Paul Janisch

Affirmative action dragging heels, says watchdog

Nope this is not South Africa.  It's Namibia - startlingly similar to our local politicians.  As to the merits of the argument, I can't comment on that.  However when it comes to South Africa there is more than enough evidence to show that the public school system is so poor that the argument that those unfortunate to go through the system are in all probability not skilled enough.

THE Employment Equity Commission (EEC) has lashed out at companies’ reluctance to appoint racially disadvantaged (people) in top positions, saying it is “rooted in racial bigotry” and warning that the watchdog won’t stand for it.

For the year ended March 2011, blacks held only 26 per cent of all executive director positions in the country, compared to 59 per cent held by whites.
“The progress towards equity in employment has been slow and the top echelon in most business sectors remained unacceptably skewed in favour of white employees,” Vilbard Usiku, employment equity commissioner, said in the EEC’s latest annual report. The continuous marginalisation of blacks perpetuates the income inequalities along racial divide, he said.
Usiku said he no longer buys employers’ excuse that blacks aren’t skilled enough for top positions.
“White management appears to be perpetually stuck in the mindset that believes that the workmanship of the black persons is essentially shoddy and that they generally lack work ethic and ingenuity,” he said.
“This mindset, deeply rooted in racial bigotry, is a very serious and urgent challenge to the commission,” Usiku said. He said the income gap along racial lines in Namibia is real.

via www.namibian.com.na

 

The ridiculousness of the Manyi-inspired EAP targetting system (de Vos content)

Taken from Constitutionally Speaking.  The good professor opines thus:

I would suspect that these provisions, read holistically, might well be interpreted by a court to mean that the duty on employers to strive towards equitable representation of suitably qualified people from designated groups in the workforce requires them to take into account the regional and not national racial demographics when it formulates its affirmative action targets. As we know, the Department of Correctional Services’ current policy (which uses national racial demographics) in effect places an absolute barrier on the advancement of “coloured” correctional services personnel in the Western Cape – especially given the bloody-minded manner in which it is reportedly being implemented. Under the current plan, if a Western Cape officer working the Department of Correctional Services wishes to be promoted, he or she will almost always have to move to another part of the country.

Although the “coloured” personnel can, of course, apply for jobs elsewhere (where there is not – in the offensive words of Jimmy Manyi – an “oversupply of coloureds”), this requirement would place “coloured” members of the Department of Correctional Services in a very difficult position. If their roots are in the Western Cape, if their families live and work here, and if they speak predominantly Afrikaans, one of the dominant languages in the region, such employees may in effect be forced to choose either never to be promoted or to uproot themselves entirely. This may force many of them out of the service of the Department altogether.

This interpretation of the Employment Equity Act would be in line with the Constitutional Court’s jurisprudence on corrective measures as developed in the Van Heerden case, in which Deputy Chief Justice Moseneke stated that it was not constitutionally permitted to impose corrective measures on a group if those measures constituted “an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal” of achieving equality in a diverse society would be threatened. The Correctional Services Department’s policy may therefore be declared unlawful and not in line with the carefully interpreted provisions of the Employment Equity Act.

If the court found that the Act could not be interpreted in this way, I suspect it would have to declare unconstitutional the provisions in the Act which could be interpreted as allowing an employer to ignore regional racial demographics when it imposed an employment equity plan. This would be because such provisions (interpreted to allow for national demographics to be used exclusively when formulating Employment Equity Plans) would not meet the requirements for a valid corrective measures programme developed in the Van Heerden case.

Whatever happens, unless for strategic the Department settles this matter to avoid a definitive judgment by the Constitutional Court on these vexing issues (something the Department would be well advised to do and which it might still do if good lawyers are advising it), the case will probably go all the way to the highest court, where that court will finally be able to put these highly contentious issues to rest by giving guidance on corrective measures that apply differently to people previously classified as “coloured”, “indian” and “african”.

via constitutionallyspeaking.co.za

 

Superintendent Barnard, I presume

This debate is not going to go away in a hurry.  Poor Captain Barnard, or should we say, Superintendent Barnard, has become the darling of those who question the odd application of the EE Act within the public sector.  I am one of those people.

To my mind the intention of the act is completely forgotten whilst people like jungle jim chase their own questionnable agenda (racist even perhaps).  Not that I think we need worry about jungle - he'll come bouncing back with some rabble rousing comment which will set us back another ten years. It's not a bad act but it has been wholly let down by the SETAs and the schooling system.

Anyway - the judgment is now available on the internet.  The salient points were summarised on Leadership on-line.

