Challenges in applying Affirmative Action in the Public Service

1. Challenges in applying Affirmative Action in the Public Service • MAJOR CHALLENGES: • “You do not wipe away the scars of centuries by saying: ‘now, you are free to go where you want, do as you desire, and choose the leaders you please. ‘You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, ‘you are free to compete with all the others,’ and still justly believe you have been completely fair … This is the next and more profound stage of the battle for civil rights. We seek not just freedom but opportunity- not just legal equity but human ability- not just equality as a right and a theory, but equality as a fact and as a result.” (President Johnson frames the concept underlying affirmative action, asserting that civil rights laws alone are not enough to remedy discrimination, June 4 1965)

2. Challenges in applying Affirmative Action in the Public Service • “It would be wise of us, to take stock of what we have and then chart a way forward on how to utilize what we have to entrench democracy and meet basic needs of the poorest of the poor. The Apartheid State poured resources into its racist projects of upliftment of, at best, 15% of our population. The democratic state has an obligation to spread virtually the same volume of resources among 100% of our population” (Mbeki, 1998:148).

3. Challenges in applying Affirmative Action in the Public Service • “Let us mention another statistic which bears directly on the pressing issue of safety and security- 86% of all permanent police stations are located in the white areas of our country. To achieve a similar density in the present African, Coloured and Indian areas, together with human material resources attached to each station, would once again require that each of us in our sectors, should think fresh, bold and original ways, take flights from the concept of ‘business as usual’ and find ways in which we can contribute to the elimination of the national emergency imposed on the country by the legacy of apartheid” (Mbeki, 1998: 148).

4. Definitions • Affirmative Action in the South African context can be defined as a distinct process designed to halt the continuation of discriminatory policies and practices and to overturn imbalances and legacies created by such. • “Affirmative Action in the employment environment is a specific programme designed to halt the continuation of discriminatory policies and practices in the workplace and to overturn the imbalances that they have created”(White Paper on Affirmative Action). • “Affirmative action refers to concrete steps that are taken not only to eliminate discrimination- whether in employment, education, or contracting-but also to attempt to redress the effects of past discrimination. In other words, persons with equal abilities should have equal opportunities” (Http://en.wikipedia.org/wiki/Affirmative_action). • In South Africa, the focus has been primarily race-based and, to a lesser extent, gender-based discrimination.

5. Employment Equity Act:(S.A. Labour Department) • The EE Act applies to all employers and workers and protects workers and job seekers from unfair discrimination and also provides a framework for implementing affirmative action: • Basic guides issued in terms of the EE Act: • Basic Guide to (1) employment equity reports (2) unfair discrimination (3) employment equity managers (4) employment equity studies (5) employment equity pay gaps (6) informing workers about employment equity (7) medical and psychometric testing (8) employment equity consultations (9) employment equity plans • (See www.labour.gov.za/basic_guides/bguide_display.jsp?id=5854)

6. The basic guide to employment Equity plans state: Employers must have employment equity plans. The plans must show the objectives, affirmative action measures, time tables, duration, procedures and responsibilities that employers will implement. The provisions for affirmative action apply to: • municipalities • organs of state • any employer who volunteer to comply • employers with 50 or more workers

7. Why affirmative action? • Chapter 10 of the South African Constitution spells out the basic principles and values governing the public service. Amongst others these values stipulate that: • “Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness and the need to redress the imbalances of the past to achieve broad representation. • In terms of Section II of the Public Service Act of 1994 (reflecting the law as at 1st July 1999). • The filling of posts should be based on Section II of the Public Service Act of 1994 which reads inter Alia as follows. • The evaluation of persons shall be based on training, skills, competence, knowledge and the needs to redress the imbalance of the past to achieve a public service broadly representative of the South African people including representation according to race, gender and disability. • FULL STOP

8. The objectives of the South African Public Service affirmative action are: • Enhance the capacities of the historically disadvantage through the development and introduction of practical measures that support their advancement within the Public Service. • Inculcate in the Public Service a culture which values diversity and support the affirmative of those who have previously been unfairly disadvantaged. • Speed up the achievement and progressive improvement of the numeric targets set out in the White Paper on the Transformation of the Public Service.

