Employment Equity

1
Employment Equity

• Sue Krantz
• Workplace Performance Technologies (Pty) Ltd
• trading as Workinfo.com

2
Overall Aim Of Workshop

• Assist elected Equity-Skill Committee Members to
  formulate, and agree roles and responsibilities
  to support the companys business plan priorities
  
• Comply with the requirements of the Employment
  Equity, Skills Development, and Skills
  Development Levies Acts
• Ensure that EE initiatives are linked to
  Strategic Objectives
• Action Ideas

3
Agenda

• Assigning responsibility
• Communication Awareness
• Consultation
• Discrimination (Direct / Indirect)
• Systems Review
• Targets (Workforce planning BBBEE Scorecards))
• Plan
• Forms and documents
• Labour Court Judgments
• DOL Assessment

4
Fact Fiction

• Facts and Fiction
• Employment equity means treating everyone the
  same
• Employment equity programmes result in 'reverse
  discrimination'
• Employment equity sets quotas
• Employment equity promotes tokenism
• Employment equity means lowering job standards

5
Overall Aim Of Key Acts

• Bill of Rights ensure constitutional equality
  and dignity of all persons
• Labour Relations Act right to fairness
  equity, establishment of Labour Courts
• Employment Equity Act Implementation of fair and
  non-discriminatory people management practices in
  the workplace, affirmative action measures for
  designated persons
• The Skill development Act Upliftment of the
  unemployed skilling of the employed workforce
  through structured learning training leading to
  qualifications
• Skills Levy Act Ensures financing of training by
  business through a levy grant system (levy
  money into SETAS Grants money back through
  registered training)
• Broad Based Black Economic Empowerment Act The
  goal of BEE is to accelerate and re-align
  economic redistribution by promoting the
  following
• Equitably include black-owned business in the
  flow of money
• Develop the skills and improve education of the
  deprived electorate in order to raise job
  readiness
• Facilitate new job opportunities
• Ensure that ownership of the economy is
  broad-based

6
Constitutional Equality

• Constitutional equality as formulated in section
  9 of the South African Constitution forms the
  backdrop and the standards for the Employment
  Equity Act and should always be considered when
  dealing with employment equity issues. Section 9
  of the Constitution of the Republic of South
  Africa, Act 108 of 1996, reads as follows
• Everyone is equal before the law and has the
  right to equal protection and benefit of the law.
• Equality includes the full and equal enjoyment of
  all rights and freedoms. To promote the
  achievement of equality, legislative and other
  measures designed to protect or advance persons,
  or categories of persons, disadvantaged by unfair
  discrimination may be taken.
• The state may not discriminate directly, or
  indirectly against anyone on one or more grounds,
  including race, gender, sex, pregnancy, marital
  status, ethnic or social origin, colour, sexual
  orientation, age, disability, religion,
  conscience, belief, culture, language, and birth.
• No person may unfairly discriminate directly, or
  indirectly against anyone on one or more grounds,
  including race, gender, sex, pregnancy, marital
  status, ethnic or social origin, colour, sexual
  orientation, age, disability, religion,
  conscience, belief, culture, language, and birth.
• Discrimination on one or more of the grounds
  listed is unfair unless it is established the
  discrimination is fair

7
Constitutional Equality

• Consider
• What is unfair discrimination? Are so-called
  human rights not just prevailing values which
  shift and change over time? Do they really
  reflect the values of society or rather the
  drafters of legislation?
• The Bill of Rights includes the right to life
  this is used to rightly justify the abolishment
  of the death penalty but what about abortion?
• Constitutional rights are often achieved through
  lobby groups HIV/Aids activists, Same Sex
  Marriage. Where are the lobby groups backing the
  rights of disabled persons, the unemployed, the
  right to housing, water, primary health care,
  decent schooling, the right to Anti-Retroviral
  Drugs. Do these lobby groups exist and do they
  have the funds to take their cause to the
  Constitutional Court.

8
Test for unfair discrimination

• Does the provision / conduct or practice
  differentiate between people or groups? And if
  so, does the differentiation bear a rational
  connection to a legitimate government purpose?
• Does the differentiation amount to unfair
  discrimination?
• Does the differentiation amount to
  discrimination?
• If it is on a prohibited ground unfair.
• If not, the test is whether the ground is based
  on attributes and characteristics which have the
  potential to impair the fundamental human dignity
  of persons or to affect them adversely in a
  comparably serious manner.
• Discrimination can also result from an act or
  omission (such as the failure to differentiate
  between disable and able-bodied people).
• If the differentiation amounts to
  discrimination does it amount to unfair
  discrimination?
• Can the unfair discrimination be justified?

