The department of labour’s draft regulations unfairly ignores regional demographics.
It is anyone's guess why the department of labour would propose employment equity regulations that even provincial arms of the ANC believe are flawed and intend to challenge.
It gazetted draft regulations, under the Employment Equity Act, on February 28 to resounding criticism from opposition parties and civil society.
Aside from the distortions the regulations could create in otherwise worthy employment equity practices, even large state-owned entities could find them tough to introduce.
The effect in provinces such as the Western Cape, where regional demographics differ starkly from national ones, could negatively distort hiring practices and, as the FW de Klerk Foundation argued in a recent statement, place a further burden on small businesses already struggling with red tape.
In the province, coloured people account for 51% of the economically active population (EAP) but less than 11% nationally, according to figures from the Commission for Employment Equity. Similarly, in KwaZulu-Natal, Indian people make up almost 12% of the EAP but nationally account for only 3%.
The proposed regulations will require companies who employ more than 150 people to apply national EAP demographics for the top employment levels – such as top management, senior management and professionally qualified posts – and to apply an average of national and regional demographics for lower technical, semiskilled and unskilled posts. For smaller companies, national demographics must apply to the top management and senior management levels, and a national and regional demographic average must apply to the rest.
If companies are eventually required to apply national demographics, worthy candidates who were disadvantaged under apartheid because of their race perversely face a similar disadvantage. This is, of course, unless they opt to move to another province.
This week, spokesperson for the ANC in the Western Cape Cobus Grobler confirmed that the party's provincial arm had sought legal opinion on this particular clause in the regulations and was finalising a submission, which it hoped to hand over next week.
"We believe it errs in the fact that it doesn't take into account the constitutional imperative to consider both national and regional demographics," Grobler said. "We will attempt to deal with it at all possible levels."
The party's regional chairperson, Marius Fransman, criticised it in the past, Grobler said, particularly in the light of recent court cases brought against the state for exactly these kinds of practices in hiring and promoting staff.
At regional levels, state-owned entities such as Eskom are battling to reconcile national and regional demographics when implementing employment equity.
Both white and coloured people heavily populate Eskom's Western Cape operations. This came under the spotlight at a recent provincial road show, hosted by the department of public enterprises.
Eskom's Rene Darby said that the company applies the national EAP benchmarks when determining its employment equity targets.
"However, it is important to note that the challenges regarding national EAP versus provincial EAP [are] under discussion," she said. The proposed changes will "require continuous analysis of our staff demographic in anticipation of the Employment Equity Act requirements".
"We might not be in a position to meet the requirement immediately; however, all efforts will be made to get there," she said.
In the Western Cape, white and coloured employees make up 33.27% and 36.23% of Eskom's professionally qualified and mid-management staff respectively. These figures are closer to 40% for coloured people and 29% for white people when it comes to skilled technical and academically qualified workers, junior management, supervisors and foremen. At both these levels, African workers represent 23.1% and 28.74% of the workforce respectively.
Coloured people dominate the unskilled posts – nearly 68% – of the utility's provincial operations.
The department of labour could not respond to the Mail & Guardian's questions "because the regulations are in the public commentary stage and we cannot pre-empt the final product before the consideration of the public comments", spokesperson Page Boikanyo said.