EMPLOYMENT EQUITY: TUT 22 JULY 2009

Employment Equity Act, Act No. 55 of 1998 FRAMEWORK Eliminate discrimination; Promote equity ……in the workplace

Employment Equity Act, Act No. 55 of 1998 Meaning of Objectives: To eliminate discrimination; Section 5: places duty on employer to achieve equal opportunities by eliminating unfair discrimination; and Beneficiaries: persons from and who experienced both past and present disadvantage; ……in the workplace

Employment Equity Act, Act No. 55 of 1998 Meaning of Objectives: To promote employment equity; Positive measures to deal with disadvantages of the past, and present; Not merely steps to prevent current discrimination BUT there must be equality in outcomes; and Section 6: suggest that unlisted ground can constitute unfair discrimination ……in the workplace

Employment Equity Act, Act No. 55 of 1998 CORE OF THE ACT: CENTRAL POINT Affirmative Action; Measures include Preferential Treatment Numerical Goals Exclude Quotas Barriers for non-designated group employees

DEFINITIONS EMPLOYMENT EQUITY “ The promotion of equal opportunity and fair treatment in employment through the elimination of unfair discrimination, and the implementation of affirmative action measures to redress the disadvantages in employment experienced by people from designated groups, in order to ensure their equitable representation in all occupational categories and levels in the workplace” Designated Groups; - Black People (Africans, Coloureds + , Indians) - Women - People with Disabilities

DEFINITIONS Designated groups – “means Black people (i.e. Africans, Coloureds and Indians), women and people with disabilities who are natural persons and: are citizens of the Republic of South Africa by birth or descent; or - are citizens of the Republic of South Africa by naturalisation before the commencement date [i.e. 27 April 1994] of the Constitution of the Republic of South Africa Act of 1993; or - became citizens of the Republic of South Africa after the commencement date of the Constitution of the Republic of South Africa Act of 1993, but who, not for Apartheid policy that had been in place prior to that date, would have been entitled to acquire citizenship by naturalisation prior to that date.”

DEFINITIONS Affirmative Action “ A system or measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in a workforce of a designated employer.”

DEFINITIONS Equal Opportunities “ The process wherein an employer undertake to assess its workplace, identify barriers and develop redress mechanism.”

DEFINITIONS DISABILITY People who: Have a Physical or mental impairment; Which is long-term or recurring; and Substantially limits their prospects of entry into, or advancement in employment

DEFINITIONS REASONABLE ACCOMMODATION Measures which include, but are not limited to: Assistance in making workplaces more accessible; Workstation modifications; and Adjustments to work schedules

DEFINING STAKEHOLDER’S ROLES THE EMPLOYER The CEO, as the employer, has the sole accountability conferred to them by the Act. ASSIGNED SENIOR MANAGER/S Individual/s assuming the responsibility of implementing and monitoring progress in the implementation of the employer’s Employment Equity Plan. EE CONSULTATIVE STRUCTURE (FORUM) A committee representative of the interests of all categories and levels of employees, set up by the employer for consultation purposes on employment equity matters.

THE EMPLOYER Mandate Function/Role The EMPLOYER has the sole accountability for the development and implementation of the provisions of the Act in his/her operations. Function/Role To ensure that the employer implements the provisions of the EE Act as stipulated in section 13; To ensure compliance with relevant sections of the act and supporting Regulations, Codes, TAGs, etc, i.e. sections. 18, 21 – 27, 34, 57, and 59 – 61, and

THE EMPLOYER Mandate Function/Role The EMPLOYER has sole accountability for the implementation of the provisions of the Act in his/her employ. Function/Role Monitor the implementation and progress on the Employment Equity Plan, and Encourage participation for increased compliance by all employees, as per section 34.