9
Aim of the EE Act 55 of 1998

• Recognising that as a result of apartheid and
  other discriminatory laws and practices, there
  are disparities in employment, occupation and
  income within the national labour market and
• that those disparities create such pronounced
  disadvantages for certain categories of people
  that they cannot be redressed simply by repealing
  discriminatory laws,
• The purpose of the Act is to
• promote the constitutional right of equality and
  the exercise of true democracy
• eliminate unfair discrimination in employment
• ensure the implementation of employment equity to
  redress the effects of discrimination
• achieve a diverse workforce broadly
  representative of our people
• promote economic development and efficiency in
  the workforce and
• give effect to the obligations of the Republic as
  a member of the International Labour Organisation
  (esp. International Labour Organisation
  Convention (111) concerning Discrimination in
  Respect of Employment and Occupation)

10
Employment Equity Act

• Chapter II - Prohibition Of Unfair
  Discrimination
• Elimination of unfair discrimination.--Every
  employer must take steps to promote equal
  opportunity in the workplace by eliminating
  unfair discrimination in any employment policy or
  practice.
• Prohibition of unfair discrimination.
• No person may unfairly discriminate, directly or
  indirectly, against an employee, in any
  employment policy or practice, on one or more
  grounds, including race, gender, sex, pregnancy,
  marital status, family responsibility, ethnic or
  social origin, colour, sexual orientation, age,
  disability, religion, HIV status, conscience,
  belief, political opinion, culture, language and
  birth.
• It is not unfair discrimination to-- take
  affirmative action measures consistent with the
  purpose of this Act or distinguish, exclude or
  prefer any person on the basis of an inherent
  requirement of a job.
• Harassment of an employee is a form of unfair
  discrimination and is prohibited on any one, or a
  combination of grounds of unfair discrimination
  listed above.
• Consider
• Chapter II extends a legal obligation on ALL
  EMPLOYERS, not only designated employers
• The Labour Relations Act adds an additional
  ground of unfair discrimination union
  membership
• What is the difference between discrimination on
  grounds of gender sex sexual orientation
• Applicants.--For purposes of Chapter II,
  "employee" includes an applicant for employment.
• Burden of proof.--Whenever unfair discrimination
  is alleged in terms of this Act, the employer
  against whom the allegation is made must
  establish that it is fair.

11
Court Cases

• Prince v President of the Law Society of the Cape
  of Good Hope Constitutional Court - CCT36/00 2002
  (2) SA 794 (CC) 2002 (3) BCLR 231 (CC) - Freedom
  of religion -- religious use of cannabis by
  Rastafari not regarded as unfair
  discrimination. Rastafari not recognised as
  official religion
• Right to brew African beer (without liquor
  licence) - Chidester Religions of South Africa
  (Routledge, London and New York 1992) states at
  235 The freedom to brew beer was not only
  demanded by public sentiment, but also by a
  religious way of life that Mpanza a squatter
  leader suggested was simultaneously African and
  Christian. 'The African when he supplicates his
  gods, slaughters a goat or sheep,' Mpanza noted,
  'brews his traditional beverage'."
• Circumcision - all over the world religiously
  motivated circumcision of infant boys has
  survived even the most stringent of child
  protection laws. Powerful religious organizations
  support it and it has become an everyday and
  accepted part of the social scene. This suggests
  that what matters is not the intrinsic nature of
  the act, but the degree of official acceptance of
  the actors. (compare this to the approach on
  female circumcision in Muslim religion). Can
  under age boys actually give their consent to
  circumcision?
• Prohibition on corporal punishment the
  imposition of corporal punishment directly
  affected the rights of children to be free from
  violence prohibited in schools and at home by
  parents.

12
Employment Equity Act

• Chapter II - Prohibition Of Unfair
  Discrimination
• Medical testing.-- Medical testing of an employee
  is prohibited, unless--
• legislation permits or requires the testing or
• it is justifiable in the light of medical facts,
  employment conditions, social policy, the fair
  distribution of employee benefits or the inherent
  requirements of a job.
• Testing of an employee to determine that
  employee's HIV status is prohibited unless such
  testing is determined justifiable by the Labour
  Court in terms of section 50 (4) of this Act.
• Related Provisions
• Code of Good practice Key aspects of HIV/AIDS
  and employment
• Technical Assistance Guidelines Key aspects of
  HIV/AIDS and employment
• "medical testing" includes any test, question,
  inquiry or other means designed to ascertain, or
  which has the effect of enabling the employer to
  ascertain, whether an employee has any medical
  condition
• Joy Mining Machinery v NUMSA J158-2002 Labour
  Court Irvin Johnson Limited v Trawler Line
  Fishing Union C1126/2002 Labour Court voluntary
  and anonymous testing permitted. Rationale - An
  employer needs to know the extent of HIV
  infection among its work force in order to (a)
  To be pro-active regards prevention of employees
  becoming infected with HIV (b) To treat at a
  minimum, the symptoms of the disease (c) To plan
  for contingencies and other eventualities.
• Consider
• Non-consensual testing permitted by legislation
  e.g. Hepatitis, Tuberculosis (i.e. notifiable and
  disclosable illnesses). Why are these illnesses
  treated differently to HIV/AIDS?
• What will the legislators approach be towards
  SARS (Avian Flu)?
• Drug and alcohol testing (breathalyzers tests not
  considered to be a medical test)
• Why would eye testing be legitimate for
  electricians
• Do psychological conditions (bi-polar disorders,
  dissociative identity disorders DID) constitute
  medical conditions or are they treated as
  disabilities?

