TheEmployment 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.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? “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.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

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.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

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.Issue a compliance order on refusal or failure to comply 2.Issuing Inspector serves copy on Employer 3.Employer objects in writing within 21 days 4.DG considers objection 5.DG serves copy of decision within 60 days 6.Employer appeals to LC within 21 days 7.LC considers & makes decision 8.Employer appeals to LAC 9.LAC considers & makes decision

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

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

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.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 Awards Fine Alternative: DG Review Fine Process

“Fining Made Easier”

Amended Process DG Review (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 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 NoneR1,500,00The greater of R1,500,00 or 2% Turnover Four (4)R2,700,00The 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

CASCADE RESPONSIBILITY... Health And Safety Principle: TEAM APPROACH!

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