Trade Union Consultation by Employers under Employment Equity Legislation  

Paper delivered at the 4th Regional African Congress of the International Industrial Relations Association (IIRA), Mauritius, 28-30 November 2005
Reproduced with permission of Prof Horwitz and the GSB UCT 
Authors: Harish Jain*, Loyiso Mbabane and Frank Horwitz, GSB UCT
Copyright © GSB UCT 2005
* McMaster University, Canada & Donald Gordon Visiting Fellow at the Graduate School of Business, University of Cape Town.  
Graduate School of Business, University of Cape Town (GSB UCT)
13 September 2007

Back to Workinfo.com Human Resources Magazine Volume 1, Issue 10, 2007

Contents

1. Introduction
2. Background
3. Purpose of study 
4. Background and rationale for Employment Equity
5. Legislative measures
6. Attitudinal barriers to joint consultation on Employment Equity
7. Employee consultation and participation
8. Employment Equity consultation between unions and employers
9. Trade union involvement in Employment Equity
10. Research methodology
11. Findings: Analysis of interviews with trade unions
    1. Consultation strategies used by unions
    2. Problems experienced by trade unions in consultation
       1. Degree of union participation
       2. Different interpretations
       3. Consultative structures  
       4. Consultation agenda
       5. Funding of union participation and education
       6. Other consultative interests  
       7. Trade union strategies for dealing with consultation difficulties
12. Views of the Department of Labour on Employment Equity consultation
    1. Procedural rather than substantive training of inspectors
    2. Enforcement
13. Summary of main issues in consultation
14. Human resource development, consultation and capacity building
15. Conclusions

16. References

1. Introduction  

The challenge of globalization and increasing competition has signalled a range of ideas and reflections on whether national policy-makers and organisations are capable of meeting the challenge of enhancing representation of historically disadvantaged groups in organisations. One such challenge is the extent to which equality of opportunity is afforded to members of increasingly diverse labour forces in the global economy. The juxtaposition of the dual imperatives of competitiveness and high performance on the one hand, and workplace justice and equity on the other, pose particular challenges in an emergent market like South Africa, where a redress of past discrimination in the labour market in respect of skills development, and discriminatory employment practices occurs at the same time as the need for associated productivity improvement and increased global competitiveness (Webster and Omar 2003). These twin imperatives tend to be perceived as mutually exclusive by certain employers, but it is argued here, that the opposite is important if a high skill economic model is to be followed. Particularly relevant is the nature and extent of trade union involvement in these processes, the focus of this study.  

2. Background

Localisation, Africanisation, and indigenisation are various post independence terms used to describe the process of legislative and socio-economic redress of past inequalities occurring under colonial rule in African countries. In some countries the nomenclature has including use of the country’s name, such as Zambianisation. Under colonialism a colour bar created barriers to skills development and upward mobility for Black employees. In South Africa workplace relations have undergone major changes over the past two decades. The Labour Relations Act (1995) established a new labour court, a labour appeal court, and the Commission for Conciliation Mediation and Arbitration (CCMA). Industrial councils were transformed into bargaining councils. Over 70 per cent of disputes referred to the CCMA deal with unfair dismissal cases.

The CCMA handles both procedural and distributive or substantive justice in considering the fairness of a matter and claims of unfair discrimination. The new Act sought to bring employment law in line with the constitution and with the ratified Conventions of the International Labour Organisation. A primary purpose of the Labour Relations Act is to enhance economic development, social justice, labour peace, and the democratisation of the workplace. It aims to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution. Section 27 in the constitution entrenches workers' rights to form and join trade unions, to strike for collective bargaining purposes, and the right to fair labour practices. Employers have the right to form and join employers' organisations and the recourse to the lockout for the purpose of collective bargaining. Strike action is protected only if a specified dispute procedure is followed. 

The Labour Relations Act seeks to promote employee participation in decision making through workplace forums and employee consultation and joint decision making on certain issues.  It provides for simple procedures for the resolution of labour disputes through statutory conciliation and arbitration, and through independent alternative dispute resolution services. Amendments to the Act came into effect on 1 August 2002. These are designed to ease the strain on the CCMA of the large number of cases that have led to a backlog in arbitrations and to address other perceived shortcomings of the Act said to hinder investment. New forms of dispute resolution were developed to include pre-dismissal arbitration and one stop dispute resolution known as CON-ARB.  Both unions and management have the power to request the CCMA to facilitate retrenchment negotiations to achieve constructive outcomes.

Whilst trade union growth to some 1.2 million members in the largest union federation, the Congress of South African Trade Unions (COSATU) occurred in the period 1979-2004, post apartheid South Africa has seen in certain industries a decline in union density under conditions of increased globalisation, organisational restructuring with consequential downsizing, increasing use of flexible non-core/non-standard labour with large job losses in formal sector firms in clothing and textiles, building and constriution and mining for example. 

A key challenge in employment relations, is the need to shift from a legacy of adversarial relationships to employee participation and workplace cooperation; this in spite of an environment of increased employment insecurity. Without cooperation in the workplace companies cannot compete in the market place. There is evidence in some sectors such as auto assembly that this is understood by both parties. There is increasingly a blurring of the distinction between employment relations and Human Resource Management (HRM). The new agenda focuses beyond the traditional collective bargaining items and adversarial dismissal disputes, to the nature and extent of trade union participation for example in employment equity (EE) planning, enhancing workplace diversity and organisational transformation, issues such as Black Economic Empowerment (BEE), performance improvement and human resource development. With weaker trade unions in many African countries, union participation in EE or localisation matters appears to be less prevalent than in South Africa. 

This issue – the nature and degree of trade union participation in EE policy and practice in South Africa, forms the basis for the paper. Indeed, finding a productive balance between equity and workplace justice imperatives on the one hand, and HR and employment relations strategies enhancing competitiveness on the other, is a vital challenge for managers and unions in South Africa (Horwitz, Nkomo, & Rajah, 2004).

3. Purpose of study  

Whilst the debate on EE or attendant nomenclatures is more recent in South Africa, the drive for public policy and organisational practices seeking to advance indigenous workforce development and advancement has a longer history in African countries than in South Africa, starting in Zambia for example in the 1960’s. Generally however, there is a paucity of research on the continent focusing specifically on trade union consultation in respect of EE or equal opportunity plans at the organisational level. Whilst union movements have been consulted in the drafting on such legislation in countries such as South Africa and Canada, it is proposed in this investigation that their actual de facto participation in EE planning and implementation at organisational level is lower. This, notwithstanding that legislation has in various jurisdictions, a requirement that trade unions be consulted. 

A difference between South Africa and other Southern African states in respect of lessons which might be drawn from consultative processes is that colonial regimes withdrew back to their home countries whereas in South Africa the Apartheid government negotiated a settlement in which the previous rulers remained in the country as citizens, and retained a legislative framework for employment relations. This framework, though subsequently amended, had even under Apartheid put in place certain basic employment rights including trade union consultation and negotiations. The aim of this exploratory study is to gain a deeper understanding of trade union perspectives and involvement on consultation in the EE planning process in organisations in South Africa.

4. Background and rationale for Employment Equity  

The policy and practice debate is particularly poignant in the case of South Africa where the challenge is of addressing fairness in employment practices in order to create work environments in which employees can experience job satisfaction and also optimally achieve company objectives (Becker, 1971). These are issues of critical importance in South Africa as it competes in a global economy. Equality of opportunity, employment equity and related affirmative action policies that increasingly create diverse workforces have also become critical challenges for both public- and private-sector policy makers and managers (Jain, Sloane & Horwitz, 2003). In South Africa workplace inequalities have historically been directed at the majority of the population. In 1999, 17 million people were estimated to comprise the South African labour force, with 34 per cent of the economically active population being unemployed (World Bank, 2001).

Historically, the South African labour market was a distorted one, with access to education, skills, managerial and professional work based on race and ethnicity (Jain, et al. 2003). While statutorily based racial discrimination has systematically been abolished since 1980 and significant labour law reforms have occurred in the last ten years, the apartheid labour market has left the majority of the economically active population of South Africa inadequately trained and economically disempowered, with the attendant effects of historical discrimination still evident today. 