13
Employment Equity Act

• Chapter II - Prohibition Of Unfair
  Discrimination
• Psychometric testing.--Psychometric testing and
  other similar assessments of an employee are
  prohibited unless the test or assessment being
  used--
• has been scientifically shown to be valid and
  reliable
• can be applied fairly to employees and
• is not biased against any employee or group.
• Consider
• Polygraph testing accepted in CCMA but rejected
  by Psychometric bodies
• Handwriting analysis valid and reliable?
• Honesty Tests valid and reliable?
• Neuro-Linguistic Programming, Transactional
  Analysis
• Astrology valid and reliable or invalid on
  religious grounds?
• Proposed regulations (19 October 2007) on any
  methods used for the determination of
  intellectual abilities, aptitude, interests,
  personality make-up or personality functioning,
  and the diagnosis or measurement of personality
  and emotional functions, neuropsychological
  disorders and mental functioning deficiencies
• Any person who wishes to perform any of the acts
  mentioned above shall apply to the HPCSA for
  registration as a Psychologist
• How will this impact on recruitment methods and
  cost of recruitment

14
Employment Equity Act

• Chapter III Affirmative Action
• Designated Employer
• A person who employs 50 or more employees or
• Has a total annual turnover that is equal to or
  above the applicable annual turnover in terms of
  Schedule 4
• Designated Employees
• Blacks (African, Indian Coloured) or
• Females or
• Persons with a disability and who are
• Citizens of South Africa by birth or descent or
• Naturalised citizens before 1994
• Exclusions
• SA National Defence Force, Secret Service
  National Intelligence
• Workplace for reporting purposes
• workplace" means the place or places where the
  employees of an employer work. If an employer
  carries on or conducts two or more operations
  that are independent of one another by reason of
  their size, function, or organization, the place
  or places where employees in connection with each
  other's independent operation, constitute the
  workplace for that operation.
• Non-permanent workers refer to those workers who
  are employed to work for less than 24 hours per
  month, or those workers engaged to work for not
  more than 3 continuous months

15
Duties of Designated Employers

• Prepare and implement an employment equity plan
• Report on progress made in implementing plan
• Consult and attempt to reach consensus on the
  conduct of the staff analysis, preparation and
  implementation of the equal opportunity plan and
  the report to submitted to DoL
• Consult with trade unions, workplace forums and
  representatives of registered union
• Disclose relevant information that will allow
  effective consultation
• Conduct an analysis of its employment practices,
  policies and procedures
• Analyse and identify employment barriers
• Analysis must include a profile of the workforce
  within each occupational category and level and
  under-representation must be identified

16
Affirmative Action

• Affirmative action measures are measures designed
  to ensure that qualified persons from designated
  groups have equal employment opportunities and
  are equitably represented in all occupational
  categories and levels in the workforce.
• Affirmative Action measures must include
• Measures to identify and eliminate employment
  barriers
• Measures to identify and eliminate unfair
  discrimination, which adversely affect people
  from designated groups
• Measures designed to further diversity in the
  workplace based on dignity and respect of all
  people
• Making reasonable accommodation for people from
  designated groups in order to ensure that they
  enjoy equal opportunities "Reasonable
  accommodation is any modification or adjustment
  to a job or to the working environment that will
  enable a person from a designated group to
  participate or advance in employment
• Measures to ensure the equitable representation
  of suitably qualified people from designated
  groups in all occupational categories in the
  workforce
• Measures to retain and develop people from
  designated group
• The measures referred to include preferential
  treatment and numerical goals, but exclude quotas
  
• Compare
• Broad Based Black Economic Empowerment Act
  quotas / Scorecards

17
Employment Equity Plan

• A designated employer must prepare and implement
  an employment equity plan which will achieve
  reasonable progress towards employment equity in
  that employer's workforce.
• An employment equity plan must state--
• the objectives to be achieved for each year of
  the plan
• the affirmative action measures to be
  implemented
• where under representation of people from
  designated groups has been identified by the
  analysis, the numerical goals to achieve the
  equitable representation of suitably qualified
  people from designated groups within each
  occupational category and level in the workforce,
  the timetable within which this is to be
  achieved, and the strategies intended to achieve
  those goals
• the timetable for each year of the plan for the
  achievement of goals and objectives other than
  numerical goals
• the duration of the plan, which may not be
  shorter than one year or longer than five years
• the procedures that will be used to monitor and
  evaluate the implementation of the plan and
  whether reasonable progress is being made towards
  implementing employment equity
• the internal procedures to resolve any dispute
  about the interpretation or implementation of the
  plan
• the persons in the workforce, including senior
  managers, responsible for monitoring and
  implementing the plan

