process, but they also had time constraints.

Movement Against Domination of Indigenous African Minorities submission
Mr John Jansen (President) was a Deputy Director in the Department of Correctional Services (DCS) and had been actively involved in the transformation of the DCS for over thirty-five years. He was an activist and played numerous roles that contributed towards the Struggle during the Apartheid era. He was once Police and Prison Civil Rights Union (POPCRU) elected national president and even played an advisory role to the former South African president, Nelson Mandela.

Mr Jansen illustrated victimisation and discrimination at the workplace using himself as an example. He was appointed at Pollsmoor Maximum Security Prison during1997 as the first non-white head of prison at Pollsmoor. He managed to transform Maximum Prison at Pollsmoor into a Centre of Excellence that was used as model for other prisons. The Jali Commission declared it the best-run prison in South Africa.

Mr Jansen said that he had received a death threat at work and reported it to his then area commissioner and supervisor, Mr Clifford Mketshane in 2002. It was then reported to the National Intelligence Agency (NIA). During this time he was also investigated for allegedly receiving R288 000 from an inmate. This allegation was referred to the Jali Commission who found that it had no merit. In April 2003 the NIA complied an official report indicating that there was a direct threat on Mr Jansen’s life, that the corruption allegation was an attempt to vilify his character and that these threats emanated from parties both inside and outside the DCS. The NIA recommended that the DCS should provide security for Mr Jansen.

In October 2003 Mr Jansen was transferred to Goodwood Prison, under the auspices of a temporary arrangement. He was informed via letter that his transferral was permanent six months later. Mr Jansen suffered from depression as a result of his workplace situation and despite valid medical certificates, had his medical benefits and salary suspended for ten months. Mr Jansen stated that in early 2007, secret meetings were occurring between the Area Manager Mr Clifford Mketshane and NIA official to plot his dismissal from DCS. He was then dismissed on the 1 June 2007.

Mr Jansen said that he continued to live in fear for his family and himself and requested an immediate independent investigation in his situation.

Discussion
The Chairperson thanked the presenter and mentioned that these were some of the examples and stories that were received from submissions.

Mr Anthony enquired whether Mr Jansen had, in regard to his transfer and dismissal, taken these issues to the relevant labour institutions.

Mr Jansen replied that he had registered his complaint at various institutions of the State such as the Human Rights Commission, the Department of Correctional Services, the Bargaining Council and the Public Protector with no results. He had also appealed against the process and his appeal had failed. He then entered into a conciliation process that also failed.

Solidarity Union submission
Mr Dirk Herman (Deputy General Secretary: Development) looked at four topics: Employment Equity and National Policy, White women and Affirmative Action, Young people and Affirmative Action and an Idea for a Code of Good Practice for Affirmative Action.

Young people should be exempted from affirmative action. The submission illustrated that that there was much more progress than was indicated in the Employment Equity Commission report and that the statistical base of that report was unstable. Mr Hermann specifically wanted to concentrate on the issue of white women and the claim that they should be excluded from the Employment Equity Act. The Chairperson of the Employment Equity Commission had said that it was the one thing that stood out in the report on the Employment Equity Act. The debate on Affirmative Action and White Women gained new momentum when the Chairperson of the Employment Equity Commission, Mr Jimmy Manyi, stated that White women should be excluded from the Employment Equity Act. The Chairperson’s proposal was based on the finding of the Employment Equity Commission’s report that white women in top management positions had increased to 14.7%. In contrast, Governor of the Reserve Bank, Mr Tito Mboweni, claimed that there was scientific proof that showed discrimination against white women.

Mr Hermann outlined the reasons why the statistics in that report were problematic such as the survey (see submission). There were also numerous technical errors. White women that were affected only amounted to 1200; the whole debate was based on that figure. He used a different source, the Labour Force Survey from Stats South Africa. This showed that there was a 50% discrepancy between the two reports on the number of white women in the labour market. The Labour Force Survey was a much more comprehensive report.

The reason why white women had been included as a designated group was that there were certain grounds for employment equity and affirmative action. In addition to discrimination based on race that included coloureds, Asians and Africans, there had also been other category-based discrimination on gender and disability. White women were under represented in the white population group. There appeared to be a growth of white women in the labour market, however this was largely due to the strong decline of white men in the labour market.

It was clear that there was a problem with gender equality in the workplace and in South Africa. There was a decline of total women in the workplace and this included black women. It also seemed that white women were the most affected by affirmative action in the workforce as there was a decline of 24.83%. He reiterated that affirmative action in terms of white women was not a race issue but a gender issue. Case law clearly showed that white women faced discrimination and were last in the line when it came to affirmative action.