Judge Pretorius among others found that:

• The Employment Equity Act and Employment Equity Plan must be applied with due regard to fairness and the individual's constitutional rights to equality. It is no longer sufficient to simply set up numbers and leave it at that and due regard is to be given in each individual case to the circumstances surrounding that particular case. If the Employment Equity Act and Employment Equity Plan is applicable it should be open to flexibility;
•  Because non-designated groups are adversely affected by equity plans this must be factored in against their rights to equality. In a case like Barnard it should be accepted that she has been adversely affected and that weighed up against the right to equality in reaching a decision;
• "The extent to which the implementation of employment equity plans may discriminate or adversely affect individuals is limited by law." This is where there is going to be a clash between the two schools of thought  - those who believe it's a numbers game as opposed to those who claim that fairness must be factored in as has been the case with Barnard;
• Where a post cannot be filled by a designated group it must fall to other groups;
• There must be a rational connection between the Employment Equity Plan and the measures to implement it; and
• Service delivery must be factored in where appropriate.

Looking at these points it seems almost vital that this does go to the constitutional court.

Captaining a cause

Solidarity must be celebrating.  They took up captain Renate Barnard's case and have at long last got a result.  For those of you who don't know the story it goes something like this

Barnard was responsible for investigating priority and ordinary complaints against the SA Police service. In 2005 a superintendent level position was created by the police to improve service to the public in view of handling complaints. In that year Barnard and six other applicants applied for the position. An interview panel gave her 86.7% for the interview and recommended her unanimously.   However the Saps divisional commissioner recommended that the position not be filled, saying that her appointment would not promote representation.

So they went to the Labour Court and on Friday the SAPS was told to promote her to the rank of superintendent with effect from July 27 2006. The SAPS was also ordered to pay Barnard's legal costs.

The court found that "the failure to promote Barnard ws unfair and therefore not in compliance with the provisions of the Employment Equity Act."

This is a monumental decision and apparently Solidarity have another 9 of these applications in the pipeline.  The judgement went that extra step that the City of Tshwane vs the Engineering Council of SA case wouldn't do.

Well done Solidarity - this is work well done.  I know the EE Act well and I know the constitution well enough.  Let's look at these two acts

Section 9 of Constitution of the Republic of South Africa 

9(2) To promote the achievement of equality, legislative and other measures …. may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds

Preamble to the Employment Equity Act

 in order to--

1. promote the constitutional right of equality and the exercise of true democracy;
2. eliminate unfair discrimination in employment;
3. ensure the implementation of employment equity to redress the effects of discrimination;

Point three under the EE Act says that EE is there to redress discrimination.  Where on earth did our government get the idea that you redress discrimination by discriminating.

And now I see Eyewitness News is telling us that Cosatu is urging the SAPS to appeal the decision.

Go ahead SAPS, take it all the way to the Constitutional Court.  Let's get the highest court to decide what constitutes discrimination.  If it doesn't go your way you could be putting jungle out of a job.

I am also hoping that this Denel story is fictitious too.   What is it with our parastatals - why do they always get it so wrong and why the hell does the government allow them to continuously get away with it.

The changing face of BEE deals as per FM?

Taken from an FM article on BEE investment houses who end up being benificiaries of deals and their overall performance.  The article concludes that BEE deals need to evolve, suggesting perhaps that a move toward entrepreneurship and away from passive hand-out involvement.

Recent broad-based empowerment deals from the likes of SAB, Tiger Brands and Adcock Ingram point to a changing trend in the structuring of black economic empowerment (BEE) deals. The tide has swung away from those that favour one black company or group of individuals. "The BEE deals of today are different to the way they were structured five years ago," says Sanlam Investment Management portfolio manager Ricco Friedrich. "Staff and related communities are now the preferred beneficiaries in deals that are broad based. They are more sustainable than the kind that favoured the usual suspects'. Those are dead in the water."

And then there is this quote from Jenny Cargill of BusinessMap.

"Current policy has effectively placed a 25% ceiling on BEE equity ownership. The acquisition of controlling interests by BEE investors is no longer evident and this has led to a more opportunistic character to BEE ownership."

I have always noted the sterility of the 25% target.  Once you set a target then people go for it and rarely exceed it - ask any sales manager.  Could this be why jungle (speaking predictably out of turn) is suggesting a 30% equity target by 2017?  Got to love his exemplorary knowledge of BEE and affirmative procurement.  And why not leave this post with a quote from my esteemed aficianado

Manyi said the BMF was changing its focus to concentrate on ownership, affirmative procurement and enterprise development instead of employment equity.

Does this mean that it's his other hat as DoL DG that will be looking after the EE side?

Judgment of the SCA in City of Tshwane vs the Engineering Council of SA

It is perhaps as well at the outset to make it clear what this case is not about. It is not about the application of the Employment Equity Act in the Tshwane Metropolitan Municipality.

M J D Wallis Acting Judge of Appeal  - The Supreme Court of Appeal of South Africa

Damn - this is such a messy case he could have made some obiter statement about the intention of the EE Act and how it is being implemented in the public sector. 

Govt. commits to improving lives of the disabled and a bit on the advisory council

Got this off the Eyewitness News website.  It's the last paragraph that interests me

“By 2014 we should have achieved our employment equity targets, the Welcome to The Ollie Halsall Archive minimum of two percent according to the Employment Equity Act,” said Motlanthe.

