Professionalism - Is this a new avenue to enforce Affirmative Action?

2014-06-27 09:30

The increase in corruption and fraud in South Africa has been the prime motive for government intervention in the conduct of intermediaries and agents in various professions. We have seen this with the estate agencies, the financial intermediaries and now also the construction professionals. For the latter however, this intervention is also motivated by the lack of competence, with the Tongaat mall disaster in November 2013 as the proverbial straw that broke the camel’s back.

The department of labour has introduced new legislation that will force all professionals involved in workplace safety to be registered with a statutory council. The requirements for registration are based on qualifications and experience within the construction industry and have been subject of many debates amongst professional associations.

Today also marks the closing of the comment period of the proposed scrapping of the Council for the Built Environment (CBE), the ambrella regulator of six professional councils within the construction industry.

The Department of Public Works (DPW) had studied the effectiveness of the current regulatory framework for professionals in the built environment, as a driver of government’s transformation and development policies, identified three options, and called for public comment before 27 June 2014.

Under Notice 370 in Government Gazette 37653 of 23 May 2014, the DPW lists several shortcomings in the regulatory framework, including;

  • lack of co-operation between the CBE and subordinate professional councils
  • lack of transparency in the use of public funds
  • failure and resistance to comply with Public Finance Management Act requirements
  • failure to act in the interest of the Department of Public Works
  • poor alignment to public policy and
  • lack of racial transformation in the construction professions. Only 25% of registered professionals are from previously disadvantaged groups.

In likewise fashion the judiciary has been up in arms on the proposed changes to the Legal Practice Bill, allowing the public to gain access to the high courts without attorneys as intermediaries. In other words, one can access an advocate without having to see an attorney first. It also “provide a legislative framework for the transformation and restructuring of the legal profession in line with constitutional imperatives so as to facilitate and enhance an independent legal profession that broadly re?ects the diversity and demographics of the Republic. This bill is now in its final stage awaiting assent by the President.

In another, somewhat contradictory, instance, the Engineering Council of South Africa (ECSA), has applied to the Competition Commission for exemption from the restrictive practice of work reservation based on identification of work rules (IDOW).

The National Institute of Organisational Compliance Consultants in Southern Africa has also aired their concerns that government is now becoming the watchdog of professionals, whilst in the same sense, the level of education acceptable in the professional market is on the decline as a result of the poor structuring of the National Qualifications Framework and the principals of recognition of prior learning.

We have also heard complaints from white owned Training Institutions being stalled in their applications for registration with the SETA’s Quality Councils for Trades & Occupations where their black counterparts are registered in a shorter period of time.

While change and transformation is inevitable, the fairness and consistency of the enforcement of the process is questionable. Adding to that, are the numerous reports and investigations into corrupt actions by government officials.

With all this in mind, the question that remains unanswered is this: “Is professional regulation becoming the new Affirmative Action process?”

Before simply saying yes, we need to look at the various professions and determine what these regulatory frameworks and their bodies are supposed to do.

The general function of statutory regulators, such as the FSB, HPCSA, SACPCMP and ECSA etc, is primarily to protect the public from negligent conduct by practitioners and to maintain a register of competent practitioners.

What is rather alarming is that most of these professions requires skills and education which historically were not accessible to previously disadvantaged groups and that the levels of competence at tertiary institutes are starting to operate on a dual pass rate.

The only obvious exception to the rule is the health & safety profession, which is much a free for all profession, with acceptable qualification ranging from Degree level to 2 week courses in safety management.

Now if we were to apply the genuine principles of Affirmative Action, which should be based on advancement of women and black professionals with the same qualifications as their white male counterparts, we cannot endorse fair practice if the playing field is intentionally made uneven.

Professionals are different than other employees. They advise and give input on matters that not only affect their immediate environment, but also impacts on the public at large. A typical example is a structural engineer, designing and managing the construction of a football stadium with 50 000 seats. Would you trust this person if he had a two week course in engineering? Would you even enter that stadium, not knowing if it can hold your weight, let alone 50 000 other persons?

Yet you go to work, feeling safe, and trusting the Safety manager of your factory to advise management on how to protect you from accidents, having only a two week course as foundation?

 Coming back to the original question; yes professional regulation is indeed an avenue to drive affirmative action or at least transformation within a profession. But it should not be on the basis of “free tickets for sale” for disadvantaged groups, nor as a “member only” exclusionary process.

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