18
Employment Equity Plan Regulations

• May refer to the Codes of Good Practice
  Preparation, Implementation and Monitoring of
  Employment Equity Plans, and other relevant Codes
  when preparing the employment equity plan.
• Employment equity plan must be retained for
• three years after the expiry of the plan
• for two year after the expiry of the plan lt 150
  employees
• Employment equity plan must contain a description
  of the measures taken to eliminate unfair
  discrimination

19
Employment Equity Plan

• For purposes of this Act, a person may be
  suitably qualified for a job as a result of any
  one of, or any combination of that person's--
• formal qualifications
• prior learning
• relevant experience or
• capacity to acquire, within a reasonable time,
  the ability to do the job.
• When determining whether a person is suitably
  qualified for a job, an employer must--
• review all the factors and
• determine whether that person has the ability to
  do the job in terms of any one of, or any
  combination of those factors.
• An employer may not unfairly discriminate against
  a person solely on the grounds of that person's
  lack of relevant experience.
• Question
• Can one determine an employees capacity to
  acquire the ability to do the job without the use
  of psychometric testing?
• What are the implications on costs and resources?

20
Employment Equity Reports

• 1 October of each year or within 6 months of
  becoming designated employer 12 months for
  smaller employers - headcount or revenue based
• 150 or more employees yearly
• 50 149 employees every second year
• Scaled down Reports for 50 150 employees
• Electronic submissions
• Publish Reports on notice boards (as well as any
  compliance orders)

21
Reports EE Regulations

• Employers who submit consolidated reports must
  have individual employment equity (EE) plans and
  relevant information for each entity or workplace
  that have been included in the consolidated
  report.
• The consolidated report and the individual EE
  plans and relevant information must be made
  available at each entity or workplace.
• Workplace for reporting purposes
• workplace" means the place or places where the
  employees of an employer work. If an employer
  carries on or conducts two or more operations
  that are independent of one another by reason of
  their size, function, or organization, the place
  or places where employees in connection with each
  other's independent operation, constitute the
  workplace for that operation.

22
Income Differentials

• Every designated employer must submit EEA4 to
  the Employment Conditions of Commission
  containing the remuneration and benefits received
  in each occupational category and level of that
  employer's workforce.
• Where disproportionate income differentials are
  reflected in the statement a designated employer
  must take measures to progressively reduce such
  differentials
• The measures may include--
• collective bargaining
• compliance with sectoral determinations
• applying the norms and benchmarks set by the
  Employment Conditions Commission
• relevant measures contained in skills development
  legislation
• The Employment Conditions Commission must
  research and investigate norms and benchmarks for
  proportionate income differentials
• The Employment Conditions Commission may not
  disclose any information pertaining to individual
  employees or employers.
• Question
• Can the EE Commission comment on income
  differentials between job grades (e.g. junior and
  senior managers) or is it restricted to
  differentials based on race, disability or sex?
• Is Form EEA4 of any value at all with the wide
  range of job grades within each occupational
  level or category?
• Other than obvious discriminatory differences in
  remuneration based on race and gender, what
  impact will trying to legislate remuneration
  levels have on skill retention, sourcing of and
  paying for scare skills?

23
Income Differentials

• Golden Arrow Bus Services v Louw and another
  C37/97 Labour Court
• Coloured applicants (buyers) paid less than white
  male counterpart (warehouse manager) - on the
  basis of racial characteristics and contrary to
  the doctrine of equal pay for work of equal value
  
• Applicants represents "Our case will be that
  Golden Arrow inherited racial discrimination in
  the past and that they have done nothing about it
  to date. Their responsibility starts and their
  failure and their unfair labour practice and
  their unfair discrimination may well be no more
  than not correcting an historical, inherited
  racial discrimination situation
• Pay differentials may result from
• Collective bargaining processes
• Shortage of candidates for one job and to the
  need to attract them by higher salaries can
  objectively justify that pay differential
• Historical discriminatory practices
• The performance, experience, skills and potential
  of the various incumbents
• The employer's judgement as to the position's
  relative importance and value to the
  organization. A position that is regarded as
  particularly critical to the well-being of the
  organisation would often attract a pay premium
  with the view of maintaining a competitive
  advantage in retaining valued employees
• Court refers to Peromnes Job Grading System, JE
  Manager and Pay Scales
• Court found that
• the size of the differential in pay scales is
  well within what could be expected as are the
  result of normal organizational and market forces
  
• the applicant has not succeeded in demonstrating
  that the two jobs, on an objective evaluation,
  are jobs of equal value
• Consider
• The opportunity for pay disputes remains
• Employers are advised to eliminate
  disproportionate pay discrepancies on race or sex
  grounds
• Focus should be on equal pay for equal work
  regardless of race or sex equal in this context
  not be so disproportionate as to leave the view
  that the difference is solely due to race or sex
  discriminatory practices

24
Numerical Profiles EE Regulations

• Director General may conduct a review to
  determine the extent to which an employer is
  complying with the Act.
• The review shall be conducted using a system that
  includes a Numerical Analysis Model.
• This model shall be used as a filtering tool to
  assess the degree to which the various designated
  groups (i.e. Blacks, women and people with
  disabilities) are represented at each
  occupational level in an employer's workplace. In
  addition to Blacks, women and people with
  disabilities, African representation is included
  as a fourth variable for assessment in an
  employer's workplace.
• DG shall assess and rank each designated group to
  address their under representation by taking
  their National and Provincial Economically Active
  Population (EAP) into consideration