The International Labour Organisation (ILO) had clear resolutions on gender equality, for instance the Maternity Protection Convention. The South African delegation had not ratified the resolutions pertaining to gender equality. South Africa had only ratified two of the twenty-two resolutions, and those were the fundamental resolutions of the ILO, therefore South Africa was not in line with international conventions regarding gender equality. It was the responsibility of the Committee to ratify those resolutions.

The Solidarity Union thereby gave formal notice to the Portfolio Committee on Labour that it intended to petition Parliament to ratify and implement international labour regulations. The petition would also request for public hearings where gender equality issues may be discussed.

Mr Hermann proposed that Employment Equity Commission’s report not be used as the sole determinant on the national policy due to numerous shortcomings. He proposed that white women remain part of Employment Equity and affirmative action. The Code of Good Practice should be used to counter unfair discrimination on non-designated groups.
 
Discussion
The Chairperson stated that because of time constraints the Committee would address any questions on the previous presentation after the COSATU presentation. She added that although the procedure had differed from the previous public hearing days, it should be noted that the Committee valued the presentation given by the Solidarity Union.
 
Mr Mzondeki stated that he was an ANC Member of Parliament, that the submission of the Solidarity Union was noted. However there was a lot of information that should be reviewed and that he would not want to enter into the debate now.

COSATU Joint submission
The submission included the inputs of the Communication Workers Union CWU), National Education, Health and Allied Workers Union (NEHAWU), National Union of Mineworkers (NUM), South African Transport and Allied Workers Union (SATAWU) and the Southern African Clothing and Textiles Workers Union (SACTWU). Mr Kenneth Mutuma (COSATU Parliamentary Office) gave a quick overview of the understanding of Employment Equity on the ground. Mr Mutuma made it clear that this submission was not a comprehensive report. It was based on a spot survey and two research studies. The level of understanding of the Employment Equity by employees was very poor. In many instances there had been no training or awareness programmes. Management seemed to have general hostility about it.

It was very clear that there was blatant gender discrimination. There was direct discrimination against women based on wages, division of labour and facilities available. Black women were experiencing discrimination far worse than any other group. Indirect discrimination was occurring where companies either used terminology to veer away from Employment Equity. There was an introduction of intermediary tests to avoid recruitment. There were also instances of top management positions being awarded to black people, however it was a position purely for window dressing.

Employment Equity committees in many instances were not established and membership of such committees was irregular. Collision with conservative unions frustrated the working of these committees. With regard to consultation, there was a divergence between management and workers on the interpretation. There was insufficient recourse when consultation did not take place. The Department of Labour lacked effective action to ensure consultations.

Employment Equity reports lacked analysis. Unions were not consulted regarding numerical goals. There was a feeling that the Employment Equity reports were management tools that unions had no authority to alter. The Department of Labour engaged with management and not with the unions.

There was a lack of coordination when it came to the public sector. Income differentials were reminiscent of the Apartheid era as wage gaps were still evident. Unions also found it difficult to gain information on wages/salaries.

The Employment Equity Act and the Equality Act were difficult to distinguish and an awareness campaign was proposed to address these issues. There was a link between the Employment Equity Act and the Skills Development Act as it was meant to support the Employment Equity Act. Broad Based Black Economic Empowerment was tilted towards corporate interest.

The role of the courts needed to be defined, as there was a burden of proof. There was a lack of monitoring and compliance with the regard to the Employment Equity Act.

In conclusion, Mr Mutuma, stated that progress was slow and that understanding was poor amongst the workers. The Department of Labour needed to develop clear strategies. Their recommendations included improving understanding. Incentives should be created to force companies to comply.

Mr Fred Gona (Parliamentary Coordinator: National Mineworkers Union) began by responding to some public debates. Historically, discrimination was inherent in the legislation but with the advent of South Africa’s democracy, the Employment Equity sought to remedy the situation. He wanted to make it clear that it was more of a political situation than an economic issue, because the Act was dealing with transformation.

Mr Gona felt that the report from the Employment Equity Commission and the stance that was taken was the correct decision. He made it clear that NUM had always been opposed to including white women in the Employment Equity Act. The reason given was that women were oppressed in three ways: in terms of race, gender and societal oppression. White women, however, were not oppressed with regard to race and societal oppression. White women who were not employed at the time had done so by choice because their husbands were sufficiently remunerated at their workplace.

