The
Employment
Equity Bus
The Employment Equity Amendment Act
Winston Owen
Owen, Adendorff & Associates (Pty) Ltd
MANAGEMENT CONSULTANTS AND TRAINING PROVIDERS
Improving Business – Developing People
Motivations for
Employment Equity
1. BEE
2. The Fine
3. The Right Thing
1. Historical Inequalities
2. Skills Gap
3. Social Stability
1.
Assessment of Compliance
Amended Assessment of
Compliance
1.
2.
3.
4.
Extent of representation of Suitably Qualified People
Demographic Profile of National EAP
Progress in elimination of barriers to EE
Reasonable steps taken to: 1.
2.
3.
4.
Train SQP
Implement the EE Plan
Appoint SQP
Promote SQP
What’s out?
No longer “take into account:-”
•
•
•
•
•
•
Pool of SQP
Present & planned vacancies
Labour turnover
Progress made by others in Sector
Economic factors of sector
Economic & financial factors of Employer
– Present
– Anticipated
• Efforts made to implement EE Plan
What’s New?
• “Reasonable steps taken to: – appoint SQP &
– promote SQP”
• Additional Regulation on horizon
• Employer may raise grounds for failure to comply
2.
Arbitrary Grounds
Unfair Discrimination
- Arbitrary Grounds
S6(1) “No person may unfairly discriminate ... Against an
employee in any employment policy or practice, on
grounds of race, gender, sex, marital status, family ... HIV
status ... language, ...or any other arbitrary ground.”
Section 27
• Income Differentials “and Discrimination”
• Includes terms & conditions of employment
3.
Equal T’s & C’s Apply
Remuneration S6
(4) “A difference in terms and conditions of employment
between employees of the same employer performing the
same or substantially the same work of equal value that is
directly or indirectly based on any more of the grounds listed
in subsection (1) or on any other arbitrary ground is unfair
discrimination.”
Assessing ‘Work of Equal
Value’
(5) “The Minister ... may issue a regulation setting out the
criteria and the methodology for assessing work of equal
value ...”
EEA4 Remuneration
Includes...
INCLUSIONS IN REMUNERATION CALCULATIONS
Housing or accommodation allowance or subsidy …
Car allowance or provision of a car, except to the extent that the car is
provided to enable the employee to work
Any cash payments made to an employee, except those listed as
exclusions … ;
Contributions to medical aid, pension, or similar schemes
Contributions to funeral or death benefit schemes.
Draft Regulation
Justifications
1.
2.
3.
4.
5.
Seniority & Length of Service
Quality & quantity of work produced
Demotion without reduction of pay
Temp employment for training or experience
Scarcity of skill & market value of job
JD Edwards
Caveat
Justifications must: 1. Not be bias against employees on account of race, gender
or disability status and
2. Be applied in a proportionate manner.
Warning:
EE Committee may be able to demand consultation takes
place on differentials in T’s & C’s: EEA4.
Section 27
“Income Differentials and Discrimination”
“Must take measures to progressively reduce such differentials”
4.
Burden of Proof
“Arbitrary” Grounds
• Complainant:
1.
2.
3.
Conduct is not rational
Amounts to discrimination and
Discrimination is unfair
Other Grounds in S6(1)
• Employer:
– Discrimination did not take place or
– Discrimination is:
• Rational
• Not unfair or
• Justifiable
5.
FINE!
FINE
OLD PROCESS (S36)
“Inspector must request written undertaking
from Employer to comply within a specific
period for failure to comply with [omni]
Amended Process
for Fining (S36)
1. Inspector may request written undertaking from
Employer to comply within a specific period for
failure to: –
–
–
–
–
–
Consult with Employees
Conduct the analysis
Publish its EE Report in AFS
Assign responsibility to Senior Manager(s)
Inform employees (S25)
Keep records (S26)
2. Failure to comply
3. DG applies to LC
4. LC makes undertaking an order of the Court.
FINE
OLD PROCESS (S37)
1. Issue a compliance order on
1. Refusal to give written undertaking or
2. Failure to comply with written undertaking
2. Issuing Inspector serves copy on Employer
3. Employer objects in writing within 21 days
4. DG considers objection
FINE
OLD PROCESS (S37)
1.
2.
3.
Issue a compliance order on refusal or failure to comply
Issuing Inspector serves copy on Employer
Employer objects in writing within 21 days
4. DG considers objection
5.
6.
7.
8.
9.
DG serves copy of decision within 60 days
Employer appeals to LC within 21 days
LC considers & makes decision
Employer appeals to LAC
LAC considers & makes decision
Fine Old Process
DoL
Request
Undertaking
DoL
Issues
Compliance
Order
DG
Considers
LC
Objection Considers
LAC
Appeal Considers
Appeal
Order of
Court or
Fine
New Fine Process
Inspector
Requests
Undertaking
DG
Applies to
LC
Order of
The Court
Fine
Amended Process
for Fining (S37)
1. Inspector may issue a compliance order for
failure to comply with
–
–
–
–
–
–
S16 & 17 - Consult with Employees
S19 - Conduct the analysis
S22 - Publish its EE Report in AFS
S24 - Assign responsibility to Senior Manager(s)
S25 - Inform employees
S26: - Keep records
In other words ...
• Inspector has the choice:
– A) Request written undertaking or
– B) Issue compliance order.
S37 Continued
• Anyone can serve the notice of order obo Inspector;
• No option for Employer to object to compliance order
• DG applies to LC to make it Order of Court
What About
1. S20 – Prepare and implement the EE Plan?
2. S21 – Submit EEA2 & 4?
Alternative Fine Process
DG Review (S45)
1.
2.
3.
4.
5.
Review of Compliance by DG
DG issues recommendation to Employer
Employer fails to comply within timeframes
DG refers non-compliance to LC
LC consider & award fine
Alternative: DG Review
Fine Process
DG
Reviews
Compliance
DG
Issues
Recommendation
DG
Refers to
LC
LC
Awards
Fine
“Fining Made Easier”
Amended Process
DG Review (S45)
1.
2.
3.
4.
DG Request or Recommendation
Failure to Comply within Specified Time
DG applies to Labour Court for an Order
LC gives order
5. Employer presents justification
6. LC considers Employer’s Justification
7. If justification fails, LC imposes fine.
Possible Fines
Previous
Contravention
Contravention of
S16,19,22,24,25, 26,27 &43
Contravention of
S20,21,21 &44
None
R1,500,00
The greater of R1,500,00
or 2% Turnover
Four (4)
R2,700,00
The greater of R2,700,00
or 10% Turnover
Time Limits
• If employer notifies DG in writing of non acceptance of
request or recommendation (within period specified) ...
• Then DG has:
– 90 days (Request)
– 180 days (Recommendation)
... to institute proceedings
Implications for Managers
• Board?
• HR Managers?
• Senior Managers Responsible?
Responsible
Senior Manager
•
•
•
•
EE Act Compliance
Implement EE & AA Strategy
Removal of Unfair Discrimination
Develop & Publish Policies
– Employment Equity
– Sexual Harassment
– Disabilities - Consultative
– HIV/AIDS - Consultative
• Maintain Evidence File
Health And Safety Principle:
TEAM APPROACH!
Graphic
Lessons
Thank You for Attending