25
Codes of Good Practice

• Preparation of Employment Equity Plans
• Implementation of EE in HR
• Sexual Harassment
• HIV/AIDS Technical Assistance Guidelines
• Disability Technical Assistance Guidelines
• Pregnancy

26
The Role of the EE Manager

• Page 17 - 27

27
Assigning a Senior Manager(s)

• Every designated employer must--
• assign one or more senior managers to take
  responsibility for monitoring and implementing an
  employment equity plan
• provide the managers with the authority and means
  to perform their functions and
• take reasonable steps to ensure that the managers
  perform their functions.
• The assignment of responsibility to a manager
  does not relieve the designated employer of any
  duty imposed by this Act or any other law.
• Duty to keep records - An employer must establish
  and, for the prescribed period, maintain records
  in respect of its workforce, its employment
  equity plan and any other records relevant to its
  compliance with this Act

28
Assigning Senior Manager Regulations

• Assigned senior manager(s) for employment equity
  must be
• permanent, report directly to the Chief Executive
  Officer on employment equity matters.
• 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.
• Ensuring compliance
• Appointment letter for EE Manager
• Performance contract with EE outcomes
• Must have authority to have influence

29
Communication Awareness

• Page 27 29
• Developing a Communications Plan / Strategy
• Legal Duty to Inform
• Communication Methods

30
Consultation

• A designated employer must take reasonable steps
  to consult and attempt to reach agreement on
• an analysis, of its employment policies,
  practices, procedures and the working
  environment, in order to identify employment
  barriers which adversely affect people from
  designated groups
• Workforce profile in order to determine the
  degree of under representation of people from
  designated groups in various occupational
  categories and levels
• Employment Equity Report (EEA2 and EEA4)
• Employer must disclose to the consulting parties
  all relevant information that will allow those
  parties to consult effectively
• Must consult with representative trade union and
  employees who are representative of workforce
• Question
• Disclosure of salaries for purposes of consulting
  on EEA4?

31
Consultation EE Regulations

• 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 all occupational categories and
  levels and both designated and non-designated
  groups.
• 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.
• Ensuring compliance
• Establish EE Forum - constitution
• Representatives from Trade Unions and workforce
• Regular minuted meetings retain agendas and
  minutes of all meetings (see DOL Audit
  Requirements)
• Inform employees of Act, EE and
  Anti-Discrimination measures etc retain
  attendance registers of training sessions
• Use DOL training videos / DVDs and PPT slides
  for training purposes
• Post minutes of EE meetings on notice boards
• Document and file all records
• Include EE training in Workplace Skills Plans
• Establish communication strategy
• Extend training to include diversity, disability
  awareness, HIV/Aids, harassment (sexual, racial,
  prohibited grounds)

32
Consultation

• Page 30 - 35
• Consultation ? consensus or negotiation
• Consultation is not synonymous with consensus.
• The outcome of consultation should not be
  predetermined.
• Effective consultation will not always lead to
  agreement.
• Consultation Forum
• Terms of reference
• Constitution
• Nomination and selection of representatives
• Read sections 4.4 4.7
• Ensuring Compliance
• Have a clearly formulated constitution
• Retain minutes, agendas attendance registers
• Document viewpoints raised by representative
  parties (demonstrates that consultation taking
  place)

33
Analysis

• A designated employer must collect information
  and conduct an analysis of its employment
  policies, practices, procedures and the working
  environment, in order to identify employment
  barriers which adversely affect people from
  designated groups.
• An analysis must include a profile of the
  designated employer's workforce within each
  occupational category and level in order to
  determine the degree of under representation of
  people from designated groups in various
  occupational categories and levels in that
  employer's workforce.

34
Analysis EE Regulations

• When a designated employer collects information
  about individual employees for the purpose of
  compiling a workforce profile to determine the
  degree to which employees from designated groups
  might be underrepresented, the employer must
  request each employee in the workforce to
• complete a declaration using the EEA 1 form
  (race, gender and disability)
• Employees must at any time be able to add
  information to the EEA 1 form.
• Where an employee refuses to complete the EEA1
  form or provides inaccurate information, the
  employer may establish the designation of an
  employee by using reliable historical and
  existing data.
• A designated employer must use section B of the
  EEA2 form to develop the workforce profile of
  employees as required by section 19(2) of the
  Act.
• When a designated employer conducts the analysis
  required by section 19(1) of the Act, the
  employer may refer to
• Annexure 1, demographic data
• Annexure 2, definitions of occupational levels
  and
• Annexure 3, definitions of occupational
  categories.
• A designated employer must refer to the Code of
  Good Practice Preparation, Implementation and
  Monitoring of Employment Equity Plans as a guide
  when collecting information and conducting the
  analysis required by section 19 of the Act.
• The analysis must involve reviewing all policies,
  procedures, practices and the work environment in
  order to eliminate unfair discrimination and
  promote employment equity in the workplace,
  including when commencing employment, during
  employment and ending employment.
• Ensuring Compliance
• Retain records of completed EEA1 forms
• Compile workforce profiles
• Conduct an employment systems review of all
  policies and retain records of the analysis