9. The core principles for affirmative action are: Integration with human resource management and development Affirmative action programmes must be integrated with other human resource management and development practices, especially the management of diversity. Productivity and improved service delivery Affirmative action programmes must promote the development of more innovative work practices which maximize productivity and increase customer-responsiveness. Cost effectiveness Affirmative action programmes must focus on steps which optimize the Public Service’s human and financial resources. Communication The purpose of affirmative action policies and programmes must be fully communicated to all public servants. Participation Affirmative action programmes must be developed with the active participation of employees at all levels, and with representatives of organized labour.

10. Transparency Affirmative action programmes and practices must be open to scrutiny within and outside the Public Service within reasonable limits. Accountability Accountability for the delivery of affirmative action must be vested at the highest level of the organization, with all line managers being vested with the responsibility of driving the process. Reasonable accommodation Affirmative action programmes must strive to eradicate barriers to employment and advancement in the physical and organisational environment and provide support of all members of the target group. Relative disadvantage Affirmative action must take into account the relative disadvantaged status of groups, their needs within the target group and the needs of the organization.

11. Implementation WorldwideAccording to Wikipedia AA is practiced worldwide. They give several examples amongst others: • Belgium: The Flemish government proposed in January 2006 a measure that will make some job opportunities available exclusively to immigrants, disabled and elderly people for the first three weeks. • Germany: Article 3 of the German constitution provides for equal rights of all people regardless of sex, race or social background. In recent years there has been a long public debate about whether to issue programs that would grant women a privileged access to jobs in order to fight discrimination. There were programs stating that if men and women had equal qualifications, women had to be preferred for a job. The Government agreed on the details of an anti-discrimination law (Antidiskriminierungsgesetz; ADG) in May 2006, that aims at improving the protection of minorities. The draft follows EU- standards and passed the German Parliament in August 2006.

12. Greece: Has quotas setting a lower limit for women participating in election lists of political parties for most of the election processes. • Indonesia: In Indonesia, affirmative action programs give natives of Malay origin (Pribumi) preference over the Indonesian Chinese in the country. • United States: In the United States, affirmative action occurs in school admissions, job hiring, and government and corporate contracts. Its intended beneficiaries are ethnic minorities, women, people with disabilities and veterans. Affirmative action has been the subject of numerous court cases, and has been contested on constitutional grounds. A recent Supreme Court ruling in Michigan against some forms of affirmative action has required some colleges to set new admissions criteria.

13. Driving high performance through people- some thoughts on effective leadership in a rapidly changing South Africa • “Everything rises and falls on leadership. It controls and shapes destinies; it can build or it can destroy. It sparks the energy and enthusiasm for change. It drives passion, it lights inner fires, it ignites emotions. It brings about a common purpose, shared values, alignment and synergy. Leadership is without doubt the most critical success factor which will determine our future…” • “Lastly, they understand that their leadership has to deliver the right results. Good leaders get the job done. Without good results, the leader’s credibility and influence cannot be sustained. It is the acid test; the moment of truth.” (Anton Rupert at the IPM conference Sun City 2006)

14. ROLES AND RESPONSIBILITIES- MANAGING AN AFFIRMATIVE ACTION PROGRAMME • Executing Authorities It is envisaged by White Paper on AA that responsibility for ensuring that the respective affirmative action policies of national departments and provincial administrations are implemented should rest ultimately with executing authorities. • Directors-General and Heads of Department Objectives related to affirmative action should be included in the performance contracts of Director-General and to PA of DG’s. • Managers Managers will be primarily responsible for putting into effect the human resource and other practices through which the affirmative action programme will be implemented. • Heads of Human Resources Responsible for integration of affirmative action principles and objectives into human resource management practices. • Heads of Training or Human Resource Development The heads of training or human resource development have a key role to play in the overall success of affirmative action programmes through their capacity enhancement responsibilities. • Heads of Finance and Provisioning Ensure that funds are identified and clearly earmarked for affirmative action projects. • Manager of the Affirmative Action Programme The tasks of this individual will be to develop the programme, monitor it and play a supporting, facilitating and coordinating role across the entire organization.

15. Targets set in 1998

16. As at 2009 the position was as follows:

17. Persons with disabilities • Disabled persons suffer greatest exclusion from Public Service employment in which they have a minuscule representation and are also greatly under-serviced. • ILO Convention 159; defines a person with a ‘disability’ as any individual whose “prospects of securing and retaining suitable employment are substantially reduced as a result of physical or mental impairment”. • The Australian Government’s Management advisory Committee in their publication “Employment of people with disability in the APS” equally makes reference to compliance with the APS values in hiring “people with disability and I quote.