According to the 2002-2003 annual report of the Commission for Employment Equity, the representation of Blacks (Africans, Coloureds and Indians) increased in top and senior management positions between 2000 and 2002, the growth of Black workers at the professional and middle-management level has dropped over that period. This means that the pool from which to promote Blacks into senior positions is declining (Business Day, July 14, 2003, page 2). According to the report, Blacks accounted for 19% and Whites 81% of all top management positions. Africans accounted for 10% of top management positions (African males 8% and African females 2%), Coloureds 4% (Coloureds males 3% and females 1%), Indians 5% (Indian males 4% and females 1%) and Whites 81% (White males 71% and females 10% of all top management positions  (Commission for Employment Equity: Annual Report 2002-2003, July 13, 2004, page 18). Africans accounted for 10% of top management positions in 2002 compared to 6.2 % in 2000. During the same period (2000-2002), there was an increase of 5.7% of Blacks and an increase of 1.3% of females at top management level; an increase of 3.7% of Blacks and an increase of 0.6% of females at senior management level; and a significant drop of 12.7% of Blacks and a drop of 12.3% of females at the professionally qualified level (CEC: Annual Report 2002-2003, July 13, 2004, page ix). 

The South African Department of Labour (1999) notes that white people have a 104 per cent wage premium over Africans and that men earn approximately 43 per cent higher wages than similarly qualified women in similar industrial sectors and occupations. Accordingly, the South African government has, since 1994, prioritized the redressing of years of workplace discrimination. 

In addition to introducing legislation aimed at protecting the rights of employees, the government has enacted laws aimed at eliminating unfair discrimination and promoting equity in the workplace and providing for a statutory levy based system for skills development for working and unemployed people. Whilst earnings differences for work of comparable worth can be identified at macro-level, in organisations one of the most difficult forms of unfair discrimination to prove is that of pay as there are factors other than race that have been argued account for differences in pay; for example, experience and service or seniority. Trade unions with their direct interest through collective bargaining, in pay issues have been hard pressed despite a legislated burden of proof on employers, to win labour court cases on claims of unfair discrimination, especially regarding pay (Horwitz, Jain, Steenkamp and Browning, 2002).  

This study provides a background to employment equity legislation in South Africa focusing on employee participation through trade unions and forms of consultation such as workplace forums, on the legislative requirement for such consultation between unions and employers. This poses policy and practice implications for trade unions and managers as well as policy makers as they strive to promote employment equity progress.  

5. Legislative measures

In the 1990s, South Africa enacted some of the most progressive legislative measures, including the Labour Relations Act (LRA) in 1995, the Employment Equity Act (EEA) in 1998, the Skills Development Act in 1998 and the Promotion of Equality and Prevention of Unfair Discrimination Act in 2000. South Africa has patterned its Employment Equity Act and a part of the Constitution Act of 1996, such as section 9(2) of the Bill of Rights, on the Canadian Employment Equity Act and the Charter of Rights and Freedoms. 

The South African Employment Equity Act aims to redress historical workplace discrimination against blacks (Africans, Coloureds and Indians), as well as women and people with disabilities (all collectively referred to as the "designated groups"). The objective of the Act is to achieve equality in the workplace by the elimination of unfair discrimination and the promotion of equal opportunity through the implementation of positive and proactive measures (termed "affirmative action measures") to advance members of the designated groups. The Act requires employers with fifty or more employees or those who have certain specified financial turnover to undertake affirmative action measures. Such measures are aimed at ensuring that the designated groups have equitable representation and are consulted through their representative(s) or union in respect of such representation in all occupational categories and levels in an employer’s workforce, consistent with their availability in the external labour market and their demographic representation within the economically active population. The Employment Equity Act requires that employers give due consideration to a "suitably qualified person" in the recruitment of members of designated groups. Such a person may have a combination of formal qualifications, prior learning, relevant experience or capacity to acquire, within a reasonable time, the ability to do the job. Capacity to acquire the ability to do the job may require training and support and the Employment Equity Act, along with the Skills Development Act, requires employers to provide training to members of designated groups. An employer is required to consult with a recognised trade union(s) on these decisions and on the Equity plan as a whole.   

6. Attitudinal barriers to joint consultation on Employment Equity

When considering government interventions to regulate labour markets,  Walker (1993) notes that business leaders tend to be critical of such interventions. Opposition to employment equity legislation in South Africa has been manifested in arguments citing over-regulation of the labour market, in a decrease in foreign and local direct investment and in willingness to engage in entrepreneurial initiatives, especially in medium and small business sectors. Such sectors together contribute nearly 33 per cent of GDP and nearly 45 per cent of private-sector employment (Dickman, 1998). Other arguments include the following (Thomas & Jain, 2004):

Strategies to achieve employment equity, by definition, are meant to advantage those who have been most discriminated against historically. Inevitably such beneficiaries have suffered disadvantage, not only in the workplace but also in obtaining access to other societal resources, paramount among which is education. The resultant shortage of skills in some sectors will make (primarily black) skills more expensive and unaffordable for smaller companies, further providing disincentives for investment and expansion. Added to this, it has been argued (Dickman, 1998; Jafta, 1998) that, rather than new jobs being created for new entrants to the labour market, employees will simply be shifted from some employers to others who can afford the higher wages. It is further argued (Dickman, 1998; Jafta, 1998) that heavy administrative costs in the private sector relating to compliance with the legislation will impact on company growth and, accordingly, upon optimal growth in the private sector. Time and effort in joint consultation and the potential divisiveness if employers consult designated groups only, may raise workplace conflict potential. In addition, it is alleged that these kinds of costs to government, and hence the taxpayer, will be increased by the administrative burden of monitoring and enforcing the legislation. Legal structures would also be overburdened and unable to cope with cases where legal rulings will incur indirect opportunity costs through poor hiring decisions in order to reach employee targets required. Jafta (1998) further argues that employment equity in South Africa may result in declining morale and loyalty of previously advantaged groups who, historically, have acquired skills relevant to achieving market competitiveness and who now feel they are not consulted. She also notes that through the notion of designated groups, race classification will be heightened, promoting a social cost by reinforcing "negative stereotypes, racial tension and stigmatisation that thwarts efforts of members of the preferred groups to pursue their goals on merit and hard work rather than preferential treatment" (Jafta, 1998: 5). In addition, it is claimed by some that those from designated groups who still require training, development and consultation will have unrealistic short-term expectations that will further increase racial and social tensions within companies. Antagonistic perspectives on employment equity also assert that, expecting secured positions, a culture of entitlement "that undermines initiative, self confidence and self-reliance" occurs (Jafta, 1998: 5).

However, Jain (1999) argues that without government intervention in the form of employment equity legislation, less progress would be made by employers to redress historical workplace inequalities. In support of this view, Thomas and Robertshaw (1999) note that, while business leaders recognized the implications of socio-political reform in the country as early as the 1980s, little change was evident over the ensuing years in terms of addressing workplace discrimination. Contrasting arguments are presented below to provide a coherent set of perspectives. In a country characterized by historical discrimination, employment equity legislation offers the possibility of assisting the redressing of such unfair discrimination in the following ways:  

1. Ensuring that employers focus on members of all designated groups, including Africans, Coloureds, Indians, women and people with disabilities and consult with their trade union(s) (Jain, 1993).  

2. Encouraging a greater number of employers to devise new and innovative measures proactively to recruit, promote and train people from designated groups. Such creativity would, hopefully, go beyond the "poaching" of black employees by one employer from another (in order to achieve numerical targets only) to the systematic and holistic planning of staffing.

3. Motivating employers to develop comprehensive human resources information systems that could replace crude, unscientific and ad hoc practices so that charges of unfair discrimination can be addressed on a rational and scientific basis (Jain, 1993).  

4. Sensitizing employers to labour market demographics pertaining to members of designated groups while developing their employment equity plans in consultation with trade unions (Jain, 1993).  

5. Black Economic Empowerment (BEE) is expected to further the achievement of EE goals and timetables (Thomas & Jain, 2004).  