Hmm - by that stage everyone else is supposed to have reached a target of 3% for black people alone.  This is an omission in the codes - perhaps the new advisory council will do something about this.  This could be their first test.

And a post within a post - I was quoted by Business Report this morning

Paul Janisch, the chief executive of Caird Consulting, a BEE compliance firm, said the council should have had more private sector representation. "Remember the private sector has to implement the BEE that politicians want. It would be much easier for them to implement it if they were well represented on the council."

When I was speaking to Mzwandile yesterday I was at pains to point out that the council seemed to be too heavy on politicians, labour and black lobby groups (like the BMF and BLA).  I think there should have been more business representation to temper labour and the BMF's ridiculous notions and demands.  What we need to be very wary of is the jungle mantra of "empowerment at all costs".  We have seen the folly of this thought in the Tshwane and police cases.  In both cases positions have either been frozen because EE candidates did not apply for the job - the Tshwane case is absolutely scary.  The police case's judgment is reserved but I will be very interested in reading it when it is made public.

Section 53 of the EE Act

A recent PPP bid document from the City of Johannesburg had this notice as a condition

EMPLOYMENT EQUITY STATUS
Proposer must include in their Proposers (sic) submission full details of their company/venture with the DoL regarding their compliance with the provisions contained in the EE Act

Proposals must include at least the following:
Not required to register in terms of the Act (Details to be provided)
Exemption received from the DoL
Compliance with the Act (Proof to be submitted)

Failure to provide this information may render the proposal liable to rejection on the grounds of being incomplete.

THE CITY OF JOHANNESBURG RESERVES THE RIGHT NOT TO PROCEED WITH ALL OR PART OF THE AWARD OF THE PROPOSAL

I am sure that this condition has been used before but it's the first time I have seen it.  The condition is taken from section 53 of the EE Act which states:

  53.     State contracts

 (1)     Every employer that makes an offer to conclude an agreement with any organ of state for the furnishing of supplies or services to that organ of state or for the hiring or letting of anything -

(a)     must -
(i)      if it is a designated employer, comply with Chapters II and III of this Act; or
(ii)      if it is not a designated employer, comply with Chapter II of this Act; and
(b)     attach to that offer either -
(i)      a certificate in terms of subsection (2) which is conclusive evidence that the employer complies with the relevant Chapters of this Act; or
(ii)      a declaration by the employer that it complies with the relevant Chapters of this Act, which, when verified by the Director-General, is conclusive evidence of compliance.
(2)     An employer referred to in subsection (1) may request a certificate from the Minister confirming its compliance with Chapter II, or Chapters II and III, as the case may be.
(3)     A certificate issued in terms of subsection (2) is valid for 12 months from the date of issue or until the next date on which the employer is obliged to submit a report in terms of section 21, whichever period is the longer.
(4)     A failure to comply with the relevant provisions of this Act is sufficient ground for rejection of any offer to conclude an agreement referred to in subsection (1) or for cancellation of the agreement.

It was this section that started my interest in BEE.  It's the same section that jungle is going insist is used in all government tenders.   As far as I know the tender must state that it is a requirement otherwise the standard PPPFA rules apply. 

To the best of my knowledge no-one has ever seen this certificate from the minister but I would imagine that the receipt you get from a manual submission of confirmation of submission for online submissions should suffice.

jungle's success as DG will be measured by the number of tenders that do include this.  And we'll see whether he gets his 10% of turnover as a fine.  I also heard that the DoL lost their Comair fight.

Flying over water?

I think most of us would have received that hysterical email from Kulula.  Entitled "we can swim" (all in lower case) the airline takes a well timed (and deserved) dig at the "super-efficient" labour department.  Only Kulula and Nandos would turn this into something in their favour. 

If various governmental departments can slander private companies publicly, before they've gone to court - then they must expect the same treatment in return.

By the way, they are hiring.

if you ever though about joining the kulula cabin crew team, why not send us your CV, with a full length and head shot photo to talent@kulula.com. We're looking for South Africans of all colours. We are pretty fussy though and qualifying criteria include not just a vibrant and bubbly personality but also a height prerequisite of between 1.58m and 1.83m (sorry, you need to be able to reach the overhead luggage compartments), a grade 12 qualification and a minimum of three years of customer service training or experience. The ability to swim is, of course, not a deal breaker!

Good for them for doing this - they are obviously confident that they will win.  Can you imagine how embarrassing it will be for the labour department if they do.

On the lighter side

OK I said in the last post that there would be no more Jimmy-ing the system.  I did notice in the Business Day today that Jabu Moleketi (Deputy Finance Minister) has defended outspoken Public Investment Corporation (PIC) CEO Brian Molefe against claims that he is conducting a racial witch-hunt against corporate SA.  And Tim Cohen did write a very balanced opinion on our man jungle jim earlier this week.

I met up with my old friend Joseph Nkadimeng of Nations' Capital today and he was on the floor laughing at this innovative way of reclassification.  I apologise for this, my knowledge of images and how to edit them is a little lacking - click on the image to see it.