35
Analysis

• Page 35
• What are employment practices?
• Conduct employment systems review (pp 35 49)
• Use Code on Implementation of EE in HR

36
Workforce Analysis

• Being strategic demands that you look at the big
  picture - that you forecast and attempt to
  prepare for the future by taking into account as
  many variables as possible. Without forecasting
  fluctuations needed in the demand, supply, and
  movement of talent, a.k.a. workforce planning,
  HR will continue to get blindsided by "surprise"
  internal and external events
• "Workforce planning is the most critical human
  resource management challenge today.... To make
  workforce planning succeed, HR professionals will
  be called upon to master new roles as leaders,
  business partners, and change agents. "

37
Typical Problems

• Historical numerical targets not based on actual
  empirical workforce requirements
• EE Numerical target setting did not take into
  account concerns around scarce skills / talent
  shortages
• Skills development initiatives not aligned to
  workforce planning requirements
• EE Act (enforced through legal compliance)
  subordinate to requirements of BBBEE (which has
  economic incentives for compliance)
• Lack of executive decision makers on EE Forums
  frustration amongst representatives
• EE goals not linked to strategic business goals
• EE motivated as a compliance issue not economic /
  talent necessity
• Poor collection of workforce data (beyond looking
  at occupational levels and categories)

38
Workforce Planning - Analysis

• Key Questions
• Approach
• How will you achieve your goals? (how will you
  reduce the gap?)
• Challenges
• What are the strengths, weaknesses, opportunities
  and threats you must understand in order to
  achieve your vision
• Benefits
• What is your value proposition to business?
• Metrics
• How will you know if you are successful?

Supply Analysis focuses on identifying
organizational competencies, analyzing staff
demographics, and identifying employment trends.
Competencies? Labour Market? Org.
movement Business Activity Projected
Needs? Impact of Changes? Technology?
WFP IMPLEMENTATION ROADMAP
Demand Analysis deals with measures of future
activities and workloads, and describing the
competency set needed by the workforce of the
future.
39
Workforce Planning Data

• Beyond simplistic EE data
• Workforce Data
• Age to retirement
• Age profiles
• Skills / educational profiles
• Available skills in market
• Labour turnover within each grade / skill
• Classify jobs by profession
• Competitor analysis
• Economic environment

40
Exercise

• Engineering profession
• How will the following indicators impact on
  ability to find skills?
• How will these indicators impact on EE targets?
• What plans and measures are needed to be
  implemented now to meet transformation
  requirements in 10 years time?
• Were numerical targets for these sectors
  realistically based on external data?

41
Sectoral growth rates, 2001-2006
Sector Average annual growth rate ()
Coal mining 0.1
Gold and uranium mining 0.7
Other mining 0.4
Food manufacturing 0.3
Beverage and tobacco products -1.8 (Legislation?, Affordability?)
Textiles -0.3 (Cheap Imports?)
Clothing -2.6 (Cheap Imports?)
Leather and footwear -1.7 (Cheap Imports?)
Wood and wood products 4.4
Furniture -0.1
Paper and paper products 1.1
Printing and publishing 0.3
Chemicals 0.7
Rubber plastic products 2.4
Non-metallic mineral products -0.6
Basic metals 1.9
Fabricated metal products 0
Machinery 0.4
Electrical machinery 2.9
Motor manufacturing 4.2
Other manufacturing 0.6
Electricity, gas and water 3
Building 0.6
Civil engineering 0.6
Retail and wholesale trade 1.7
Motor trade 1.5
Accommodation and catering 3
Transport 5.2
Communications 7
Banking 5.4
Insurance 5.4
Business services 5.4
Government 1.2
Local government 1.2
Community social services 1.2
Recreational and cultural services 1.2
42
Talent / Skill Requirements
  Number in 2001 Average annual change in number of positions p.a. 2001-2006 New positions arising, 2001-2006 Replacement demand 2001-2006
Total formal sector employment 1,009,063.00 1.18 66,395.00 193,609.00
Professionals and technicians 728,795.00 1.55 55,097.00 148,479.00
-          Engineers and engineering technicians/ technologists 61,956.00 3.5 5,227.00 11,089.00
-          Computer-related professions 75,841.00 2.5 9,900.00 15,600.00
-          Medical practitioners/physicians 34,370.00 1.2 2,191.00 5,207.00
-          Nurses 155,469.00 1.2 9,934.00 35,461.00
-          Teachers 354,469.00 1.4 26,417.00 73,077.00
-          Lecturers 37,237.00 0.5 914.00 6,651.00
-          Natural scientists (chemists, physicists, geologists, biologists) 4,647.00 1.6 388.00 795.00
-          Natural science technologists 4,729.00 0.5 126.00 599.00
Managers 280,298.00 0.8 11,298.00 45,130.00

• HSRC 2008 HRD Review

43
(No Transcript)
44
(No Transcript)
45
(No Transcript)
46
(No Transcript)
47
Age (Life Expectancy) Profiles
48
Discussion

• Should EE not be motivated from economic
  necessity, not purely from compliance
  perspective?
• If Executives were exposed to economic and skills
  data, would they not change their attitude to
  importance of AA measures (attention to issues,
  budget allocation, elevate to strategic level)
• Can you demonstrate in your organisation how AA
  measures (internal promotions development) has
  reduced vacancy rates / cost of employees
  (internal recruitment costs lower than market
  costs of replacement)?