7.  Employee consultation and participation

A conceptual framework for evaluating trade union participation is required. In this regard, Anstey (1997) and Salamon (1992) define employee participation as a range of influence employees may have on decision making, ranging from task centred to power centred forms. Joint consultation is seen within this framework as task centred with some degree of power to influence but not to make, negotiate or co-determine workplace decisions. It is an indirect form of participation in that employee representatives or shop stewards participate on behalf of employees to represent them. This is sometimes known as representative rather than direct participation. 

Internationally, there has been a growing trend in the last four decades or more towards worker participation in management. Some of the forms of worker participation and joint consultation have included just-in-time initiatives, especially in manufacturing firms started by Japanese firms, quality circles, self-managed teams as in General Motors/Saturn, safety and health committees mandated by legislation in several countries, information sharing programs, joint labour-management committees, employee ownership programs, and workers’ representation on corporate board of directors. (Du Toit et al., 2003). As du Toit et al. (2003) note, systems of worker participation internationally, take a variety of forms. The systems which parallel South Africa‘s system are the German and Dutch systems of works councils. 

In South Africa, a growing number of enterprises have introduced voluntary structures to involve employees in aspects of decision-making in order to enhance cooperation between labour and management and to promote "employee stakeholding and involvement in the wealth creation process" (Anstey, 1997). 

Much of the debate regarding employee participation involves issues of power sharing in the workplace. Employers might feel that it restricts their managerial prerogative and flexibility in decision-making. Trade unions feel that it threatens to undermine trade unions by blurring the distinction between management and employee interests. As du Toit et al. (2003) note, in practice the spectrum of participation ranges from those that are extensions of management to those that are fully accountable to employees. 

In a number of European countries, statutory systems of employee participation have co-existed with independent trade union movements and the trade union movement has accepted the principle of employee representation elected bodies (board of directors of a company) that are outside union control (du Toit, 2003). Employee participation in contrast to collective bargaining would pose a less adversarial character and lower social cost, but “forms of representational participation such as consultation fall short of joint-decision making in terms of influence ceded to employee representatives” (Klerck 2000: 8-10). 

In the South African context statutory workplace forums have not had trade union support (Kirsten and Nel, 2000, van der Walt 1999). Unions have historically preferred more independent and militant positions, being suspicious of potential co-option and erosion of class struggle, though these may be unfounded (Kester, 2002). This begs the question then as to what extent if any, such forums have been used for consultation and consensus seeking on EE matters. In the public sector where part of this research is conducted, the promotion of EE is a constitutional obligation. Legislative measures such as the Employment Equity Act (1998) as well as the Labour Relations Act (1995), institutional mechanisms such as the White Paper on Affirmative Action in the Public Service, the Public Service Commission and the Department of Public Service and Administration, and White Paper on Human Resource Management in the public service all contain provisions that promote EE in the public sector. Though trade union consultation is ostensibly a component of these measures, as evidenced in this study, this process is not properly utilized.  

8. Employment Equity consultation between unions and employers

Employers covered by the EEA are required to enter into consultation about the formulation and implementation of an EE plan with representatives of trade unions in their company as well as employees or their representatives. However, the EEA does not define the content of the duty to consult, unlike the Labour Relations Act, (LRA), (du Toit et al., 2003: 599). Consultation under the LRA means:  

1. putting proposals rather than finished decisions to unions/employees; 

2. disclosing all relevant information; 

3. allowing the trade union/employee representatives to respond to these proposals; 

4. responding to alternative proposals, and, if not acceptable by the employer, explaining the reasons of rejection (du Toit et al. 2003: 599). 

The Employment Equity Act (EEA) has significant provisions on employer consultations with trade unions and employee representatives. For instance, section 16 requires a designated employer to take reasonable steps to consult and attempt to reach agreement with a representative trade union representing members at the workplace and its employees or representatives nominated by them; or if no representative trade union represents members at the workplace, with its employees or representatives nominated by them. The nominated representative must reflect the interest of employees from all occupational categories and levels of the employer’s workforce; employees from the designated groups; and employees from non-designated groups.

The designated employer in sections 17 and 19 is required to collect information and conduct an analysis of its employment policies, practices, procedures and working environment, in order to identify employment barriers which adversely affect people from designated groups and this analysis must include a profile of the designated employers’ workforce within each occupational category and level in order to determine the degree of under-representation of people from designated groups in various occupational categories and levels in that employer’s workforce. A designated employer is required to consult the parties in the preparation and implementation of the employment equity plan and the report submitted to the Department of Labour. According to section 18, when a designated employer engages in consultation, the employer must disclose to the consulting parties all relevant information that will allow the parties to consult effectively. In addition, the ‘Code of Good Practice’ issued in 1999, suggests that consultation should include: 

1. an opportunity to meet and report back; 

2. reasonable opportunity for employee representatives to meet with employers; 

3. the right to request, receive, and consider relevant information, and 

4. adequate time for the above steps.

Hence, legislation and the good practice guides suggest that employers ought to seek consensus instead of taking counsel (du Toit et al, 2003: 599). Also, an employer who has an EE plan must make a copy of the plan available to its employees for "copying and consultation" (du Toit et al, 2003: 610). Section 34 allows any employee or trade union representative to monitor and bring an alleged violation of the Act. Poignantly, the protective role of trade unions is one of its prime reasons for existence; this extends in concept to protection against unfair discrimination and potential involvement of unions in policy determination and practices aimed at removing such discrimination (Jain et al 2003: 171-172).

Thus, we define consultation in this study to mean that unions/employees are provided with 

1. sufficient information in order to understand the proposed plans and actions; 

2. appropriate contributions to the consultation process; 

3. a free and open discussion, 

4. a clear indication that the employer gave careful consideration to the feedback provided by unions/employees. 

The EEA also requires the formation of a consultative forum, and where workplace forums exist, employers are required to consult and reach consensus with such a forum; that workers representative should reflect all categories and levels of the workforce and employees from both designated and non-designated group employees (du Toit, 2003: 600). The Code of Good Practice by the Commission for Employment Equity suggests that a consultative forum should be established for consultation with a designated group and other employees or an existing forum utilized comprising designated and non-designated group employees.  The Act also requires employers to identify and remove any barriers in employment experienced by the three designated groups. Although employers are required to report on only four areas (i.e. wages, promotions, hiring and termination), barriers in employment can exist in a wide variety of employment systems. These include all aspects of the total compensation package, opportunities for training and development (despite the Skills Development Act), conditions of employment and all the rules and procedures that govern the processes of layoffs, recall, disciplinary action in addition to recruitment and selection, advancement and development opportunities and termination covered by the Act. With this in mind, it would be logical to assume that union involvement and cooperation is necessary in meeting the requirements by the Act and achieving equality of employment in the workplaces covered by the Act. But what is the nature and extent of unions’ involvement in employment equity efforts?  

9. Trade union involvement in Employment Equity

The Congress of South African Trade Unions (COSATU) is the largest trade union federation in South Africa. It "bemoans its exclusion from policy-making and governance decisions" in a central executive committee document prepared ahead of a tri-partite alliance meeting as the union went into the 2004 summit with its political alliance partner the African National Congress (ANC) (Msomi, 2004). The COSATU document complains about lack of overall consultation by government officials. As we will note, based on our interviews with COSATU officials, they are even more critical of lack of consultation by employers. While several organisations, especially some of the large ones, have various forms of employment equity plans or programs in place; documented evidence of union involvement in employment equity issues in the forms of consultation or collaboration or the functioning of joint employment equity committees is almost non-existent. There are a number of reasons, some of which are discussed as follows.

First, the requirement to consult with employees’ representatives or bargaining agents on issues related to EE does not specify the level of consultation or how and when such consultations should be carried out. As the Act is silent on what constitutes consultation with the bargaining agents, this requirement is difficult if not impossible to enforce. 

Second, obligations under the Act seem to be imposed only on the employer that gives an impression of a diminished role of trade unions in setting up and implementing such plans. Employers are tasked with reporting requirement and the onus of compliance rests solely on the employers. 

Third, as trade unions usually do not have a role to play in the recruitment and selection process, it may be an excuse for unions to avoid the difficult task and justify any non-participation in the achievement of employment equity. Moreover, promotions and terminations in unionized workplaces are usually governed by the “seniority” principle”, particularly in countries such as Canada and the United States of America, which may potentially clash with the equity principle. 

