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Comments on BBBEE revised Codes October 2012

We wish to bring to the attention of this committee, our observations and comments pertaining Code 300 and 200, as Gazetted in 2007 and now recently revised in October 2012.
These Codes are the "Measurement of the Employment Equity element of Broad based Black Economic Empowerment". (BBBEE)

Brief

Our issue lies not with any proposed amendments to the Codes but to the Employment Equity related codes in general, and to how they relate to and discriminate against persons with Disabilities as a whole and White persons with Disabilities in particular. This issue stems from the repeated use of the term, "Employment Equity", in the language of the Codes.. As can be seen, from Statement 300

"Statement 300 - The General Principles for Measuring Employment Equity".

This statement clearly suggests that the concept of Employment Equity will apply henceforth. However, in reality, this is not the case and it is our assertion that in fact since Disability is Equitably included in the original Employment Equity Act no 55 1998; as a designated group regardless of race, that it is incorrect and misleading to refer to Employment Equity in the context of BBBEE, where only black people with Disabilities are referred to.

Secondly, Code 300 clearly removes any focus on levels of employment of (black) persons with Disabilities. The following note taken from code 300 confirms this.

"Please note that this exclusion of black people with disabilities is a deliberate deviation from the current Interpretive Guide to the Codes of Good Practice 2007 The Department of Trade and Industry" Regardless of its deliberateness, to ignore levels of employment of persons with Disabilities , totally deviates from the principles of the EEA.

Thirdly, the 2% scorecard target for persons with Disabilities, as per Code 200 refers; "2.5 Disabled Employees 2.5.1 Black disabled employees as a percentage of all employees, counts 2 points and the target percentage is 2% of your workforce". This targeting serves only to undermine pre existing efforts and mechanisms as provided by the EEA.

The Issue

We will deal with each item in greater perspective below.

  1. The insistence that BBBEE and Code 300 requirements are somehow compatible or in concert with Employment Equity activity is simply incorrect and misleading and highly prejudicial to previous and current Employment Equity Act obligations. Some background is required here. The 1990's were pivotal in Disability rights History. Many countries began to pay overarching legislative attention to Disability rights. These rights issues, importantly, concerned all aspects of societal implications that affected the lives of persons with Disabilities. This of course is not confined to the individuals disability alone but highlights and attempts to address the societal barriers faced by people with Disabilities. Issues highlighted Included; welfare, housing, transport, Health, education, employment etc. At the same time, the U nited Nations, with significant contribution from South Africa, was also well on its way to establish what would become the UN Convention on the Rights and Dignity of Persons with Disabilities in 2007. South Africa too, took part in this global consciousness and made the precedent setting move of incorporating Disability into our first Democratic Constitution 1996. In 1998 the Employment Equity Act no 55 was promulgated, and notably incorporated Disability as a designated group, along with Black people and Women. Also importantly, no disaggregation was made in terms of whether the person with the Disability was white or Black. The reason for this is simple, The Employment Equity Act, recognized that barriers to Disability inclusion were not confined to apartheid alone but to historically entrenched societal barriers common to most countries in the world. This is amply demonstrated by the fact that even today; white or black, students with physical and sensory Disabilities are excluded from almost all mainstream education facilities. White or black, people with (particularly) physical Disabilities are still unable to access the overwhelming majority of public transport and most other facilities and amenities in the public and private sectors. Finally, white or black, persons with Disabilities have the highest rate of under or unemployment in the country. To further and deliberately drive a racial wedge into an already weak and compromised sector, but which has Constitutional and global support and attention, makes no political or economics sense.

  2. The deliberate exclusion of the measurement and reporting of levels of employment of (Black) people with Disabilities. Once again, this is in total opposition to principles and values of the EEA, and amounts to nothing more than an invitation to simply count heads and enter into the worst kind of numbers game playing. One of the most crucial elements of the Employment Equity Act, is that it was identified at the beginning, that an affirmative action mechanism such as those employed by the EEA should never become a simple numbers game, with merely counting the affirmative action candidates. Therefore careful attention was and is paid to ensuring that levels of employment are taken into account in all EEA reporting and do not exclude Disability from these rules. The seriousness of this oversight needs to be explained. Historically, people with Disabilities have been seen as not being particularly productive in the world of work and for the most part have been excluded resulting in very limited employment opportunity. For generations, this prevailing mindset has set the stage for widespread generalization and stereotyping and the net result, with few exceptions is that where the few employment opportunities exist they are invariably at a lower level regardless often of the training or skill of the individual with the Disability. By removing the directive to pay attention to levels of employment for Disability, companies, when populating their BBBEE scorecards, have no incentive to pay attention to or put effort into altering these stereotypes. Once again, this results in (black) people with Disabilities being relegated to the lowest levels of employment, with little hope of change as long as there is a complex compliance mechanism such as these codes, preventing it. .