49
Employment Equity Plan
Planning phase assignment of responsibility and accountability to one or more senior managers a communication, awareness and training programme consultation with relevant stakeholders an analysis of existing employment policies, procedures, and practices an analysis of the existing workforce profile an analysis of relevant demographic information such as that contained in form EEA 8, and an appropriate benchmarking exercise, such as comparing the organisations workforce profile with those of other organisations within the same sector, or the development of other meaningful comparisons.
Development phase in consultation with the identified role players, should include objectives set corrective measures formulated time frames established the plan drawn up resources identified and allocated for the implementation of the plan, and the plan communicated.
Implementation and monitoring an ongoing process and should continue to include components of the earlier phases, such as consultation, communication, awareness and training. This phase should include implementation monitoring and evaluating progress reviewing the plan, and reporting on progress.
50
Forms

• Attendance Register for Employment Equity Meeting
• Agenda for Employment Equity Meeting
• Sample Constitution
• Pro Forma Affirmative Procurement Policy
• Nomination Forms
• Reporting Tools

51
Labour Court Judgments

• Harmse v City of Cape Town (Labour Court case no.
  CC966/2002, dated 9 May 2003
• Failure to plead direct or indirect
  discrimination could not deprive him of his
  action
• Section 20 of the EEA requires employers to adopt
  plans to achieve reasonable progress towards
  employment equity in other words, to advance
  suitably qualified designated employees where
  possible. The EEA specifically provides that for
  those purposes whether a person is suitably
  qualified must be determined not only on the
  basis of formal qualifications and relevant
  experience, but also on that persons capacity
  to acquire, within a reasonable time, the ability
  to do the job.
• If an employer adopts an affirmative action plan,
  its employees acquire a legitimate expectation
  that affirmative action will be applied.
• If an employer fails to promote equality through
  affirmative action measures, that employer
  violates the rights of designated employees not
  to be unfairly discriminated against. To this
  extent, affirmative action may provide a sword
  for employees.
• The court added, however, that whether a
  particular employee is entitled to benefit from
  affirmative action is another question. It is a
  very complex and important question, to which Mr
  Harmses action will pave the way towards part of
  an answer.

52

• BUT Dudley v City of Cape Town (2004) 25 ILJ305
  2004 4 BLLR 413 (LC) in which it was held that
  the EEA does not afford designated employees a
  right to preferential treatment which can be
  enforced by individuals.
• See also PSDA obo Karriem v SAPS another
  Labour Court C435/04
• When applying affirmative action, employers
  should consider a variety of factors, of which
  past disadvantage is only one. Retention of skill
  and the efficient operation, particularly of
  State organs, clearly also require
  consideration.

53

• Where two applicants compete for a position, the
  mere fact that the one is white and the other
  coloured, and the white person gets appointed,
  can certainly not amount to differentiation, nor
  per se, to discrimination. Clearly, what is
  required is evidence of conduct which constitutes
  a difference in, of or between the two parties
  being made. Or if it is shown that no objective
  justification existed for the appointment of the
  one rather than the other, that may amount to
  differentiation. The application of some
  irrelevant criterion in the appointment process,
  or treating the one person differently in a way
  which impairs that persons dignity as a human
  being will be indicative of differentiation.
• In the present case, the SAPS, through a process
  of assessment of the applications for a
  particular post via, first, a sub-panel and then
  a head-panel, scored the applicants under
  specific headings and in the end appointed a
  particular person (who happens to be a white
  female) rather than another employee (who happens
  to be a coloured female). This does not, in my
  view, in and by itself, amount to
  differentiation.
• And further
• The mere fact that the one is a white, and the
  other a coloured person, does not elevate it to a
  case of differentiation or discrimination on the
  ground of race. More is required. Only once a
  party has shown these two elements being present
  does the enquiry move to the determination
  whether it was unfair of the party to so
  differentiate on the grounds of race.
• PSDA obo Karriem v SAPS another Labour Court
  C435/04 23 February 2006