Most employment equity efforts begin with the setting up of an employment equity advisory committee and having an employment equity coordinator. The roles of unions, however, are often not clear or nonexistent in firms’ employment equity policies. In general, larger organisations are more likely to have the resources to devote to EE efforts, e.g., major banks, and parastatal organisations like Transnet in South Africa. The results in North American studies indicate that management usually sees union officials as hostile to EE. And some employers think that collective agreements actually hinder EE initiatives. In the past years since the inception of the Act, few examples of joint union-management employment equity committees have been documented.

COSATU was in part responsible for pushing the national government to enact the EEA. However, in interviews with the researchers, some of the COSATU unions indicated that they have not taken it seriously and that EE has not been a part of collective bargaining with employers. Annual consultations between unions and employers are merely an opportunity for management to share the results of the reporting process. Trade unions’ contribution to the achievement of employment equity to-date is not clear. Most unions are in favour of the legislation as unions are institutions that have strived to fight for workers’ rights, especially during the apartheid era. Evidence on how unions have helped each of the three designated groups is sparse and probably dependent on the membership pattern in different regions or industries. It is however argued that for federations like COSATU, employment equity is meant to be part of a more integrated process of providing basic skills training for workers as part of a broader human resource policy (Collins 1994). Elements of this policy include integrated and certified education and training linked to economic planning and restructuring, paid education and training leave, retraining, skills-based pay with training linked to grading and remuneration, recognition of acquired skills and prior learning and career planning. The Southern African Clothing and Textile Workers’ Union argues that affirmative action will need to involve the extension of collective bargaining beyond the agenda of wage rates and conditions of employment (Patel 1994). Notably there is some critique within the union movement of the lack of progress internally in respect of involvement, under-representation and unfair discrimination of women (Horn 1995 Orr, Daphne, and Horton 1997, and von Holdt 1997). Several COSATU congresses have taken resolutions about the need for improved participation and representation of women in union leadership positions.  

10.  Research methodology

Given the exploratory nature of this research and the mainly qualitative data type, a structured interview schedule with pre-set questions based on the literature and legislative requirements for consultation, was used. Interviews with trade union officials, inspectors from the Department of Labour (DOL) were carried out together with documentary analysis of Qualitative Assessment Reports filed by employers regarding union consultation. Focus group meetings with Unions were also used in addition to direct individual interviews. The former were used with COSATU in Cape Town and Johannesburg, HOSPERSA in Cape Town and Johannesburg , the South African Municipal Workers Unions (SAMWU) in Cape Town. Focus group meetings with DOL inspectors in-charge of EE enforcement in Cape Town and Johannesburg took place. Data was also obtained from Qualitative Assessment Reports filed by selected employers with the DOL. 

The use of content analysis is considered apt for interview transcribed data where the researcher seeks common constructs, phrases or themes from the data (Cassell and Symon, 1997: 25, and Saunders et al 2003: 379). The focus is on interpretation rather than quantification and concern with context (op cit: 7). Qualitative research is “less likely to impose a priori classifications on data collection and is also less likely to be driven by very specific hypotheses and categorical frameworks and more concerned with emergent themes and idiographic descriptions and inductive research methods” (Cassell and Symon op cit: 4). 

Five trade unions and union federations took part in our study. These were: 

1. The Congress of South African Trade Unions (COSATU) with 1.9 million members and is the principal federation of South African trade unions aligned with the governing party-African National Congress-(ANC) and the South African Communist Party. 

2. HOSPERSA is the Hospital Personnel Trade Union of South Africa. It has 60,000 hospital worker members and is affiliated with FEDUSA (the Federation of Unions of South Africa). It asserts to be a politically independent federation with 540,000 members and 26 affiliated unions. HOSPERSA did not sign Resolution 7 of the Public Service, which concerns transformation and employment equity; because it views the conditions under which this was signed were less favorable than those offered by the Labour Relations Act. 

3. The Public Servants Association of South Africa (PSA) has 200 000 members and is affiliated to FEDUSA. 

4. SAMWU, the South African Municipal Workers Union has 122 000 local government members and is affiliated to COSATU.  In our sample SAMWU officials representing the membership in Cape Town were interviewed. 

The focus of this study is on trade unions. A limitation and area of potential further research is to elicit comparative qualitative data on employer perspectives on EE consultation and to analysis perceptual and actual gaps between the parties in respect of consultation. There may be some degree of halo effect bias in probing union concerns about perceived inadequate consultation; whereas further research may hypothesize inconsistent opinions between these parties, with employers likely to hold more positive opinions. 

Notably however, such qualitative data “are based on meanings expressed through words, a collection of non-standardized data requiring classification into categories and analyzed through the use of conceptualization as an interactive process" (Saunders et al 2003: 378). This approach based on grounded theory, firstly seeks a rough definition of the phenomenon to be explained (in this case, an understanding of the consultation process in respect of EE), secondly, seeking possible explanation(s) in relation to theory (such as that dealing with employee participation as a range of influence) and thirdly, to determine to what extent theory and data are aligned (Saunders et al op cit: 379).   

11. Findings: Analysis of interviews with trade unions

This is an analysis of the interviews with SAMWU, HOSPERSA and COSATU both in Cape Town and Johannesburg. This summary focuses on consultation between unions and employers and whether employers consulted with their trade unions before submitting an EE plan to the Department of Labour. The problems experienced by the trade unions are identified, as well as the ways in which the trade unions dealt with these problems.  

11.1. Consultation strategies used by unions

The different trade unions in their consultation with employers used different strategies in their dealings with different employers. However, a common feature in consultation was that a bargaining council or a consultative committee was set up or used for this purpose. Sometimes a smaller group was established in a union to deal with a particular employer. SAMWU established a working group in dealing with the city of Cape Town. It comprised 50% of the employer party and 50% of trade unions/employees. COSATU in Johannesburg established task forces with their sub-committees to deal with a certain large employers. 

However, these working groups or task forces did not have any decision-making powers. Decisions were subject to the ratification of the bargaining council (in the case of SAMWU) and the national negotiating committee (in the case of COSATU), which came from four different provinces.  

11.2  Problems experienced by trade unions in consultation

11.2.1  Degree of union participation

Unions argued that in most cases employers unilaterally drafted the EE plan. Once it was put together, there was no proper consultation with unions by the employers. COSATU found that in very few cases the shop stewards were actually involved in the drawing up of the document. It was shown to the trade union and they would be asked to counter-sign it. It was the general feeling that employers only did this in order to comply with the provisions of the EEA, and so to be seen in a ‘good light’. However, unions argued that it did not appear that their input was seriously considered and included in revisions to the plan. SAMWU and COSATU unions felt that employers were more concerned with compliance in respect of plan submission to the DOL than implementation of these plans. HOSPERSA indicated that employers thought that they did not have to consult the union at establishment level, and that it was sufficient for them to consult only their employees.  

11.2.2  Different interpretations

Many problems around EE planning and implementation appear to be of an interpretative nature. A common problem appeared to be that the employers and trade unions had different understandings of certain pertinent terms. This hindered the consultation process. For example, some employers’ conception of "consultation" was that it was enough to simply inform the union, and that "consultation" did not entail agreement or consensus. Trade union respondents generally did not consider that this was sufficient. SAMWU also found that employment equity was understood in a limited way to only entail appointments. SAMWU felt that EE also encompassed sexual harassment, gender discrimination and even abuse, and HIV/AIDS. Similarly, COSATU found that equal representation on the committee was construed by the employer as having primarily racial representation on the committee. Gender appears to be a lower priority.   

Another interpretative problem arose concerning what was meant by the term "black" in terms of representation of various groups and their demographic representation based on regional demographic variations. It was understood by trade unions in a broad sense to include African, Coloured, and Indian people while SAMWU found that a certain employers focused their EE plans and associated human resource practices such as recruitment and selection only on Africans. HOSPERSA argued that race is a sensitive issue in consultations. Its officials asked if "black" meant "non-white" or is a "black" person an African language speaking person? Employers, it argued, tend to automatically employ an African person. SAMWU felt that in most cases the union representatives were more informed than the employer on EE matters such as legislative provisions dealing with the need for consultation.

