Mere Compliance with EE Act defeats its objectives

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Compliance with the Employment Equity Act should be more than a box ticking exercise.

Slow progress with Employment Equity over the years

Progress in the achievement of EE in the workplace has been painfully slow since the introduction of the EE Act 55 of 1998 in 2000, as evidenced by the following selected extracts from recent Commission for Employment Equity (‘CEE’) Reports.

‘The trends in the 2014/2015 report remain relatively unchanged. Change remains slow and again means that the Sunset Clause is a ‘pie in the sky’ concept. What is further alarming is how in some of the provinces and sectors we have witnessed a decline in black representation where it matters most’ – CEE Annual Report 2014-2015.

‘The Report again demonstrates a very slow pace of transformation in the SA Workplaces. Black people, and Persons with Disabilities remain under represented at Top and Senior Management levels. It is not an exaggeration to say that not much has changed’ – CEE Annual Report 2016-2017.‘Twenty years on and we are still nowhere celebrating effective implementation of transformation legislation. We cannot even begin to contemplate the implementation of a ‘Sunset’ clause on this legislation’ – CEE Annual Report 2017-2018.

What the EE Act requires a designated employer to do to comply

In terms of the EE Act, an employer must, inter alia, in consultation with workforce representatives:

  • Conduct an analysis of policies, procedures, practices and working environment to identify barriers that adversely affect persons from Designated Groups i.e. barriers to their advancement and retention in the workplace.
  • Develop a compliant EE Plan
  • Implement the EE Plan.

No provision in the EE Act for Barriers Analysis methodology and EE Plan implementation

Neither the EE Act as amended, the Regulations or any of the EE Codes of Good Practices contain any provisions or directions as to how an employer should go about identifying barriers.
The same applies to the monitoring and evaluation of the implementation of an employer’s EE Plan. Whilst the EE Act requires an employer to consult with workforce representatives regarding the implementation of its EE Plan and to state in its EE Plan the persons in the workforce responsible for monitoring and implementing the Plan, the EE Act, Codes and Regulations are silent on how an employer is to do so and manage its EE transformation.

Consequences of ‘ticking the boxes’ compliance approach to EE

The above silence in the EE Act and its accompanying prescripts has led to the vast majority of employers who approach EE with a ‘tick the boxes’ compliance attitude, conducting wholly inadequate barriers analyses, resulting in even more inadequate AA measures. Also, the monitoring and evaluation of the timeous implementation of both numerical goals and AA measures are mostly ineffective. This was borne out by over 40 EE Risk Assessments1 conducted by EES-SIYAKHA between 2015 and 2018.

Trends detected during these Assessments with regards to participants’ barriers analyses were:

  • A lack of any or meaningful consultation.
  • The use of surveys without follow up focus groups
  • Breaking the EE Consultative Forum (‘EECF’) into task teams to come up with barriers in the different Categories
  • The use of surveys with follow-up focus groups, but not covering all the required Categories.
  • Very superficial analyses, only identifying barriers that stand out.
  • No examination of existing policies and procedures with the aim of identifying barriers.
  • Focusing wholly on unfair discrimination.
  • No examination of how policies and procedures are applied in practice.
  • No or little examination of barriers in the working environment.
  • Very little, if any, connection between the identified barriers and the EE Plan’s AA measures, as required.

Only the questions asked in surveys are answered, and then usually by indicating agreement or disagreement and the extent thereof. Although surveys can be helpful to determine burning issues, they do not meet the ‘substantial agreement’ consultation requirement of the EE Act

Without strong guidance, members of the EECF would not know what to look for when identifying barriers. Dividing them into task teams to identify barriers is therefore not the answer if an employer is serious about identifying all barriers.

The following deficiencies were identified with regard to the monitoring and evaluation of EE Plan implementation:

  • No involvement therein of the EECF.
  • Only aspect being monitored is Numerical Goals achievement.
  • Where the EECF is involved, no link between its recommendations and any decision-making body that can act on the recommendations.
  • Absence of the establishment of a special EE decision-making/EE Management Structure to which an EECF can direct its recommendations and in which it can participate.
  • Absence of regular meetings at which the EE Plan’s implementation can be monitored and evaluated.
  • Insufficient or poor preparation of data and the information that needs to be evaluated and monitored.

This failure by employers to conduct thorough barriers analyses and to manage the implementation of their EE Plans effectively is the main cause of the painfully slow progress in the in the achievement of Employment Equity in the workplace demonstrated above.

In his next article, Jan will deal with how an employer should conduct its barrier analysis and manage EE implementation.

**Jan Munnik a former Attorney and Advocate and is presently the Managing Director of EES-SIYAKHA, a leading Employment Equity Consultancy that has specialised in Employment Equity transformation over the past 19 years. EES-SIYAKHA* specialises in assisting its clients to turn EE transformation to their business advantage by adopting an EE Best Practice approach, which goes beyond compliance. EES-SIYAKHA is running an EE Workshop* on 15 and 16 May at the Sunnyside Park Hotel in Johannesburg that will deal with all of the aspects dealt with in this article.

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