Mr Gona cited an example of wage differences based on race. The artisans in certain sectors were paid a specific amount of R4000: this was mainly paid to white workers. Black workers were excluded because they were unable to attain the relevant qualifications. He continued that in areas such as Kimberley mines, black women were treated inhumanely by being subjected to full body searches under the auspices of ensuring that workers did not leave the mines with goods. White women and men were not treated to these full body searches.

The mining charter states that at least 10% of employees in the mining sector were to be women. It was found that there was an increase in the employment of White women. Mr Gona raised the issue of ‘rent-a-Black’. Black people would be placed in senior management positions but would lack the power to make important decisions. This was a clear indication of resistance to transformation.
 
Mr Gona stated that there were small issues such as parking that was reserved for white workers; tearooms that excluded black workers. Living conditions also favoured white workers, as their living conditions were superior to those of the black workers. Retirement packages were better for white workers. There were certain skills that were reserved for white workers.

Mr Gona concluded that this discrimination was done deliberately in resistance to transformation in South Africa.
 
Mr Jackson Simon (Coordinator: SATAWU) stated that he would give a few examples. There was a current dispute at South African Airways (SAA) where 2000 black workers were to be retrenched, while there was job reservation for white workers. SAA had also said that those white workers affected by the retrenchment would be trained in other areas, while the same courtesy had not been extended to the black workers.

In the private security sector, particular where certain black politicians owned majority shares, it was found that black workers were not allowed to use the same toilet facilities as the white workers. There was discrimination against women; there was a clear stipulation that no women were allowed to provide security in particular areas. White females dominated office staff in the security sector. These were the kind of experiences that existed. It seemed that the Minister of Labour was undermining the Employment Equity, in terms of enforcing the Act. 

Ms Magdalene Baatjies (Organiser: SACTWU) began by responding to an earlier remark that questioned the direction from which discrimination was coming. She stated that it was clear that it was one way, if not, there would have been two forms of legislation that dealt with discrimination from two ways.

She continued that there was a lack of coordination in the public sector in ensuring a full implementation of the Employment Equity Act. The provincial government had not fully utilised the opportunities afforded to them. In the workplace there were few Employment Equity committees, and where there were, committee decisions were taken by management anyway. The Department of Health does not deal with Employment Equity as defined in the Act. Discriminatory workplace practices continue at all levels in provincial government. In general, quality and the quantity did not correlate, in the sense that black people were appointed to lower levels jobs.
 
Ms Aziza Kannemeyer (Union Organiser: SACTWU) explained that she was involved in a female dominated industry. Ms Kannemeyer highlighted real experiences in the industry. White males in the top hierarchy dominated the textile industry. If black individuals were promoted to a supervisory or mid-management level, the individual would still not be in a position to make meaningful decisions that would transform the workplace. Males dominating senior management positions was linked to wage discrepancies. An example was that a non-white female manageress would earn significantly less than a white manageress and even less than a male manager.

In the textile industry the employees were predominantly single mothers, and as yet there has to be a company that has child-care facilities, which was stipulated in the Employment Equity Act. The issues of black females not being promoted, of being underpaid because of race and the lack of facilities were all linked to gender discrimination as outlined in the Employment Equity Act.

Ms Kannemeyer highlighted that companies saw disability as a liability. The stance of companies was that if an individual was temporarily disabled or disabled they were to be boarded or dismissed on ill-health grounds. It would be interesting to note what resources had been put in place to ensure compliance of the Act. Currently the process involved the unions finding a Department of Labour inspector, who would then investigate the claims. The availability and visibility of a Labour inspector or an inspector from the Department of Trade and Industry would be welcome. The point was raised that the Department of Labour had dumped monitoring and ensuring compliance on the bargaining councils and unions.

The procedure of taking matters to the court was confusing. There was no certainty on whether it was a CCMA issue, a Labour court issue or an Equality court issue. It was time consuming and costly and therefore it was not a worker-friendly procedure. At present the only group that had benefited from the legislation had been white females in the textile industry. Currently the legislation was seen as a ‘nice-to-have’ but almost impossible to implement, enforce or to monitor. The ordinary worker found the legislation of little benefit to their lives.

AIDS Law Project submission
Ms Fatima Hassan (Senior Attorney: AIDS Law Project) stated that there were approximately five and half million people living with HIV. It was estimated that one in five economically active people are living with HIV. There were increasing levels of unfair discrimination against people living with HIV and high levels of ignorance despite legislation that provided protection for people living with HIV.

There had also been an increase in indirect HIV testing, despite a prohibition in the Employment Equity Act of mandatory pre-employment HIV testing. She noted  in particular that indirect testing seemed to be occurring at the parastatal, South African Airways. The 1998 legislation made it clear that HIV testing for the purposes of appointment, promotion, transfer or benefits or anything related to the issue of job security and which was done at the request of the employer was only permissible under certain circumstances. The legislation stated that the employer has to approach the Labour Court for permission to do such testing.