EMPLOYER’S ROLE: WHAT DOES THIS MEAN? Function/Role Mandate; - The EMPLOYER has sole accountability for the implementation of the provisions of the Act in his/her employ; and Function/Role Ensure there’s a representative consultative committee for consultation, and members are all conversant with employment equity matters; Create awareness and a common understanding of the business of the organization; Ensure there’s documented processes i.r.o compliance to sections; 18 – Disclosing relevant information for consultation purposes; Sections 21, 22, 23, 24, 25, 34, etc; 26 – Keeping records at all times;

EMPLOYER’S ROLE: WHAT DOES THIS MEAN? Mandate; The EMPLOYER has sole accountability for the implementation of the provisions of the Act in his/her employ. Function/Role Ensure there’s documented processes i.r.o compliance to sections; 27 – To address matters relating to remuneration anomalies in the organization, 57 – To take cognizance of the status of all types of contract employees in regard to employment equity matters, and 59 – 61 – To ensure that all employees understands these provisions and that there are deliberate efforts to encourage compliance

EMPLOYER’S ROLE: WHAT DOES THIS MEAN? Mandate; - The EMPLOYERR has sole accountability for the implementation of the provisions of the Act in his/her employ. Function/Role Monitor the implementation and progress on the Employment Equity Plan: The EMPLOYER must ensure that the process outlined above is replicated in business units; The EMPLOYER must ensure that EE is well resourced, financially and human resources, to discharge its mandate effectively and efficiently; The appointment of the Senior Manager(s) is pivotal, who is reporting directly to the EMPLOYER(CEO) and Report annually to the Department of Labour.

ASSIGNED SENIOR MANAGER

ASSIGNED SENIOR MANAGER Assigned senior manager/s for employment equity must be: - Permanent, report directly to the CEO on employment equity matters. This person must have key employment equity outcomes incorporated into their performance contracts; - Given the necessary executive authority and mandate; and - Provided with an appropriate budget and access to other required resources.

SENIOR MANAGER’S ROLE: ASSIGNED MANAGER SENIOR MANAGER’S ROLE: Mandate To develop and implement strategy, process management and monitor implementation for the employer; A Senior Manager(s) to assume fulltime responsibility of this role; Function/Role To facilitate setting up of structures and systems for the implementation of employment equity by the employer; and To manage the employment equity plan monitoring and implementation processes of the employer, in accordance with all compliance requirements, both internally and externally.

Function/Role SENIOR MANAGER’S ROLE: WHAT DOES THIS MEAN? Mandate; To act as a process management (catalyst) and monitoring and implementation unit for the employer; A Senior Manager(s) to assume fulltime responsibility of this mandate and role; Function/Role To ensure that: Consultative Body(ies) are established and capacitated; The employer consults with the Consultation Body; The employment equity consultation agenda is set; The employment equity plan is developed and agreed upon for implementation; Assistance is provided in the implementation of the employment equity plan; Reporting to the Department of Labour (prepare and submit on behalf of the employer);

Function/Role SENIOR MANAGER’S ROLE: WHAT DOES THIS MEAN? Mandate; To act as a process management (catalyst) and monitoring and implementation unit for the employer; A Senior Manager(s) to assume fulltime responsibility of this mandate and role; Function/Role Monitors the implementation of the employment equity plan and advises on compliance levels, or lack thereof: Ensure that all Divisions have employment equity consultative structures; Ensure that employment equity plans are developed and implemented; Ensure that Managers have the responsibility of employment equity in their KPIs, and that the responsibility is cascaded further down to line functionaries; Ensure adequate employment equity reporting to Executive and in preparation for reporting to the Department of Labour;

HUMAN RESOURCES:

HUMAN RESOURCES Mandate; Function/Role To act as an information hub for employment equity processes; To provide information service to all stakeholders to the process, i.e. Exco and the Employment Equity Committee. Function/Role To make available information for consultation purposes; To implement policies, practices and procedures in accordance with the provisions of the agreed Employment Equity Plan and/or other related priorities.

Function/Role Human Resources Function: WHAT DOES THIS MEAN? Mandate; To act as an information resource centre for employment equity processes; To provide information service to all stakeholders to the process, i.e. Group Exco and EEC. Function/Role To provide packaged information for consultation on; Staff profiles; Recruitment and Termination Profiles; Career and Development Profiles (skills Development); Remuneration profiles; Contract management profiles, incl. the employment of foreigners Performance management profiles, etc.

To ensure that all line functionaries comply with; Human Resources: WHAT DOES THIS MEAN? Mandate; To act as an information resource centre for employment equity processes; To provide information service to all stakeholders to the process, i.e. Exco and EEC. Function/Role To ensure that all line functionaries comply with; Policy requirements as it relates to employment equity; and Monitor deviances in implementation practices and procedures; Provide reports on specific matters as required by consultation processes or key stakeholders; and Report any inappropriate practices and non-procedural matters to all , without prejudice.

