The Western Cape Government is Getting Employment Equity Right

On Thursday, 18 April, Minister of Labour Mildred Oliphant will be releasing the 13th Commission of Employment Equity (CEE) annual report at an "Employment Equity and Transformation Indaba" that is being hosted by her department.

Interestingly, the Western Cape Government did not receive an invitation to this Indaba despite a statement released by the National Department of Labour that announced the two day event. The Department of Labour’s announcement stated that:

"We want to forge strategic partnerships with other Ministries and Departments, Commissions and Councils to ensure synergy, alignment and effectiveness in government transformation initiatives moving forward."

We contacted the Department of Labour to ask why we had not received an invitation and were told that only "targeted" people had been invited to the event. This excluded our provincial government despite that fact that we are one of the entities being evaluated on our employment equity initiatives in the CEE annual report. (A representative from our government has subsequently been allowed to attend after we queried this omission at the highest level).

Tomorrow’s release also comes just seven months after Minister Oliphant presented the 12th CEE annual report in September last year where she made a point of attacking the Western Cape repeatedly, on what turned out to be spurious grounds and flawed calculations in the report.  It was clear that the Minister was determined to brand the Western Cape as the "worst" performer in employment equity.

Serious anomalies in the 12th edition of the CEE annual report

After analysing this report we raised a number of serious anomalies that called its credibility into question including:

• The CEE report said its figures reflected the status of employment equity during the period 1 April 2011 and 31 March 2012, however these figures weren't available at the time the report was compiled and released. Provincial governments were only due to submit these in October 2012.
• The workforce profile figures were presented as the Western Cape Government’s figures. However, the calculations included both provincial and local government data across the entire province. This resulted in a completely flawed and inaccurate picture emerging that alleged we were not meeting our targets when in fact 77% of our 50 521 senior employees fell within the designated "black group" meeting our targets.
• The CEE report contradicted statistics released by the Public Service Commission last June that found that the Western Cape Premier’s Office was the most "representative" out of the nine provinces, scoring 70%.

I wrote to Minister Oliphant on 18 September 2012, requesting a meeting with her to discuss these serious anomalies. I have not yet received a response, despite approaching her again personally to say we must discuss these (and other) major issues of concern.

Given the "weight" likely to be accorded to the CEE annual reports, we will study the 13th edition that will be released tomorrow, 18 April 2013 to determine whether these flaws have been corrected and whether the statistics contained in the report align with our own accurate records.

Flawed methodology used by the Department of Labour and the CEE

However, of far greater concern is the fact that this report revealed that the Department of Labour and the CEE are ignoring both the constitution and the law in their application of racial targets, turning them into strict quotas, and making race the sole criterion for appointments, in contravention of government policy and the law.

This methodology contradicts the intention of the Constitution and the Employment Equity Act. Neither requires national "demographic representivity" to be pursued without the regard to "the pool of suitably qualified candidates". Instead, the Employment Equity Act specifically excludes quotas and states that employers must implement affirmative action measures which are "designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer."

More importantly, Section 42 of the Employment Equity Act states that in determining whether a designated groups are equitably represented within an occupational category and level in an employer’s workforce, a number of factors must be taken into account including:

• The pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees.
• The economic and financial factors relevant to the sector in which the employer operates.
• The number of present and planned vacancies that exist in the various categories and levels, and the employer's labour turnover.
• The progress made in implementing employment equity by other designated employers operating under comparable circumstances and within the same sector.

When determining the progress made by provincial governments' the CEE fails to factor in these considerations and instead solely concentrates on one factor - the racial demographic profile of the economically active population.

However, if one only takes into account the first factor, namely the pool of suitably qualified people from designated groups the Western Cape Government can appoint people from, it becomes clear that we face a major challenge when it comes meeting employment equity targets.

For example, the Department of Labour and CEE often concentrate on the senior management service (SMS) when evaluating provincial governments.

Public Service Regulations require that persons appointed to the senior management service (SMS) in any government department must be in possession of:

• A three year university degree or equivalent.
• 5 years' experience at a management level.

Chapter 4, Part 2, Section A of the Public Service Regulations (2001) also states that the recruitment, selection and appointment of persons to the SMS "shall increasingly be competency-based so as to enhance the quality of appointment decisions".  So it becomes relevant and necessary to ask two questions, in terms of the Employment Equity legislation:

1. What is the demographic make-up of the economically active population in the region?
2. What is the demographic make-up of the pool of suitably qualified candidates in the region?

The following table shows the breakdown of the Western Cape Economically Active Population (ages 15 – 64) by level of qualification and race from which both the public and private sector must recruit:

The table show that only 1.7% (or 43 738) of African people and 2.1% (or 51 658) of coloured people out of 2 514 827 economically active people in the province have a three-year degree or higher. In other words a very small number of people potentially qualify to be appointed to the Western Cape Government SMS according to the national government's criteria.