Whilst it may be argued that interpretive differences may be due to different levels of knowledge about the law and are therefore of an educative nature, it is concluded that the reasons for these differences are more deep-rooted. In some instances they are expedient or instrumental reasons in that a focus occurs on groups with which an employer is more familiar with or which are more available in respect of market supply. A second and allied reason related to supply-side demographic differences in various regions in the country. This is coupled to skills and knowledge residing in some instances in certain groups more than others. A third explanation is an attitudinal one relating to cultural or social distance or proximity. Groups which “may be more like me”, may linguistically for example, speak the same language, though of a different race and therefore may have closer affinity. The converse also occurs in South Africa because of Black Economic Empowerment requirements which specifically require Black African economic empowerment in various industry or sector empowerment charters. This is also given content to in respect of EE planning and allied human resource practices such as selection and recruitment and promotion policies.  

11.2.3  Consultative structures  

COSATU trade unions have encountered problems concerning membership of consultative committees. Employers, according to the unions would tend to load the committee with non-union members, thus undermining the influence of the union. These employees did not understand the policy and philosophy of the union and therefore, did not advance the union’s interests. According to the unions interviewed this was a form of window-dressing, where an employer might prefer to talk with "tame" representatives rather than independent union representatives. COSATU also found that the employers refused entry to those unionists it perceived to be "trouble makers". However, this meant that an employer was making a decision unilaterally as to whom should be represented on consultative structures. In addition, the employer treated the union as though it was just there to share the information, rather than to make inputs and contributions to the EE planning process. Hence the level of employee participation would seem to be in many cases of information giving type rather than full joint consultation or joint planning and problem solving.

In this regard, a problem experienced by all these unions was in getting access to EE information. SAMWU for example, did not have the capacity to do so and this hindered progress. SAMWU wanted to get information from the employer concerning the staff complement so that it could make meaningful changes, but it was not getting this information. COSATU found that employers were reluctant to disclose information such as wage differentials. Therefore, it experienced difficulties in identifying selection and recruitment policies and discriminatory practices within the company and in closing the wage gap. COSATU also argued that employers were reluctant to disclose information in general. Certain employers did not have the EE plan available on the website, nor on the company bulletin boards, even though this is a legal requirement. The employers argued that this information might be misinterpreted and create hostility, and only published non-contentious things such as mission statements and health and safety policies. Another problem was related to shop stewards’ roles. COSATU indicated that shop stewards were reluctant to raise concerns in respect of the EE plan because the employer would know who had raised the concern, and the next day that shop steward would be victimized.  

11.2.4  Consultation agenda

During consultation, HOSPERSA felt that all issues including skills development and training, EE, and gender issues, tended to be lumped together. HOSPERSA and COSATU argued that financially important issues to the company, substantive issues such as wages and conditions of employment and allied "bread and butter" issues, tended to be discussed first and important issues such as EE were relegated to a sub-committee; and eventually they were not adequately dealt with being given a lower priority on the employment relations agenda in organisations. Allied issues like human resource development, technical skills training, learnerships, career and human resource planning were not discussed with unions.  

11.2.5  Funding of union participation and education

COSATU indicated that its affiliates experienced problems with funding. Money was needed towards consultation for shop stewards and workers’ development. Yet resources appeared to be dispersed elsewhere towards capacitating of managers. SAMWU too tended to rely on membership fees and therefore, needed other financial resources. It was a common view in COSATU and HOSPERSA that government should have done more to educate ordinary people when the EEA was promulgated. Since the DOL did not do enough to educate and empower  trade unions to consult effectively, unions needed to do their own education and consultation, which was not always as effective as if the DOL had taken on the responsibility for educating unions. COSATU said that unions did not feel confident that if they approached the DOL with complaints they would get they wanted. This is clearly a contentious issue; and it might not be implausible for the DOL to hold that trade unions today too have an important educative and developmental role and not only a collective bargaining one. This especially as the employment relations agenda has widened beyond traditional wage bargaining to the vital areas of human resource development

11.2.6  Other consultative interests  

COSATU felt that a major concern of the unions was the role of Skills Development Facilitators (SDF) and consultants. In the Western Cape, 85% of the SDFs registered with the SETA were white males. These were allegedly people who resisted transformation of the workplace in the past and it was for unions unacceptable that they were now expected to drive the process. 

Another concern, said COSATU, was the number of companies that engaged the services of consultants. Private consultants may have more than 40 companies on their books and consultants usually came up with the same or very similar EE plans for all employers. The process has arguably been commoditised and compliance oriented rather than on deep-rooted attitudinal and work culture change. There are however, some differences between trade unions and federations on what constitute real priorities. For example, a criticism leveled by HOSPERSA was that agreements by COSATU were not always concluded in the best interests of workers, but rather with a view to political stability (in light of COSATU’s alliance with the African National Congress (ANC)).  

11.2.7  Trade union strategies for dealing with consultation difficulties

It was a common theme for unions interviewed that when an employer needed the signature of the trade union on an EE plan, the trade union would use this as leverage to get something that it wanted. For example, HOSPERSA refused to sign a document concerning the rebate that the employer would receive under the Skills Levies Act, until the employer had developed a plan that included empowerment of, and skills development for, black people. The union says it needs a strategy to more fully penetrate all sectors. The union does not have this at the moment and that consultation committees for EE are non-existent in most workplaces. Therefore, there is a need according to HOSPERSA to develop workplace committees and capacitate them and link them up at regional and national levels. COSATU suggested that where the employer treated the union as though it was just there to share information, it would refuse to countersign anything. Another example was that a certain employer was meant to receive grants from the DOL to enhance development. It was agreed that if the employer submitted EE plans which SAMWU had not signed, the DOL would not pay the grants.

COSATU objected to what it termed "sham consultation" in one case with a large employer and its union. A union official had planned to raise an issue of inadequate consultation with the Directorate of Employment Equity to ensure that this employer was investigated nationally. HOSPERSA felt that it could remedy the situation by making its own submissions to the employer to try to get the employer to agree to these. Since EE committees were non-existent in most workplaces, HOSPERSA thought that it should try to establish committees which then had to be capacitated. SAMWU had made proposals and tabled a document setting out its targets for the next five years. COSATU felt that the company should approach the union at the infant stages of implementation in order to get the union’s opinion, so that the process was an inclusive one, and a plan was developed together. 

COSATU also thought that the unions should come down harder on the DOL. COSATU said that the unions needed to empower themselves with the details of engagement, and that National Office should have been engaging unions so that awareness was created at an affiliate level. There appear therefore to be different perspectives within the union movement on how to address the lack of a coherent approach internally within the union movement, but also in relations between the unions and the DOL. 

There is clearly a general lack of strategic thinking in relation to union participation in EE planning. Trade unions will need to place EE higher on their own agenda especially if they are to move the agenda beyond traditional collective bargaining matters to the critical imperative of human resource development and arguably a more strategic need in relational to national development needs.  

12 . Views of the Department of Labour on Employment Equity consultation

Twelve inspectors of the DOL in Johannesburg and Cape Town were also interviewed. Inspectors felt that their training by the DOL was too short and dealt with procedural (such as going through checklists) rather than substantive matters. They felt that the DOL wanted them to play an advocacy rather than an enforcement role of the EEA. They claim they were led to believe that the EEA was still “new” and that the focus should be on advocacy and that inspectors should not be policemen. The inspectors also felt there were too few of them, especially in a large province like Gauteng, to cope with a very large number of companies in the province. They submitted that not all of them could carry out EE inspections to the extent and frequency that was needed to make it a meaningful process. Inspectors also thought that there ought to be a separate EE Inspectorate. Inspectors felt that trade unions tended to confuse the terms “consensus and negotiations” and that if there was no consensus an employer had the right to continue the consultation process. They also argued that trade unions were not playing a meaningful and strong role in EE. They asserted that shop stewards need to be trained by unions and the DOL and that they should not be put on EE committees prior to proper training in EE.  