18. The relevant values in this regard are: • There is one interesting section in the APSC publication entitled employment of people with intellectual disability. Apparently under the Public Service Commission directives issued in 1999 there are measures which “allow people with intellectual disability to be appointed to the APS without having to compete against applicants, who do not have an intellectual disability”. (These it is alleged are seldom used) In 2005 the South African Public Service Commission conducted an audit of Affirmative Action in the Public Service.

19. What were the South African PSC findings on AA? • There were uneven periods of conducting management reviews. • The integration of AA accountability in performance management system was found to be uneven and is not reflected in the performance agreements of senior managers. • The process followed in developing and implementing the AA programme is inconsistent and does not necessarily align to the guidelines provided in the White Paper on AA. • There is no consensus regarding the responsibility for the implementation of AA. • Most departments have not identified barriers to fulfilling AA requirements. • More than 40% of departments did not take action to overcome barriers by developing recruitment strategies or forgiving links with organizations for designated groups (people living with disabilities) • There is a discrepancy between the development of AA plans (and setting of targets) and implementation. • More than a third of the departments tend to adopt generic empowerment practices. It is assumed that employees from designated groups will benefit from these generic approaches. • More than half of the provinces (and they are the largest employer in terms of numbers) have no mentoring and coaching interventions. • No or inadequate records of promotions and succession are kept. • There are no specific leadership and management development interventions for designated employees.

20. So what are major challenges in applying AA in the Public Services? • Simple: Senior managers should simply implement the provisions of the White Paper and the EE Act. • In November 2006 the South African Public Service Commission released a report on Gender Mainstreaming initiatives in the Public Service: • “Gender stereotyping has resulted in the majority of women being employed in areas such as education and health in which they perform relatively lower level work, with very few in decision-making positions. As a result, the occupational structure in the Public Service has become skewed on the basis of gender…. And these occupations are positioned at generally low levels within the hierarchy of occupations and are also the more lower paid of occupations. • Even where women are well qualified and experienced, the predominance of males at management level has resulted in a culture in which male behaviour patterns are perceived to be the norm, and in which women often find it difficult to be accepted as equals by their male colleagues. These problems are compounded by a working child-rearing, which are still primarily a female concern”.

21. Percentage of women in salary levels 13-16 in KwaZulu-Natal Departments

22. PSC’s GENDER MAINTREAMING RERPORTKEY FINDINGS • Knowledge and understanding of gender mainstreaming • There is a lack of knowledge about gender mainstreaming in most departments and across all levels. • Senior management does not know how to move from vision (policy) to strategy and action. • The main reason for this is because of a lack of knowledge and understanding of what it is that needs to be changed, why it needs to be changed, how to go about the change process, and what results should be produced.

23. Provincial overview of Women in Senior Positions (levels13-16) in the Public Service • The average percentage of women in senior positions in provincial departments is 29, 8% which is only 0, 2% below the target that was set. • In terms of the provincial analysis, North West (33, 4%) and Limpopo (32, 5%) have the most women in senior positions followed by Gauteng and Mpumalanga reflecting 30, 6% respectively. • The Western Cape has the lowest percentage of female managers (23%). • Across all the provinces there is a 10.4% difference between the province with the highest number of women in senior positions (North West at 33.4%) and the province with the lowest number of women in senior positions (Western Cape at 23%)

24. National Departmental Review of Women in Senior Positions (levels 13-16) in the Public Service: • The average percentage of women in senior positions in national departments is 31, 2% which exceeds the target of 30%. A similar trend in national departments is observed to that of provincial departments, where the highest percentage of women in senior positions is in departments such as Health and Social Development.

25. Women with Disabilities in Senior Positions (levels 13-16) in the Public Service: • More disabled men then women are employed at senior management level in the Public Service. In seven Provinces no female managers with disabilities are employed.

26. Empowerment of Women: • In general the empowerment of women is not happening in any significant or meaningful way in departments. Apart from general policies and practices that affect all staff, there are no specific programmes that recognize women as separate women as a separate interest group with specific interest and needs. This includes issues related to recruitment, training and addressing the practical needs of women. Participants at senior management level argued that the predominantly male culture has made it difficult for their voices to be heard.