  3. The stipulation, in Code 200, that 2% of the workforce be made up of black people with Disabilities. As has been stated above, this requirement works against original EEA compliance obligations in a number of ways. Firstly, the EEA does not demand a specific target to be reached in terms of the employment of persons with Disabilities, and if it did, it would have had to include white people within that target as they legitimately fell within the scope of the Act. Secondly, as has been noted in point 2 above, with little direction or incentive to raise the levels of employment for (black) persons with Disabilities, the additional pressure of targeting will simply perpetuate the stereotypic and menial disability employment trends, specifically for black people with Disabilities.

  4. Finally, Government, in 2000, notwithstanding that there were no formal targets or quotas, put out a national goal that by 2005, 2% of Governments workforce would be made up of persons with Disabilities. It is important to note that white people were included in this goal. Sadly by 2006 and indeed to the present, less than 1% of Governments workforce was made up of people with Disabilities, drawn from all racial sectors. What this illustrates is that with significantly compromised historically disadvantaged sectors such as Disability, quotas and targets alone cannot achieve automatic and equitable inclusion into the world of work where generations of ignorance, prejudice and fear on the part of the employer, have retarded the ability to equitably enjoy the skill, training and right to work of persons with Disabilities. Therefore simply insisting on over ambitious targeting, with no focus on levels, cannot succeed but instead will result in an increasingly frustrated and discriminated sector.

Conclusion and recommendations

An important question needs to be asked. Can Companies comply with both EEA and BBBEE? The answer theoretically must be yes of course because The Department of Labour has not slackened its pressure on companies to submit their EE reports. At the same time all companies and organizations need to in some way comply with and work toward populating their BBBEE scorecards if they wish to be competitive. However, the reality is that there is far greater incentive to oblige and comply with BBBEE criteria than EEA obligations. This is demonstrated by the fact that the Department of Labour is becoming increasingly threatening about non reporting.
Unfortunately, the fact is that more energy and attention is paid to the former. The problem is that given the frequent referencing of Employment Equity within BBBEE language such as can be seen with Code 300 and 200, companies are increasingly confused as to which to comply with, or there is an assumption made that by complying with BBBEE, will, given that its Codes clearly quote, "employment Equity" that it must therefore be compliant with the EEA and its reporting mechanisms.
The hard fact is that they do not compare or work in concert. By fixating on BBBEE requirements in populating their scorecards, companies are forced to disregard good EEA practice of including both White people with Disabilities as well as to consider their levels, while they scramble to somehow fill an impossible 2% target.
Conversely, when a white person with a disability applies for a job, legitimately expecting good Employment Equity practice, as is her right under the EEA, she is, now, almost always met with the same negative response. As can be seen from the quoted statement from a senior HR manager in a large organisation. "Unfortunately we have to target African candidates first failing which we can look at coloured and Indian. It's just the way our transformation scorecard works". What this demonstrates, by the use of the term "scorecard" is that BBBEE criteria are driving this organizations transformation, regardless of the legitimate claims of the Employment Equity Act and those supposedly under its support and protection.

It is our assertion therefore , based on the above that all so called "employment Equity " referencing in BBBEE legislation, codes and guidelines have not been properly considered and thought through, with respect to Disability.
The clashes and contradictions between BBBEE's so called employment Equity mechanisms and pre existing non discrimination legislation is undeniable.
The overt and punitive discrimination against persons with Disabilities resulting from this must be viewed in the context of the established anti discrimination legislative framework, all of which acknowledge Disability equitably, including: The South African Constitution, The Employment Equity Act, The Promotion of Equality and the prevention of discrimination Act, The skills development Act amongst others. Finally it must not be forgotten that South Africa was a founder signatory of the United Nations Convention of the Rights and Dignity of persons with Disabilities (2007) . This globally respected convention must be our leading guide toward the rapidly growing universal sentiments toward fair and equal Disability inclusion into Mainstream society.
The continued unchecked violation of these national and Global anti discrimination mechanisms mentioned here by BBBEE facilities will continue to cause disempowerment and distrust amongst an increasingly frustrated Disability sector, while also resulting in embarrassing international scrutiny, with our failure to adhere to the most basic principles of non discrimination regarding Disability.

It is therefore our recommendation that all references to Employment Equity be either removed from BBBEE language until such time that it is properly linked with and in concert with genuine Employment Equity Act sentiments and requirements so as not to misguide and compromise companies efforts to comply with them.
In addition, we recommend the immediate removal of all racial discrimination criteria pertaining Disability within the BBBEE legislation.
Finally, we recommend, the the insertion of similar levels of employment criteria thus far excluded for persons with Disabilities.

Jeremy Opperman
Disability Analyst
October 2012