12.1  Procedural rather than substantive training of inspectors

Inspectors were interviewed in focus groups. They indicated that they used an inspection checklist and concentrated on procedural issues such as whether:  

1. there was consultation with union/s and or employees,
2. there was an EE plan and the manager had signed the EE plan
3. there was an EE forum

In addition, inspectors covered all the points under section 36 of the EEA whereby they were able to get an undertaking from employers regarding consultation with union/s and or employees. Regarding trade unions, typically the inspector would inquire from the unions about the nature of consultation by employers, the role played by the union, barriers they experienced and their involvement in drafting the EE plan, policies on EE of the employer. On the basis of the checklist, which included all inspection aspects including some issues dealing with EE, inspectors attempt to investigate 16 to 24 cases a month in the Western Cape Province . Inspectors felt that in most cases there was no proper consultation on EE by employers; even government agencies and some parastatals or State-Owned Enterprises (SOE) did not engage in consultation with unions. A commonly prevalent reason (excuse) given by employers for not consulting with unions/employees or complying with EEA were that company restructuring was taking place and the Chief Executive Officer (CEO) was unavailable during EE planning time.  

12.2  Enforcement

Advocacy versus prosecution appears to be a basic dilemma in principle held by inspectors. According to the inspectors, a directive was issued or believed to have been issued to them by their head office with an instruction “not to prosecute.” As a result, most inspectors in Gauteng were under the impression that they should not enforce aggressively. In addition there was a perception among some inspectors interviewed in both Johannesburg and Cape Town that the legislation was still “new” and that the focus should be on advocacy and that inspectors should not be policemen (in spite of the fact that the “three year” plans and reports had expired in June 2003 for big companies (150+ employees) and expired in October 2003 for smaller employers (those who opted to have three-year plans or less, instead of four/ five years).

Regarding guidelines for enforcement, inspectors felt that clear guidelines should be provided on what enforcement meant at practical level (that is, if an employer did not have an EE plan, they (inspectors) need to know what powers they are permitted to use; if targets were not met, what action must be taken by an inspector, and what kind of undertaking must be forthcoming from the employer). Also, the EEA, according to some inspectors, was unclear on targets. It was difficult for inspectors to challenge targets set by employers.

With respect to training, inspectors complained that the training was done by outside consultants (over two days) and it was not really practical or relevant in preparing inspectors for their practical inspection process. According to some, training focuses on procedural enforcement. Some inspectors, who were undergoing training, were not available for doing actual inspections, and had other work roles. 

The definition of an employer was not always sufficiently clear for inspectors. For example, some felt that the EEA was not clear if an employer was a holding company or subsidiary. In other words should the EE report submitted by a large banking group be for the group as a whole or each of its branches? They felt that branches often hid behind the targets and EE plans of a head office. For instance a retail company branch in Sandton with 60-70 employees might not be “designated” and hence did not have to comply. Some inspectors felt that this determination ought to be on the basis of turnover.    

There was a concern that too few inspectors had been appointed. In Gauteng there were 120 in all to cope with the too many companies in the entire province (Greater Johannesburg, Sandton and southern suburbs, East Rand and West Rand); and not all of them could carry out EE inspections. Even though there were plans to appoint extra inspectors, “we have tended to still sit with the same number of inspectors”. 

Some inspectors indicated that a separate EE inspectorate was envisaged to deal with EE issues. However, the DOL had been through an integration process and the inspectorate had merged. At present the idea of a separate EE inspectorate was being revived. 

Regarding the matters of seeking consensus or negotiated agreements or plans, some inspectors thought that trade unions tended to confuse the terms consensus and negotiation. According to them EEA stated clearly that even if there was no consensus, employers had the right to continue the consultation process with unions. Inspectors suggested that unions were not playing a role in EE; unions often confused the terms "grievances" and "job barriers" in the workplace.  According to the inspectors, shop stewards ought to train prior to serving on the EE committees. They felt the training ought to be provided by both the unions and the DOL. 

In addition to the need for trade unions to re-asses what role they are to play and influence they might have in EE planning, the key issue of EE enforcement is evidently limited by what seems to be a lack of role clarity of inspectors, capacity and resource problems, as well as a related educative contribution they could make to helping the parties themselves understand the actual legal requirements substantively, procedurally and interpretively in respect to key terms, processes and powers which they parties have or do not have in relation to EE consultation.  

13.  Summary of main issues in consultation - Lack of consultation and difficulties experienced

There is lack of consultation by employers with unions. Once the EE plan is sent to the DOL, many employers according to unions believe they do not need to do anything further. Shop stewards experience difficulty in getting management to talk about some of the issues relating to EE. Employers say that there is EE when there are faces of colour on the EE Committee. Employers have separated Skills Development and EE when in fact they should be integrated. 

Perhaps because the onus is legally on the employer to submit an EE plan to the DOL, the employer tends to takes charge of the entire process and treats the union as though its union is largely to be informed. As a result unions may refuse to countersign the EE plan. This has been somewhat successful since employers do not wish to have any hassle. Employers are reluctant to disclose wage differentials information. 

It is difficult for shop stewards to identify recruitment and selection practices and discriminatory practices with the company. Union officials felt that shop stewards must know what the EE law is and what their rights under the law are. Unions argue that they ought to challenge the employer when it appears the employer is not carrying out his obligations under the legislation. Shop stewards on the ground level do not have the necessary capacity. They are often unable to interact and engage meaningfully about polices within their companies; they cannot pinpoint the elements that need serious attention. If an employee raises a concern, the employer would know who did so and the next day that employee would be a victim.  

As indicated earlier, COSATU unions contend that employers make unilateral decisions as to who should be on an EE Committee. This undermines union influence. For instance, unions would impress upon employers to develop certain strategies; the employers would make the excuse that there was no budget, they could not invest in training due to restructuring and these people might be retrenched five months later.  

Unions are also concerned that the DOL is focusing more on advocacy than enforcement. Arguably COSATU has not utilized the services of the DOL fully. The federation could have more regular meetings with DOL officials. The unions and DOL can potentially play a key and perhaps joint role, but some unions are not confident that if they go to the DOL they will get what they want since there are often unforeseen delays. 

Both HOSPERSA and COSATU unions felt that government has resources and should have done more to educate workers. However, this might facilitate increased awareness, but may not necessarily empower shop stewards at ground level. Many unions express the view that no concerted measures have been put in place by the government to ensure implementation of the EEA. They see this as the State’s role, more so than theirs. Nonetheless union officials felt that COSATU was at the forefront of the development of EE and skills development legislation. However, once the legislation was enacted it seems that have taken a less active role at organisational levels and during collective bargaining negotiations, EE issues may be relegated to secondary issues once the bread-and-butter issues become apparent. EE issues come to the bargaining table but are given to a sub-committee and may not be properly concluded. One reason appears to be lack of capacity. 

14. Human resource development, consultation and capacity building 

There are not enough people, especially shop stewards, capacitated to monitor EE compliance. In most unions interviewed officials felt that their unions failed to prevent the separation between EE and skills development since these two areas should be integrated. In the case of Netcare, HOSPERSA has decided to pursue EE and skills development together. Besides there not being enough time to divorce these processes, skills development is considered necessary to achieve EE. For HOSPERSA a skills development strategy (of the union) looks at national qualifications. The entry levels are 1-6. There is an emphasis on lower level workers, but it does depend on the sector as well. There is a shortage in the health care sector and the union is trying to reach a medium between all levels, from the lowest to the highest.  The union is participating on the sectoral education and training authority (SETA). Besides the policy, the union says that it needs an actual agreement in respect of EE. A draft proposal has been prepared in the case of Netcare, but has not been signed by the employer. The proposal includes the employer’s national profile of its employees and the union’s response to this and its requests, e.g. that the 84% of employees who are black, be considered. Submissions were also made in response to the employer recruiting 90% white people. The employer claims that they’ve tried certain people at senior management level and executive management level and that these appointments were not successful. According to HOSPERSA its consultations with Netcare reflect one of the more successful attempts in this regard as leverage by the union, but it is not however happening in other sectors. There is therefore a need for trade union engagement with an employer at an early stage when it is developing an EE plan; as well as in its implementation. An employer should also seek the union’s opinions, so that the process is an inclusive one and the plan is developed jointly.  

