Tebello Radebe
Mpho Mokwana, equal opportunities director at the Ministry of Labour, has strongly defended the right of the government to propose strict penalties and fines against companies that will not comply with affirmative action laws, despite recommendations by the recent Labour Market Commission report.
“We cannot have laws for the sake of having them, without being able to enforce them. In fact, even the commission calls for a process of auditing progress on affirmative action plans — which is a form of enforcement,” he said.
This follows Labour Minister Tito Mboweni’s announcement of far-reaching proposals in the Green Paper on employment equity this week.
Mokwana said: “What we envisage is a fine balance between forms of sanctions and incentives to encourage the advancement of employment equity.”
The commission, appointed last year by Mboweni to draw up recommendations on the restructuring of the labour market, proposed that “legislation should not be overly prescriptive or punitive”.
The commission said public accountability should be a major instrument for encouraging progress on affirmative action. Companies should be required to publish accounts of this progress in their annual reports.
Proposals for action that may be taken include withholding government business when tenders and contracts are awarded, as well as barring non- compliant companies from obtaining planned training subsidies or tax incentives from the Department of Trade and Industry.
Mokwana added that the Green Paper does not in any way propose drawing up “draconian” laws to coerce anyone. “That is why, for instance, we are not looking at suggestions of quotas for how many people should be employed.
“This does not mean we will create legislation that does not have any teeth and will exist on paper only.”
He emphasised that the thrust of the Labour Department strategy is to bring the various parties together to agree on what needs to be done.
However, he conceded that concerns about the possible lack of capacity by the government to monitor the effective implementation of the laws are valid. “We envisage an incremental approach to the implementation of the laws. It will be the first time that we shall have to implement statutes of this magnitude and complexity and there are no readily available benchmarks to work from.
“What we hope to do is to bring about a situation where the various parties will become empowered to play the monitoring role, while the government gives the overall direction and guidance,” he said.
Mokwana did not elaborate on who these monitors are likely to be. The Green Paper itself only refers to “private organisations” that would fulfil this function with the Directorate of Equal Opportunities in the lead, assisted by the Commission for Conciliation, Mediation and Arbitration and the Workplace Forums.
Included in some of the provisions of the proposed legislation is the need for companies to draw up “qualitative and not quantitative” affirmative action plans running for a number of years in conjunction with Workplace Forums, where such bodies exist. The results of these plans are to be shown in companies’ annual reports and the Labour Ministry will have the right to examine these at random.