The acting chair of the Commission for Employment Equity, Tabea Magodielo, says the idea of a sunset clause for employment equity is "pie in the sky". The commission released its annual report on equity compliance last week in which she says there is "no real commitment" to transformation.The latest to call for an end to employment equity is Nazeem Martin, the MD of Business Partners, which funds small and medium enterprises.Last week, he told Business Times that if the government was serious about developing an entrepreneurial culture, the policy must go because it disincentivised the creation of new businesses by black entrepreneurs.story_article_left1Several black business leaders of stature and experience, notably former Nedbank chairman Reuel Khoza, say all the policy has done is inspire a class of white entrepreneurs."And that is very good for our economy," Magodielo says. "Because they will need to employ people, and they will need to look at employment equity."So all those who think employment equity is counterproductive need to stop for a little and think of the positives."Magodielo, a clinical psychologist by training, says it must be continued until demographic representivity is achieved at every senior management and executive level throughout corporate South Africa."In 20 years we've only achieved a 13.6% increase of designated groups at top management. So in 40 years, if we continue at the same rate, we will probably have achieved a 26% increase. So if we want to reflect the demographics of this country, then do the maths. How long is it going to take?"Instead of a sunset clause, she wants stiffer penalties for businesses that fail to reach employment equity targets, and has even punted the idea that offending executives be jailed, although when pressed she says she'd rather fine their companies 10% of turnover.Business Unity South Africa and the South African Chamber of Commerce and Industry have warned this will see more businesses relocating."Possibly," says Magodielo. "But we got to this place because of legislation, and some things, in order for them to change, need legislation. Unfortunately, that's the reality."The commission is to take about 1000 companies to the Labour Court for noncompliance, she says.She won't name them, but adds: "Some of these are very big companies. You will find out. We're taking them to court and you will find out."That these companies provide jobs and taxes and are battling to survive in an economy that is effectively going backwards seems of no concern."When people don't comply with the law, what do you do? You come down hard on them."Magodielo declares in the commission's report that "the willingness to transform is lacking amongst most of the top echelons of business".The chamber of commerce and Busa question the basis for this conclusion, which they say does not reflect the situation of their member companies at all."I don't know where the commission is coming from with their threats," says Khanyisile Kweyama, Busa CEO and former executive director of Anglo American South Africa. "I don't know what they've seen that we haven't seen."block_quotes_start If we identify a company where we feel issues of compliance are a problem, there would be a visit to that employer block_quotes_endThe chamber's Peggy Drodskie says she doesn't know how the commission arrived at its conclusions. "There may be very valid reasons why businesses have not been able to comply," she says. "Those reasons need to be interrogated."Magodielo admits the commission doesn't do its own research but "pulls" the statistics on which its findings are based from information submitted by employers. "That is the information we use to prepare our report and make our findings."Strikingly, the report ignores the appalling economic environment confronting the companies it judges so harshly. But Magodielo says the commission's job is to tell the government what's happening in the labour market - not why it's happening.Her verdict on the impact of economic circumstances is as blunt as it is basic. "Recruitment is happening. If the economy was not growing, then we would have zero recruitment."She believes if jobs are being shed, then they must be shed in a way that is demographically representative."Don't use it as an excuse for not meeting your employment equity targets."Did the commission interrogate the reasons why companies are not meeting employment equity targets?"If we identify a company where we feel issues of compliance are a problem, there would be a visit to that employer," she says.Her statement in the report suggests that issues of compliance are a problem for most employers in the country. How many companies did her commission actually engage with?"That's a very difficult question. As you know, to a large extent the department [of labour, under which the commission falls] is understaffed."story_article_right2Ten percent of companies? Less than 10%? More than 10%?"I wouldn't be able to give you that figure. But it's an ongoing process and we're continuing to improve on it."As part of the process, the commission has asked employers to nominate themselves for "employment equity awards", she says.In lieu of going to visit them?"No, we're dialoguing with them, we're scaling up on the visitations and really understanding what their challenges are."She says they cite lack of skills and attrition of senior black managers. Lack of skills is "a fairly major obstacle", she concedes, but not necessarily a valid one. By the same token, attrition "is a problem" but also "an excuse" that she won't buy."If we are to accept attrition as an excuse, then it would follow that when opportunities arise to employ people from designated groups because of the high rate of attrition they would do so. But we see that they still go on and employ white top managers."What about the chamber and Busa saying the report does not reflect reality?"If our report doesn't reflect what is happening, then it makes me ask: 'Are they giving us information that is accurate?' Because this report is not cooked. It is based on information we receive from the very employers who are saying we're not in touch."Is she justified in assuming that because, by their own admission, they're struggling to meet targets, "there is no real commitment to transformation amongst most of the top echelons of business"?Yes, she says. She hopes I have the report in front of me because she wants to "paint a scenario".To sum up: "If you look at the statistics, there's a lot more economically active African males sitting at lower levels that in my mind can be moved up to top management, but they're not. Is that a commitment to employment equity?"Given her training as a psychologist, is she competent to second-guess decisions by experienced business executives?story_article_left3Indeed she is, she says. She runs a recruitment company "that interfaces with a lot of corporates". A lot of corporates, in fact, whose lives she can make difficult if she so chooses.A conflict of interest?Not at all, she says. But getting back to the matter of her competence I must remember that she is not alone, but part of a commission.She does concede that only two members of the eight-member commission, herself and one other, have any business experience.The rest, according to the report, include the head of policy for the SACP, two senior government officials, a social worker, a former president of the South Africa Municipal Workers' Union who once had a leadership position in the ANC Youth League and ANC Women's League, and National Union of Metalworkers of South Africa president Andrew Chirwa. According to the report, he is also a member of the central executive committee of Cosatu, which Numsa left some time ago.Are they qualified to criticise companies that employ foreigners in senior positions?"We did not criticise," says Magodielo. "We said we are concerned. At this stage we do not have enough information to make conclusions about what their reasons are. Once we know what those reasons are we can talk."At which point these eminences from the SACP, Cosatu and Numsa, plus a psychologist and a social worker, will decide whether Sasol's reasons for wanting the Canadian David Constable to lead the company are valid?"We can't force them to change," says Magodielo. "We can reflect the information that we're getting."..