SAMWU: Case experiences of consultation and internal capacity building 

The Cape Town branch of SAMWU has 27 000 employees of which, only about 6 000 are women. In Cape Town black membership (including Coloureds, Asians, and Africans) is a majority. However, the largest number of managerial positions in the City Council is taken up by white people, especially white males. SAMWU believes that it can help through implementing employment equity. However, due to historical inequity there have been stumbling blocks. What has helped SAMWU has been the development of shop stewards. SAMWU has built up its shop steward complement and leadership. There used to be seven municipalities in the Metropolitan area, each having its own employment equity officer. They did not achieve much progress because there was not much support within the municipalities and resources were not given to disadvantaged people. There is now only one municipality which has been negotiating EE since 1996/97. Its achievements have been mixed. The current EE officer of Cape Town was appointed in December 2002. 

There tend to be stumbling blocks concerning the application of EE since the Employment Equity Act is not always in favour of trade unions in their view. SAMWU is a member of COSATU. There is a centralised bargaining council in local government. The employer party to this bargaining council is the South African Local Government Association (SALGA). It is made up of councilors. There are divisions in the nine provinces and SAMWU is bargaining in the Western Cape Division of SALGA. Under the auspices of that bargaining council, SAMWU has established a working group which consists of 50% of the employer party and 50% of trade unions/employees – SAMWU and IMATU (Independent Municipal Association of Trade Unions) being the two unions with the majority representation. Five representatives are from the employer side, and five from the trade unions. SAMWU has three representatives. The working group has no decision-making powers. Any agreement in the working group must be ratified by the bargaining council and any dispute must be referred back to the bargaining council. It is currently negotiating on EE. The working group has existed since 2003. Each working group elects a chairperson. This is on a rotation basis. One year the employer chairs and the next year, the trade unions. SAMWU has made proposals and tabled an EE document. The major points of this document are from the old affirmative action policy document and it includes procedures on how to implement affirmative action and how to achieve the targets. It sets out what the targets are for the next five years. Council has also tabled a policy document. This proposal is used as the basis for these negotiations. SAMWU has ensured that its document will be an addendum to the policy document. 

There are some barriers however. These include a lack of full communication on the employer side in terms of the people responsible for actual implementation. There has been resistance from officials in getting a skills audit done. The skills audit process was different to what was agreed upon in the bargaining council. SAMWU objected because the Skills Development Act is involved in addition to EE and the two need to be considered in conjunction. The employer submitted EE reports without fully consulting the union. The union feeling was that the plan was drawn up to comply with the (legal) provisions, but not really with a view to full implementation. The employer does submit the EE plan to the committee but it is completed for the Department of Labour compliance purposes. 

When the DA (Democratic Alliance) came into power in 2000 they had their own concept of what EE is. The employers had their own view and the officials (who are supposed to be part of that team) also had their own view. This held up the process. In 2002 the employer party changed because the ANC (African National Congress) and NNP (New National Party) formed a coalition and there were new people to negotiate with. According to SAMWU there has been a struggle with the employer who wanted to discuss placements for leadership under the Act outside the bargaining council. The employer eventually agreed that it could be discussed in the bargaining council. It has been agreed that the employer party will make changes in its representatives. They will also meet outside of the formal meeting in order to speed up the process of reaching consensus in the working group so that it can move towards implementation. Some appointments made are regarded as EE or affirmative action ones and according to the union there is not enough support for and assistance to these people. 

In applying EE, the employer advertises the post and invites previously disadvantaged people to apply. However, the union argues that no mechanisms were put in place to determine whether a person is competent or has the capacity to do his/her job. For example, a black man was appointed to be the EE officer in the previous Tygerberg municipality on a contract basis. The Labour Relations Department ended the contract saying that he was not competent. The union disputed this and the decision was made to re-appoint this man. But there were no procedures or mechanisms whereby the employer could say that this man was incompetent. SAMWU supports EE and tries to ensure that EE candidates are placed at the managerial level so that they can advance the agenda of the union. SAMWU and other unions interviewed argue that employers are looking at EE and skills development independently when it is so vital for EE to be supported by comprehensive skills development and development plans. In most cases union representatives are more informed in this regard than the employer is. However, SAMU argues too that it is a battle to get information, because the union does not have the capacity to do so and this is hindering the progress in making make meaningful changes. 

SAMWU has (nationally) approached the DOL and the Department of Local Government in respect of problems with implementation. As with COSATU the union and employer have different understandings of "consultation". The employer thinks that it is enough to inform while the union does not think that this is sufficient. Capacity and resources of the unions are limited and stretched. For example unions like the Southern African Clothing and Textile Workers' Union, SACTWU, acknowledging its importance might struggle to sufficiently prioritize EE when its main concern is employment sustainability in a sector loosing thousands of jobs.SAMWU acknowledges that it needs to raise awareness concerning EE beyond the limited understanding of concentrating on appointments only. SAMWU relies only on membership fee income. It therefore needs other financial resources and these resources must be distributed equally to enable priorities such as EE planning and EE consultation to be addressed.  

15.  Conclusions

Although progress has been made in enhancing racial and gender representation in the South African workplace, and enhancing a culture of mutual tolerance and better race relations, this is an incremental process that has to be supported by coherent human resources development priorities through consultation and cooperation of unions and changes in organisational culture. Although not investigated in this study, there is some evidence that South Africa’s EE model has seen a diffusion of certain of its tenets and provisions to changing legislation to some African countries, with some integration in Namibia for example. South Africa’s EE model has not been premised on other African models though, but rather on borrowing and adapting principles and provisions from jurisdictions such as Canada and Australia. 

Generally, however, the level of trade union participation in EE planning appears to be at the "information giving" or that of "basic consultation" level, whereby the union may be asked for its inputs and the employer then decides. There is little evidence to suggest that unions elsewhere in the region are likely to achieve significant regional integration of employment equity legislation in general and, in particular, to gains in consultative rights in the near future. In Anstey (1997) and Salamon’s (1992) conception of participation, there is a low level of union influence and use of power in EE planning. Arguably, cultural factors including patriarchal traditions, continuing tribally based nepotism in some African countries and traditional adversarial collective bargaining based on positional negotiations, may limit de facto engagement and joint decision making on EE or localisation matters. There is still little evidence of direct engagement with trade unions with a view to seeking consensus (du Toit et al 2003: 599-601). The law in South Africa does not require co-determination or joint decision making and does permit both consultation and negotiation with trade unions on EE. Hence, the consultative process is at best rudimentary. Legislative measures in South Africa include a national integrated human resources development strategy, legislated de-racialisation of business ownership in the private sector and national targets that include land ownership and equity participation in some economic sectors. The latter has occurred in countries such as in Botswana, Kenya and Zambia. With possible progress over the next few years of the New Partnership for Africa’s Development (NEPAD) a gradual convergence and integration of cross-country policy and legislative frameworks in the employment relations arena might be possible. 

At the organisational level, linking into employment equity, targets are set for senior and executive management in private-sector companies rather than supporting the setting of targets by company management themselves. The legislation and a flurry of industry and employer announcements following the address of South African President Thabo Mbeki to the Parliament in 2003 offer a significant policy basis for improving access to capital, skills and economic empowerment for the majority of South Africans. These overall measures, along with the progress in implementing employment equity and attendant workplace practices, it is suggested, will greatly improve the chances of black majority to have their just share in the South African economy. 

In this regard, employment equity must be viewed from both macro- and micro-perspectives. Changes have to occured at macro-policy levels. Equally, business leaders are required to comply, at a company level, with the provisions of both BEE and EE legislation, especially regarding consultation with unions and employees. However, it is becoming clear that legislative compliance alone cannot create necessary mindset changes, organisational commitment and cultural transformation through engaging proactively with employees and their trade unions in what is a deep and profound change management process. On a macro-level, employment equity needs to be supported by prioritizing human resources development and education in skills and competencies needed in a society in transition. This reality has been recognized by the government, and skills development legislation and Black Economic Empowerment legislation and industry-wide BEE charters with regard to enhancing economic growth through state-driven measures to ensure black participation in the mainstream economy are quickly emerging. 

