The The Employment Employment

Equity BusEquity Bus

The Employment Equity Amendment ActThe Employment Equity Amendment Act

Winston OwenOwen, Adendorff & Associates (Pty) LtdMANAGEMENT CONSULTANTS AND TRAINING PROVIDERSImproving Business – Developing People

Motivations for Motivations for Employment EquityEmployment Equity

1. BEE

2. The Fine

3. The Right Thing1. Historical Inequalities

2. Skills Gap

3. Social Stability

1.1.Assessment of ComplianceAssessment of Compliance

Amended Assessment of Amended Assessment of ComplianceCompliance

1. Extent of representation of Suitably Qualified People

2. Demographic Profile of National EAP

3. Progress in elimination of barriers to EE

4. Reasonable steps taken to: - 1. Train SQP

2. Implement the EE Plan

3. Appoint SQP

4. Promote SQP

What’s out?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? What’s New?

• “Reasonable steps taken to: - – appoint SQP & – promote SQP”

• Additional Regulation on horizon• Employer may raise grounds for failure to comply

2.2.Arbitrary GroundsArbitrary Grounds

Unfair DiscriminationUnfair Discrimination- Arbitrary Grounds- 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 27Section 27

• Income Differentials “and Discrimination”

• Includes terms & conditions of employment

3. 3. Equal T’s & C’s ApplyEqual T’s & C’s Apply

Remuneration S6Remuneration 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 Assessing ‘Work of Equal Value’Value’

(5) “The Minister ... may issue a regulation setting out the criteria and the methodology for assessing work of equal value ...”

EEA4 Remuneration EEA4 Remuneration Includes...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 RegulationDraft RegulationJustificationsJustifications

1. Seniority & Length of Service

2. Quality & quantity of work produced

3. Demotion without reduction of pay

4. Temp employment for training or experience

5. Scarcity of skill & market value of job

JD Edwards

CaveatCaveat

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:Warning:

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

Section 27Section 27

“Income Differentials and Discrimination”

“Must take measures to progressively reduce such differentials”

44..Burden of ProofBurden of Proof

“Arbitrary” Grounds

• Complainant:1. Conduct is not rational

2. Amounts to discrimination and

3. Discrimination is unfair

Other Grounds in S6(1)

• Employer:– Discrimination did not take place or

– Discrimination is: • Rational

• Not unfair or

• Justifiable

55..FINE!FINE!

FINEFINEOLD PROCESS (S36)OLD PROCESS (S36)

“Inspector must request written undertaking from Employer to comply within a specific period for failure to comply with [omni]

Amended Process Amended Process for Fining for Fining (S36)(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 comply3. DG applies to LC4. LC makes undertaking an order of the Court.

FINEFINEOLD PROCESS (S37)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

FINEFINEOLD PROCESS (S37)OLD PROCESS (S37)

1. Issue a compliance order on refusal or failure to comply2. Issuing Inspector serves copy on Employer3. Employer objects in writing within 21 days

4. DG considers objection

5. DG serves copy of decision within 60 days6. Employer appeals to LC within 21 days7. LC considers & makes decision8. Employer appeals to LAC9. LAC considers & makes decision

DoL Request

UndertakingDoL

Issues Compliance

Order

DGConsiders Objection

LC Considers

Appeal

Fine Old Process

LAC Considers

Appeal

Order of Court or Fine

InspectorRequests

Undertaking

DGApplies to

LC

Order of The Court Fine

New Fine Process

Amended Process Amended Process for Fining for Fining (S37)(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 ...In other words ...

• Inspector has the choice: – A) Request written undertaking or– B) Issue compliance order.

S37 ContinuedS37 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 AboutWhat About

1. S20 – Prepare and implement the EE Plan?

2. S21 – Submit EEA2 & 4?

Alternative Fine ProcessAlternative Fine ProcessDG Review (S45)DG Review (S45)

1. Review of Compliance by DG

2. DG issues recommendation to Employer

3. Employer fails to comply within timeframes

4. DG refers non-compliance to LC

5. LC consider & award fine

DG Reviews

Compliance

DG Issues

Recommendation

DG Refers to

LC

LC Awards

Fine

Alternative: DG ReviewFine Process

““Fining Made Easier”Fining Made Easier”

Amended Process Amended Process DG Review DG Review (S45)(S45)

1. DG Request or Recommendation

2. Failure to Comply within Specified Time

3. DG applies to Labour Court for an Order

4. LC gives order

5. Employer presents justification6. LC considers Employer’s Justification

7. If justification fails, LC imposes fine.

Possible FinesPossible 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 LimitsTime 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 ManagersImplications for Managers

• Board?• HR Managers?• Senior Managers Responsible?

Responsible Responsible Senior ManagerSenior 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

CASCADE RESPONSIBILITY...

Health And Safety Principle:Health And Safety Principle:

TEAM APPROACH!

Thank You Thank You for Attendingfor Attending

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