So, if we apply the law as it stands, our targets for the senior management service of the Western Cape Government (which is a mere 75 people out of 80 000 employees) would be 16.8% black, 20.7% coloured, 2.9% Indian and 59.4% white. These totals do not take account of the required level of experience, which Public Service Regulations require, and which younger graduates do not yet have.  If this were factored in, the targets would be even more skewed. At the very top level, that is salary bands 15/16, 52% of incumbents are from the "designated black groups" and 47% are white (this includes white women who are also part of the "designated group" definition).

There is a challenge in the top bracket of professionally qualified specialists, which is salary band 13/14, where the real skills shortages lie. As Minister Manuel said recently in his talk to top government officials:

"There is a dearth of skilled professionals in the middle of the public service. This includes engineers, IT professionals, forensic specialists, senior prosecutors, subject advisers, supply chain management specialists, financial managers and legal experts."

These skills, and the necessary experience to work effectively at high levels in government, take years to develop. That is why the constitution and the law make the skills pool a key criterion, and that is why employment equity plans need to focus on building the requisite skills pool. That is exactly what the Western Cape us doing. So in the salary bands 13/14, where the most developed professional and technical skills are located, the "designated groups" make up 20% of a pool of 41 people.

At the next level, salary bands 9/10/11/12 are the key pipeline for building experience and ensuring excellence with equity. And here the figures are entirely different. 67.4% of the 18 872 employees in this category fall into the designated groups. The most productive and hard-working of them can look forward to promotions as they move up the career ladder. They will compete for top posts, not get them on the basis of political affiliation.

The totals for the Western Cape Government’s three top occupation levels (Top Management and Professionally Qualified Specialists covering pay classes 9 to 16) reveal that: 2 405 black; 9 811 coloured; 523 Indian and 6,199 white people are employed in these management positions (salary bands 9 to 16). This means that 67.2% of people employed in our top three occupation levels fall within the designated "black" group.

Compare that to the skills distribution across all demographies and you can see how well advanced the Western Cape is in implementing its EE plan. The critical brake on progress is the quality of public education for the majority of our children. This has to change. And it is ironic that one of the most racially "transformed" organisations in South Africa has (yet again) embarked on industrial action, which will continue to damage the life prospects of disadvantaged children who need education more than any other to get a foothold on the economic ladder so that they can get on in life.

The point is that nowhere does the Constitution or the law require racial head-counting or proportional "representivity" in relation to the demographic make-up of the population to be the basis of Employment Equity implementation. In fact, there are many other criteria that are mandated. It is therefore unconstitutional and unlawful to ignore these criteria.

There would be an outcry, for example, if we were to fill positions where applicants do not meet the basic criteria, in order to meet racial quotas. In fact it would be unlawful. And it is this flawed approach that has enabled the ANC to manipulate Affirmative Action to deploy their cadres into all senior positions, a factor that the NDP has found to be destroying government’s capacity to do its job. The NDP stresses that the primary focus of employment equity must be on education, training, opportunity, mentoring and staff development. In other words, employment equity starts at entry level, through the broadening of opportunities, not the manipulation of outcomes. The Western Cape Government's employment equity policies are aligned to the constitution the law and the NDP.

We focus relentlessly on building the "pipeline of promotion", broadening opportunities, emphasising training and supporting hardworking and capable people to climb the ladder on the basis of potential, initiative and added value. Just this week, I launched the Premier's Advancement of Youth (PAY) Project for 2013, in which 700 young people with matric are getting this opportunity to get their foot on the first rung of the economy's ladder so that they can get on in life. And we are already seeing the results of these interventions in our workforce profile statistics.

By promoting employment equity as envisaged by the Constitution and the Employment Equity Act we are ensuring that we achieve both equity and excellence. The constitution and the law see these as compatible concepts. So do we.

Last year Auditor-General Terence Nombembe estimated that 70% of municipal officials across the country were not qualified to perform their duties. He stated that this was one of the main reasons for stagnating audit outcomes and service delivery failure at a local government level. This is a powerful example of the extent to which the ANC's distortion of "Affirmative Action" policies to deploy its own cadres without regard to the criteria for the job or their own Public Service Regulations, have destroyed the ability of municipalities to deliver services to citizens.

It is critical that the National Department of Labour and the CEE move away from their unconstitutional racial head-counting quotas and start advocating for the affirmative action policies prescribed by the Constitution, the Employment Equity Act and the NDP, which all recognise that appointing suitably qualified people is a fundamental part of employment equity. Crucially, national government needs to start focusing on interventions that exponentially increase the pool of qualified candidates in our country.