Whilst there are differences in trade unions’ approaches to EE, and interpretive variations in respect of designated group prioritisation, there is consensus on two key areas. First, that unions are not properly consulted by employers on EE planning and associated human resource practices important for implementation, and second, that employers often appear to separate the areas of EE and human resource development, failing to see their key interrelationship for human capital development and planning. 

It is also concluded that trade unions themselves do not place EE as high on their employment relations agenda as traditional collective bargaining matters and disputing unfair dismissal cases. This may in part be explained by a tendency to rely on government to address the need for discriminatory redress, including expecting a more aggressive role of DOL inspectors, and on employers on whom there is a legislative onus to have EE plans with targets and timetables and to submit these to the DOL. These interpretations are supported by the paucity of union disputes on unfair discrimination which have reached the labour court. There is a need for trade unions to re-prioritise their engagement in the EE process, notwithstanding their concern that employers are tardy in this regard. As mentioned by several union respondents in this study, the extension of the employment relations agenda to focus beyond remuneration related collective bargaining items and conditions of employment to EE and human resource development could put trade unions on a more strategic path in their relationship with employers.  

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About the authors

Professor Harish C. Jain is (Emeritus) Professor at the Human Resources faculty at the DeGroote School of Business, Hamilton, ON, Canada. Professor Jain specializes in diversity management and employment equity/affirmative action; human rights in employment; comparative human resource and industrial relations policies of multinationals; and labour relations policy. Professor Jain is recipient of the Order of Canada (August, 2006); he is Commissioner of the Canadian Human Rights Commission (April 2005); he was a member of the Canadian Human Rights Act Review Panel appointed by the Canadian Justice Minister in April 1999. He was a member of the Canadian Human Rights Tribunal 1986-1992 and 1996-1998.  He is lead author of several books and monographs, including: Employment Equity and Affirmative Action: An International Comparison, 2003 (M.E. Sharpe, New York); Employment Equity/Affirmative Action Codes of Best Practices in the USA, Canada and Britain and other Selected Countries, 1998 (South African Dept. of Labor). He is on the editorial board of the International Journal of Human Resource Management, International Journal of Manpower and contributing editor of Human Resources Management in Canada. He has published more than 60 articles in academic and professional journals. He assisted in the development of employment equity legislation in South Africa and has been a policy advisor and Consultant to the South African Department of Labour 1996-1998; he held a Donald Gordon Chair at the University of Cape Town (UCT), Graduate School of Business (GSB) 2002 to 2006; he was a Consultant to the Organization for Economic Cooperation and Development (OECD) in Paris, France (1996); Canadian federal and provincial government Departments and agencies. He has been invited to speak by business, human resources and industrial relations organizations in many countries around the world. He can be contacted at jainhar@mcmaster.ca and 905.525.9140.  

Loyiso Mbabane serves as the Director of the School of Business and Enterprise at the University of Fort Hare.  Previously he was a senior lecturer in Human Resource Management at the Graduate School of Business (University of Cape Town) where he also acted as the convenor and director of the BEE Executive Course. A graduate of Wits University, he was the first black person to graduate with an MA in Industrial Psychology from that institution in 1995. He also completed a Master of Management Degree at Wits in 1999 (specialising in Labour Market Economics; Macro-Economic Policy and Research Management). He is currently registered for a PhD in “Human Capital Development and Black Economic Empowerment Strategy” at the UCT Graduate School of Business. A doyen of empowerment and transformation; Mbabane served under Tito Mboweni (then Minister of Labour) as national director of Equal Opportunities/Employment Equity at the Department of Labour in Pretoria in 1997 and 1998 where he was responsible for the development of the Employment Equity Act. From there he became a founder-member and executive director of the Black Economic Empowerment Commission (BEE COM), an offshoot of the Black Business Council that was chaired by Cyril Ramaphosa. He started his own company in Johannesburg, the Economic Justice Agency which offers professional services to business; government and other organisations on BEE Strategy and policy; with the emphasis on a Human Capital Development-based long-term approach to BBBEE.  The EJA also conducts research and policy review in the areas of Human Capital Development; Entrepreneurship Development; Transformational Leadership and Organisational Empowerment.

Frank M Horwitz is Professor of Business Administration and Director of the Graduate School of Business (GSB) University of Cape Town. He specialises in human resources management, organisation change and industrial relations. The areas of his expertise include high-performance work practices; Industrial Relations; employment discrimination and diversity; mergers and acquisitions; strategic human resource management; workplace flexibility and organisational restructuring. He has been visiting Professor at the Rotterdam School of Management (RSM) Erasmus University in Holland, Nanyang Business School in Singapore (2001-2002), the Faculty of Management, at the University of Calgary, Canada, and research associate of the Industrial Relations Centre, Griffith University, Brisbane, Australia. He is a former Faculty member of Wits Business School, University of the Witwatersrand. He has some ten years executive experience in these fields with ICI in England and AECI. He has acted as a consultant in organisational change and human capital strategies for companies in Canada, Namibia and South Africa. He has consulted to the governments of Namibia,  Singapore and South Africa. Frank Horwitz was in 2000, Chair of the Commission investigating the effects of sub-contracting on the collective bargaining system in the building industry. He was on the national Council of the Industrial Relations Association (IRASA). He was a (part-time) commissioner on the Commission for Conciliation, Mediation and Arbitration (CCMA), and on Clothing Industry Bargaining Council Dispute Resolution Panel. He is active in community service organisations. Among these, he has served on the executive committee of the South African Institute of Race Relations. He is a past executive committee member and national treasurer of the South African Association for Conflict Intervention (SAACI). He is a regular contributor on radio including Cape Talk radio and SAFM has written for business newspapers such as Business Day and the Financial Times and has appeared on television. He can be contacted at fhorwitz@gsb.uct.ac.za and 021 406 1418 / 9.

Short summary
The nature and degree of trade union participation in EE policy and practice in South Africa, has variably been successful and this white paper highlights various aspects for improvement. 

Keywords and relevant phrases
Affirmative action, affirmative action measures, Africans, bargaining council, blacks, collective bargaining, Coloureds, committees, communication, competitiveness, consensus, consultants, consultation, cultural enrolment, decision making, demographic representation, designated groups, discrimination, dispute procedure, downsizing, education, elimination of unfair discrimination, employee participation, employers' organisation, employment equity, employment equity implementation, employment equity planning, employment practices, flexibility, gender, globalisation, historically disadvantaged persons, HRD, HRM, HR policies, HR practices, human resource development, human resource management, Indians, information, job losses, joint decision making, learning, labour legislation, lockout, organisational objectives, organisational restructuring, organisational transformation, ownership, parastatals, people with disabilities, performance, power sharing, promotion of equal opportunity, qualifications, Qualitative Assessment Reports, reasonable accommodation, recruitment, regulation, retrenchment negotiations, rights, skills, skills audit, skills development, strategy, strike action, suitably qualified, talent, tension, trade union, unfair discrimination, violation, women, workplace conflict, workplace forums, workplace discrimination, workplace diversity.

Trade unions, governmental institutions and legislation referred to in this paper

BEE - Black Economic Empowerment
Bill of Rights
Canadian Charter of Rights and Freedoms
Canadian Employment Equity Act and the 
CCMA - Commission for Conciliation, Mediation and Arbitration
CEE - Commission of Employment Equity
Constitution Act of 1996
COSATU - Congress of South African Trade Unions
DA - Democratic Alliance
DOL - Department of Labour
EEA - Employment Equity Act of 1998
FEDUSA - Federation of Unions of South Africa 
HOSPERSA - Hospital Personnel Trade Union of South Africa
IMATU - Independent Municipal Association of Trade Unions
LRA - Labour Relations Act of 1995
NEPAD - New Partnership for Africa’s Development 
NNP - New National Party
PSA - Public Servants Association of South Africa
Promotion of Equality and Prevention of Unfair Discrimination Act of 2000
SACTWU - Southern African Clothing and Textile Workers' Union
SALGA - South African Local Government Association
SAMWU - South African Municipal Workers' Union 
Skills Development Act of 1998
SOE - State-Owned Enterprises 

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