27. Structures: • There is a lack of a clearly defined institutional framework that is necessary to facilitate the attainment of the vision of gender mainstreaming. • Roles and responsibilities within the National Gender Machinery need to be clarified and then implemented and institutions held accountable for its success or lack thereof, within the Public Service. • The national structures established to promote women’s empowerment and gender equality (specifically the OSW and the Commission for Gender Equality) will need to be strengthened to be able to provide the support and services required by government departments in implementing and monitoring gender mainstreaming.

28. Processes: • Gender mainstreaming is not included in any departmental planning, monitoring and budgeting processes apart from ensuring that employment equity targets are met. • To achieve gender equality, government must embark on a rigorous gender mainstreaming strategy. • To this end, much of the responsibility for planning and implementing effective and innovative strategies for the promotion of women’s empowerment and gender equality will rest equally with key structures of the National Machinery and with individual government departments at the national, provincial and local levels.

29. Family Friendly Policies: • The only provision allowing for women’s practical needs such as attending to a sick child is by taking Family Responsibility Leave provided for in the Basic Conditions of Employment Act. • Apart from this there are no family friendly policies. • The Family Responsibility leave on its own is wholly inadequate in responding to the practical needs that women face and seems to have been a knee ierk response to addressing issues such as these. • In addition, management still sees parenting as a woman’s responsibility and responds with skepticism when men request time to attend to parenting duties.

30. Management responses to gender mainstreaming: • There is a lack of support for gender mainstreaming from senior management based on a lack of understanding about “how” to do gender mainstreaming as well as having other departmental priorities. • The lack of knowledge of gender mainstreaming coupled with conservative attitudes from senior management towards gender equity has in many cases a trickle down effect. • There are no discussions about gender mainstreaming, no information flowing from senior management to lower levels, no support for those trying to drive gender mainstreaming, and no zero tolerance for sexual harassment.

31. Recruitment and Promotion Practices: • In most departments recruitment takes place according to the Employment Equity targets as informed by the Employment equity plans. • Women feel disadvantaged from the onset because they have practical needs that impact on their ability to apply for certain jobs. • While there are no formal restrictions on the recruitment of women into senior positions, some subtle discrimination might come into play such as obstacles or perception about the work that men and women should be doing. For example, secretarial work is generally seen as a women’s work.

32. Gender Relations: • In general, relationships between men and women are described as satisfactory and largely determined by position. • However, many women felt undermined, not respected or appreciated by male colleagues. • On the other hand, many women preferred having men as managers citing that women bosses are much harder, less sympathetic and flexible. • What was most significant was that the majority of women said that when women are in leadership “they do not support other women; do not encourage mobility of other women and generally behave more like men and even worse”.

33. Sexual Harassment • Junior and senior staff display a lack of knowledge and understanding about sexual harassment. • Often cited was the continued fear of victimization from the perpetrator and colleagues who were usually other senior management staff, as well as pressure from peers and sympathy displayed to the perpetrator because ‘he has a family’. • The lack of confidentiality of those staff to whom sexual harassment matters were being reported was of great concern, almost replicating secondary victimization. • It was clear from the little evidence received that sexual harassment is largely ignored in the Public Service. Victims would rather not take action but choose the safer route of going to the Employee Assistance Programmes (EAP) for counseling.

34. Bibliography • The Case for South Africa (as put for forth in the public statements of Eric Louw, Foreign Minister of South Africa, 1963 McFadden Books edited by H.H.H. Biermann) • Africa the Time has Come – T. Mbeki 1998 • The White Paper Affirmative Action • The White Paper on Human resource Management • The Public Service Act, 1994 (reflecting the law as at 1st July 1999) • The Public Service Regulations • Timeline of Affirmative Action Milestones (www.infoplease.com/spot/affirmativetimelinel.html/) • Australian Public Service Website (www.opsc.gov.au) • Http://en.wikipedia.org/wiki/Affirmative_action • Employment Equity Act No. 55 of 1998 (www.labour.gov.za/Legislature/legislation_display.jsp?id=5954) • An Audit of Affirmative Action in the Public Service (PSC) • Gender Mainstreaming initiatives in the South African Public Service