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The Employment Equity Bus

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. BEE The Fine The Right Thing

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The Employment Equity Bus

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  1. 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

  2. Motivations for Employment Equity • BEE • The Fine • The Right Thing • Historical Inequalities • Skills Gap • Social Stability

  3. 1.Assessment of Compliance

  4. Amended Assessment of Compliance • Extent of representation of Suitably Qualified People • Demographic Profile of National EAP • Progress in elimination of barriers to EE • Reasonable steps taken to: - • Train SQP • Implement the EE Plan • Appoint SQP • Promote SQP

  5. 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

  6. What’s New? • “Reasonable steps taken to: - • appoint SQP & • promote SQP” • Additional Regulation on horizon • Employer may raise grounds for failure to comply

  7. 2.Arbitrary Grounds

  8. 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.”

  9. Section 27 • Income Differentials “and Discrimination” • Includes terms & conditions of employment

  10. 3. Equal T’s & C’s Apply

  11. Remuneration S6 (4) “A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same workofequal value that is directly or indirectly based on any more of the grounds listed in subsection (1) or onany other arbitrary ground is unfair discrimination.”

  12. 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 ...”

  13. EEA4 Remuneration Includes...

  14. Draft RegulationJustifications • 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

  15. Caveat Justifications must: - • Not be bias against employees on account of race, gender or disability status and • Be applied in a proportionate manner.

  16. Warning: EE Committee may be able to demand consultation takes place on differentials in T’s & C’s: EEA4.

  17. Section 27 “Income Differentials and Discrimination” “Must take measures to progressively reduce such differentials”

  18. 4.Burden of Proof “Arbitrary” Grounds • Complainant: • 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

  19. 5.FINE!

  20. FINEOLD PROCESS (S36) “Inspector must request written undertaking from Employer to comply within a specific period for failure to comply with [omni]

  21. Amended Process for Fining (S36) • 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) • Failure to comply • DG applies to LC • LC makes undertaking an order of the Court.

  22. FINEOLD PROCESS (S37) • Issue a compliance order on • Refusal to give written undertaking or • Failure to comply with written undertaking • Issuing Inspector serves copy on Employer • Employer objects in writing within 21 days • DG considers objection

  23. FINEOLD PROCESS (S37) • Issue a compliance order on refusal or failure to comply • Issuing Inspector serves copy on Employer • Employer objects in writing within 21 days • DG considers objection • 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

  24. LAC Considers Appeal DoL Issues Compliance Order DG Considers Objection LC Considers Appeal Fine Old Process Order of Court or Fine DoL Request Undertaking

  25. Inspector Requests Undertaking DG Applies to LC Order of The Court Fine New Fine Process

  26. Amended Process for Fining (S37) • 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

  27. In other words ... • Inspector has the choice: • A) Request written undertaking or • B) Issue compliance order.

  28. 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

  29. What About • S20 – Prepare and implement the EE Plan? • S21 – Submit EEA2 & 4?

  30. Alternative Fine ProcessDG Review (S45) • 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

  31. DG Issues Recommendation DG Refers to LC LC Awards Fine Alternative: DG ReviewFine Process DG Reviews Compliance

  32. “Fining Made Easier”

  33. Amended Process DG Review (S45) • DG Request or Recommendation • Failure to Comply within Specified Time • DG applies to Labour Court for an Order • LC gives order • Employer presents justification • LC considers Employer’s Justification • If justification fails, LC imposes fine.

  34. Possible Fines

  35. 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

  36. Implications for Managers • Board? • HR Managers? • Senior Managers Responsible?

  37. 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

  38. Health And Safety Principle: Cascade Responsibility... Team Approach!

  39. Graphic Lessons Thank You for Attending

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