EMPLOYMENT EQUITY COMMITTEE DEFINITION: CONSULTATION “…MEANS… A statement of a proposal not yet finally decided upon, listen to what others have to say, considering their responses and then deciding what will be done”

Section 16: Consultation with employees An employer must take reasonable steps to consult and attempt to reach agreement on the matters for consultation (sections 19, 20 & 21). With a representative trade union representing members at the workplace and its employees or representative trade union nominated by them; or If no representative trade union represents members at the workplace, with its employees or representatives nominated by them; The employees or their nominated representatives with whom an employer consults in terms of (a) and (b), taken as whole, must reflect the interests of:-

INTERPRETATION The employees or their nominated representatives with whom an employer consults in terms of (a) and (b), taken as whole, must reflect the interests of – Employees from across all occupational categories and levels; Employees from designated groups; and Employees who are not from designated groups

CONSULTATIONS: – > All employees must be informed of the content and application of the Act, employment equity and anti- discrimination issues, the process to be followed by the employer, and the need for the involvement of all stakeholders, as preparation for their participation and consultation. > A consultative forum must be established or an existing forum utilised. The forum must include employee representatives reflecting the interests of employees from both designated and non-designated groups.

Consultations:– (cont…) Consultation must include:. - Consultations:– (cont…) Consultation must include: - Regular meetings and feedback to employees and management; and - Access to relevant information by employees. > Where a representative body or trade union refuses to take part in the consultation process, the employer must record the circumstances in writing. A copy of this document must be provided to the representative body or trade union concerned.

Mandate EMPLOYMENT EQUITY COMMITTEE: The EE Committee Function/Role To represent all employees of the employer while consulted by the employer on all employment equity matters; Function/Role To be consulted as per sections 13 and 16 by the employer; To be consulted in terms of section 17 and other related matters; To monitor the implementation and progress on the Employment Equity Plan, and give effect to Sec. 34.

The EE Committee Function/Role EE COMMITTEE: WHAT DOES THIS MEAN? - To represent all the employees of the employer on employment equity matters; Function/Role To ensure that the consultative body is established in accordance with the set provisions (13 & 16); To ensure that the role of the Forum is integrated into the individuals’ KPIs, and it is part of the overall organizational strategy;

The EE Committee : Function/Role EE COMMITTEE: WHAT DOES THIS MEAN? Mandate; - To represent all the employees of the employer on employment equity matters; Function/Role To participate or engage with the employer on matters provided for in sections 17, and other related matters; Analysis of the workplace (Section 19), EE Plan and implementation (Section 20), and EE Reporting to the DOL (Section 21)

The EE Committee : Function/Role EE COMMITTEE: WHAT DOES THIS MEAN? Mandate; - To represent all the employees of the employer on employment equity matters; Function/Role Monitor the implementation and progress on the Employment Equity Plan; Encourage active participation by all employees as per Section 34 (Unionised, Non-unionised, Interest groups & Management), and Monitor reporting to Exco.

The EE Committee: Function/Role EE COMMITTEE: WHAT DOES THIS MEAN? Mandate; - To represent all the employees of the employer on employment equity matters; Function/Role Monitor reporting to Exco 25 – Informing employees on all employment equity matters; 26 – Ensure keeping of records on all processes;

The EE Committee: Function/Role EE COMMITTEE: WHAT DOES THIS MEAN? Mandate; - To represent all the employees of the employer on employment equity matters; Function/Role Monitor reporting to Exco Ensure there’s documented processes i.r.o compliance to sections; 27 – To address matters relating to remuneration anomalies in the organization, 34 – Encourage monitoring and reporting of non-compliance where it exists,

OTHER ROLES Code of Conduct Disciplinary Procedure No role to be played by the Forum unless:- The issue under the disciplinary hearing was referred by the forum; or There may be a claim of unfairness in the Disciplinary hearing proceedings; then The Forum may participate as observers to ensure material fairness; and May make recommendations. Code of Conduct No role by the Forum in either awareness or enforcement unless:- The enforcement procedure is deemed unfair by an employee; The Unfair claim has been brought to the forum; then The Forum may participate as observers to ensure material fairness, and May make recommendations.

DEPARTMENT OF LABOUR DIRECTORATE: EMPLOYMENT EQUITY MADITSE MOLANE Tel.: 012 309 4331 Fax: 012 309 4737/9 E-mail: maditse.molane@labour.gov.za