It had come to the attention of the AIDS Law Project that many job applicants were required to provide laboratory blood test results that included CD4 count and a viral load test. CD4 and viral load tests were specifically used to indicate the clinical progression of HIV in people with HIV. There was simply no other medical reason why these tests would be required. Employers, like SAA, requested these tests to establish an individual’s HIV status. To request these tests was both illegal and against the spirit of the Employment Equity Act.

Ms Dan Pretorius (Attorney: AIDS Law Project) spoke on a particular aspect of the legal framework, the Code of Good Practice on Key Aspects of HIV/AIDS and Employment. These guidelines had led to the development of effective workplace policies by a number of large companies to the extent that since 2002 they had provided quite extensive prevention care and treatment programmes for low income earning employees at low cost. Despite this, the AIDS Law Project had been receiving complaints of unfair discrimination and the mismanagement of HIV/AIDS related cases. Implementation of workplace policies was often irregular. It would be in place at national level, however people would not know about it at the branches. In cases where there were treatment and care programmes, past experiences made people scared that confidentiality would not be upheld or that, if they were to reveal their status, they would be dismissed. There were also significant barriers to the uptake of the services offered. There was a tendency to see the programmes as an ‘once-a-year’ event, National AIDS Day on 1 December, or it was simply a case of distributing pamphlets. A particular case was cited where a government employee revealed her status on World AIDS Day, her senior management superiors were sympathetic, but her colleagues were discriminatory against her.

Although there was a national policy since 2001 in the public service, many departments were not aware of the details of that policy. In the private sector, the South African Business Council on HIV/AIDS did a study in 2004. It showed that although large companies did have active workplace policies, it was the small and medium enterprises that did not have workplace policies, and that was where the major problems were. The smaller companies seemed to be ignorant about the way HIV was transmitted and had the perception that workers living with HIV were a threat. Employees in smaller enterprises were generally poorly paid, under-educated and did not have much job security. This allowed employers to feel safe in ignoring the law. Some companies were under the impression that it was more expensive to implement care and treatment programmes, in some cases companies were not interested and in other cases companies lacked the expertise to sufficiently deal with HIV/AIDS.

There were gaps in the legal framework, particularly the fact that Code of Good Practice was not enforceable. Most trade unions were not equipped to deal with legal cases for members who were living with HIV/AIDS. The Department of Health engaged volunteer councillors who did the crucial aspect of counselling inside hospitals and clinics. Those volunteers meet the criteria, set by the Department of Labour, to be considered as an employee but continue to be treated as volunteers with a small monthly stipend. They did not have access to employee benefits and were often hired and fired without due process.

Ms Pretorius stated that the AIDS Law Project supported the COSATU proposal that there should be increased regulation for labour brokers and increased funding of bargaining councils.
 
Ms Hassan concluded with the proposal that the legislation that dealt with these issues should be made increasingly more strigent. She recommended that government commit to combining resources and taking collective action to address the HIV epidemic through education programmes, universal roll-out of ARV treatment services, programmes to eliminate HIV-related stigma and discrimination and programmes to mitigate the socio-economic impact of the HIV epidemic. The adoption and proper implementation of HIV workplace policies should become a legal requirement with appropriate mechanisms to monitor the adoption and implementation of such policies. There should be a strengthening of penalties in cases where employers were found to have violated the provisions of the Employment Equity Act on unfair discrimination. Increased funding also needed to be made available to the Legal Aid Board.

Submission by Willem Koorts (submitting in his individual capacity)
Mr Koorts said that his working background was in the private sector hospitality industry at management level. He had served as director on the board of a privately owned company until 2005. This company was one of the bigger companies in the South African tourism industry. It was at this level that he felt a lack of understanding and sincere commitment to transformation from white bosses.

Mr Koorts believed that the only way to understand another culture was to live it. Five years ago he had moved to Khayelitsha by choice. For the past year he had been working at different companies at worker employee level. He had yet to work for a company that did not discriminate against fellow South Africans. The most prevalent form of discrimination was that based on race by white bosses. Ignorance and preconceptions were factors that contributed to this disease in the workplace. Unfortunately most black South Africans suffer the fate of being judged and labelled before they even enter the workplace.

The biggest contributing factor, from his perspective, was the lack of trust and belief in black people by white bosses. He referred to the slow growth of employment equity and noted the usual hierarchical order of the white senior manager, followed by the coloured mid-level manager and the black workers at the bottom of the ladder.

