Equity bill must count for the Cape

2011-03-05 10:13

The last few weeks have seen widespread public reaction to the claim by the Solidarity union that one ­million economically active coloured workers in Western Cape will lose their jobs should the proposed amendments to the colour’s labour law go through. These claims are alarmist and aimed at instilling fear among coloured and Indian workers.

This could never have been the intention of the drafters.

That is why it is important to consider these amendments and make sure that what appears to be poor drafting is corrected.

The Employment Equity Act owes its ­existence to the equality provisions of our Constitution, which state that legislative and other measures designed to protect or ­advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

Although some progress has been achieved, it is clear that many employers have not been willing to implement the letter and spirit of the act.

Any amendments proposed should ­advance the original purpose of the act.

That purpose is to achieve equity in the workplace by implementing affirmative-action ­measures to redress disadvantages to ensure equitable representation in all occupational categories and levels in the workforce.

However, the main problem relates to the confusion and ambiguity which is caused by the proposed amendment.

Section 42 of the act, dealing with compliance assessment, states that the director-general of the ­Department of Labour (or any other person applying the act) must take into account the factors listed in section 15, which deal with affirmative-action measures.

The proposed amendment states that the director-general may, in addition to the ­factors mentioned in section 15, take into account “the extent to which suitably qualified people from and among the different designated groups are equitably represented within each occupational level in that employer’s workforce in relation to the demographic profile of the economically active population”.

One could interpret “economically active population” to mean those active at local, provincial or national level. Solidarity has chosen, for the purposes of their campaign of fear, to interpret this phrase as meaning the national demographic profile of “the ­economically active population”.

The problem is that the director-general may take into account one or more factors which he or she chooses.

This discretion is very subjective and will clearly be challenged in the courts, and will create uncertainty.

In response to Solidarity, the Department of Labour has argued that coloured people are under-represented in top management, in terms of both national and provincial ­demographics.

It is further argued that ­applying national demographics will ­actually benefit coloured people.

The department is correct that both ­coloured and African people are not fairly represented at management levels in ­Western Cape.

It could be argued, however, if one applies national demographics exclusively, that once senior coloured managers comprise 10% of management in Western Cape, a ceiling will have been reached.

I don’t believe that this could ever have been the intention of the proposed ­amendments.

 Such an interpretation, as ­unlikely as it may be, could have unintended consequences given the demographic ­realities in the province.

It is important that this ambiguity is ­clarified in the consultation process that will take place at the National Economic ­Development and Labour Council and during the parliamentary process.

This could be done by actually defining “economically active population”, and also removing the proposed discretionary power granted to the director-general.

If this is not done, those who do not ­support employment equity and are opposed to the transformation of our society will ­create diversions and undermine the ­realisation of the act.

It could never have been the drafters’ ­intention that employment equity profiles should strictly follow national demographic profiles irrespective of provincial realities.

» Dugmore is an adviser in the Presidency, working in the ministry for national ­planning. He writes in his personal capacity

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