An Opinion Piece by Nici Turnbull
On 28 February 2014, the Department of Labour (DOL) published the draft Employment Equity Regulations 2014 for public comment. The 30 days allocated for public comments to be submitted have long since passed, but if the recent events surrounding the amendments to the EE Act, and especially the BBBEE Act, are anything to go by the public comment as provided will be ignored – so let’s assume that the Draft Regulations will be passed as they stand. Working on this assumption, I believe it is opportune to critically assess the concerns raised against the Regulations in the public domain.
The general public discourse appears to be that the “draconian regulations” would have a “devastating” effect on job creation. (Business Day Live 4 March 2014). These “draconian regulations” refer to the fact that according to the draft regulations – as quoted in the media, not in the regulations document – “ companies that employ more than 150 people would have to use the national economically active population demographics for three upper levels (top and senior management and professionally qualified) and an average of national and regional demographics for the three lower levels (skilled, semi-skilled and unskilled technical) as a guide when determining targets. Companies that employ less than 150 people would have to use the national economically active population demographics for two upper levels and an average of national and the regional demographic for four lower levels.
In relation to the above, the Business Day Live of 4 March carries a quote from an opposition party that “Instead of focusing on top-down quotas, the Department of Labour should be focused on building skills and capacity so that all previously disadvantaged South Africans can be genuinely empowered… Members of minority population groups such as the coloured and Indian community would be denied employment and promotion, and could even face retrenchment to allow employers to meet “these skewed and arbitrary quotas”.”
I must admit that I am getting tired of the focus on Economically Active population as the begin all and end all of Employment Equity, and I am getting even more tired of public figures across the board who refer to “quotas” in the context of the EE Act when the Act specifically states in Section 15 (3) – the section that refers to Affirmative Action – that the measures pertaining to AA “include preferential treatment and numerical goals, but exclude quotas”. Section 15(4) further states that “nothing in this section requires a designated employer to take any decision concerning an employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups”. Quite frankly I do not understand how retrenchments of people based on race can even be included in any discussion pertaining to the EE Act especially as the Act and our Constitution protects the rights of all races equally. To everyone who wants to raise a negative voice – make sure you understand the Act before commenting on it !
In addition to the above, the Regulations as published state in Section D(3) that “A designated employer employing 150 or more employees should use the national economically active population (EAP) for the upper three levels…and an average of the national and regional economically active population for the lower levels…as a guide in setting their numerical goals and targets in their employment equity plans”. Now I am not sure whether all those who comments on the regulations and I are reading the same document, but to me it is very clear that the DOL has not set quotas and is not forcing any organisation to achieve any specific targets. Rather they are stating that this should (not must) be used as a guideline (not a quota) in determining the organisational targets in a meaningful manner. Really, apart from anything else, Section 36 of the Employment Equity Amendment Act of 2013 and the supporting Schedule 1, make absolutely no reference to any compliance orders or penalties that can be levied against any organisation for not achieving EAP – so why is this all we focus on ?
What I find the most ironic of all is that the DOL regulations in no way focuses on numbers – in fact the amendments and especially Schedule 1 make it clear that the focus is on getting the EE process right. It is the ignorant arm-chair critics – who focus solely on the 3 sentences in the regulations that do reference EAP, and ignore all other aspects of the amendments – who shift the focus onto the numbers.
The commentators quoted above demand “the Department of Labour should be focused on building skills and capacity so that all previously disadvantaged South Africans can be genuinely empowered”. The fact of the matter is that the legislation as amended does exactly that – except that its focus is on business coming to the party and building the required skills and capacity. Legislation is all about intent and the intent of the DOL is clear in the amendments – my question is what is the intent of the arm-chair critics ?