He noted that there was a trend to hire foreign Africans rather than South Africans. He also said that white people were hoarding their wealth and therefore contributing to the slow growth of employment equity. Mr Koorts felt that legislation to transform the resistance to transformation and redistribution of wealth was needed and concluded that the Department of Labour had big challenges ahead.

Discussion
Mr M Nene (ANC) referred his question to COSATU, and asked what mechanism would COSATU enforce to monitor the implementation of the Employment Equity Act, specifically in training shop stewards.

Ms S Rajbally (MF) said that she had served in SACTWU for twenty years and noted that SACTWU experienced the same issues she had experienced when she was part of the union. She asked if the union took the initiative in letting employers know what was allowed. Did SACTWU have people in place to monitor if employers were adhering to the Employment Equity Act and the Constitution.

Mr Gona replied that their advanced shop steward training course dealt with the legal framework. The issue that had been raised in their submission had been the fact that the Employment Equity Act was heavily in favour of the employers. It allowed employers to manipulate the Act and Employment Equity committees were set up in the workplace purely for compliance purposes. The unions had no influence in the submission of the Employment Equity reports.

He added that COSATU has raised the enforcement role and responsibility of the Department of Labour. COSATU had recommended that resources needed to be set aside to ensure enforcement and that penalties for non-compliance must be made more stringent. The Department should look at the possibility of revoking operating licences.

Mr Mkongi asked COSATU for the opinion of the unions on the shop stewards that were in cahoots with management at the expense of the workers. That would make workers lose confidence in the shop stewards and the unions.

Mr Mzondeki directed his question to the Department of Labour and asked what was the contributing factor to the lack of consultation on Employment Equity reports.

Mr Niresh Singh (Department of Labour) replied that the Department of Labour had released a number of Codes on Good Practice. The Code of Good Practice on the implementation of Employment Equity plans, included a section on consultation and what was prescribed. It was found the Code was not sufficient because although the courts took the Code into consideration, it was not legally binding. The Employment Equity Commission had then decided to include those areas on consultation in the regulations and now those Codes were legally binding.

Mr Singh added that he dealt with the operation of the law and Employment Equity Act was initially put in place with good faith and with the expectation of compliance. However it had not happened as was expected. Initially capacity was put in place to ensure that the Act was implemented properly, but that had not happened. The Department would have to strengthen the mechanisms from an operations perspective when it came to enforcement. Further, a mechanism should be in place to strengthen the relationship between the Department and the employees and trade unions.

Ms Prakashnee Govender (Parliamentary Office Coordinator: COSATU Parliamentary Office) said that too much responsibility had been given to the Minister of Labour in terms of implementation. COSATU was concerned that their views were not being heard. There was an obligation by the Department of Labour to investigate and review income differentials, and that had not happened. Trade unions should also take responsibility but were suffering from lack of resources

Mr E Mtshali (ANC) commented that it was good that the presenters were focusing on the working class and not talking about people in general.

Mr Mkongi referred to those proposals that recommended legislation be linked such as those dealing with safety and health. He asked what strategy was recommended to synergise these pieces of legislation. He noted that while reading all the submissions, he had come across the assertion that “Affirmative Action should die a natural death”. He asked all the presenters if there was agreement with this statement. Should time constraints be set on Affirmative Action?

Mr Gona replied that there was talk on whether a sunset clause should be implemented by specifying a time period after which Affirmative Action could come to an end. However, at this stage they did not know at what point they would have reached equality in the workplace. He added that the issue of meritorious appointment was being used mischievously to advance the white community.

Mr Mkongi referred to the fundamental relation between race and gender and asked what difficulties were being experienced with these competing issues in terms of each organisation’s own transformation agenda.

Ms Govender commented on the white women issue by saying that the agenda was really all about addressing the socio-economic disadvantages that people had suffered as a result of apartheid.

Mr Gona replied that it needed to be located in history. White women had not been oppressed according to race and their class, because they were located within the bourgeois class. Their position in society in general had been advantageous. He added that they were far from reaching their goals and obtaining full transformation.

Mr Mkongi doubted that there was any of these young people willing to sacrifice their material inheritance passed down to them by their forefathers.

Mr Anthony commented that affirmative action was legislation that was already in place and it had to be implemented. This legislation covered all women. The programme of the Committee could not be driven by the media. The proposals made in the media could not be perceived as influencing the Committee’s decisions.

Ms Rajbally concluded the meeting by thanking all the presenters. She added that all of them had a lot of work to do.

The Chairperson adjourned the meeting.