54
Failure to Comply a political decision

• In Director General of the Department of Labour v
  Jingua Garments (Pty) Ltd (unreported 5 December
  2006), acting Judge Sangoni noted that the EEA
  was key to implementing affirmative action
  measures. The company had 280 employees in its
  employ, and had failed to comply with its
  statutory obligations as a designated employer. A
  labour inspector had issued a compliance order
  after the company breached undertakings to comply
  with its obligations under the Act. The
  compliance order was also ignored.
• The company admitted that it had not taken
  reasonable steps to consult with its employees as
  required, that it had not conduct the required
  analysis of employment policies, that it had not
  prepared nor implemented an employment equity
  plan, within the required period, and that it had
  failed to submit successive plans.
• The court had to consider an apparent
  contradiction in the Act. Section 37 stipulates
  the maximum fines that the court could impose for
  failing to comply with a compliance order. In the
  schedule to the Act, there is a reference to
  fines for the contraventions of specific sections
  of the Act. The issue therefore was whether the
  Act contemplated that the maximum fine of R500
  000 could be imposed in respect of each section
  that was contravened, or whether the maximum
  related to the contravention of the compliance
  order, irrespective of the number of breaches of
  particular section to which it referred.
  Fortunately for the company, the Court adopted
  the latter interpretation.
• The Court noted that relevant factors for the
  purposes of determining an appropriate fine
  include the nature of the contravention, the
  period for which the contravention endures, the
  reason for not complying with the Act, attempts
  to comply, and the maximum fine prescribed. In
  this case, the management of the company was
  Chinese, with a lack of expertise regarding local
  legal requirements, it had engaged the services
  of an employer federation that was equally
  ignorant of the applicable requirements. While
  the company was no longer trading, it had engaged
  the services of another consultant to assist it
  in future to comply with the Act. The company was
  fined R200 000, half of which was suspended for 3
  years on condition that the company as not found
  guilty of any contravention of the EEA within
  that period.

55
Thekiso v IBM South Africa JS 415/05)

• IBM lost a contract to provide services to a
  mining house, and had to restructure as a
  consequence. In the course of the restructuring,
  many posts became redundant, but a new post, that
  of asset management, was created. Ms Thekiso
  claimed that she had been unfairly selected for
  retrenchment since the company had failed to
  consider section 15 of the Employment Equity Act
  when appointing a white male to the new post.
  This argument was raised during the course of the
  Labour Court proceedings in which the fairness of
  the retrenchment was challenged more generally,
  and it was common cause that the issue of
  affirmative action has not been raised during the
  consultations that precede the retrenchment.
• The argument raised was that the EEA required
  every designated employer to implement
  affirmative action measures for people from
  designated groups. Affirmative action
  measurements are designed to ensure that suitably
  qualified people from designated groups have
  equal employment opportunities, and are equitably
  represented in the workplace. They include
  measures to retain and develop people from
  designated groups. On this basis, the company was
  obliged to retain the applicant in preference to
  any white male, provided she was suitably
  qualified for the position. (She argued that she
  was. The relevant definition refers to the
  ability to acquire, within a reasonable time, the
  ability to do the job).
• The Court rejected the argument, and in effect,
  held that the EEA, insofar as it obliges
  designated employers to implement affirmative
  action measures, could be used as a shield, but
  not a sword. In other words, there is no right to
  rely directly on the EEA to claim unfair
  selection in the context of a retrenchment. The
  Court went further and said - "Not only does
  the EEA not provide any mechanism for pursuing
  such a complaint that a retrenchment constitutes
  a breach of the employer's affirmative action
  obligations, but, in my view, on a proper
  construction thereof, there is no legal
  obligation on an employer when taking any
  particular appointment or dismissal decision to
  give preference to suitably qualified employees
  from a designated group. In my view, section
  15(2)(d)(ii) does not impose an obligation on an
  employer contemplating retrenchments to retain
  black employees in preference to white employees
  it believes better meets its needs."
• The Court was careful to note that affirmative
  action considerations had played no role in the
  consultation process. The Court made no decision
  on whether the company would have been entitled
  to take race and gender into account when
  selecting employees to be dismissed, nor what the
  position would have been had Ms Thekiso raised
  the issue of preference on the basis of race and
  gender during the selection process. There is
  also the possibility, of course, that these
  issues may be regulated in the employer's
  policies and procedures, giving rise to a
  contractual claim rather than a claim under the
  EEA. Had this claim not been raised so late in
  the day, the case might have taken on a very
  different complexion.

56
Du Preez v Minister of Justice Constitutional
Development 2006 8 BLLR 767

• This case, brought under the promotion of
  Equality and Prevention of Unfair Discrimination
  Act, 2000, concerned the appointment of
  Magistrates. The claim was brought under the
  Equality Act since Magistrates, being judicial
  officers independent of the public service, are
  subject only to the Constitution. They are not
  employees as defined by the Employment Equity
  Act, but the Courts observations apply equally
  to workplaces in respect of which the EEA
  applies.
• The Applicant, a white male applied for a
  position and did not make the shortlist. He
  initiated proceedings under the Equality Act
  complaining that he had been discriminated
  against. After a comprehensive review of the
  evidence, the Court found that the shortlisting
  formula raised an insurmountable obstacle for the
  Applicant, and established an absolute barrier to
  his appointment to the post of Regional Court
  Magistrate. The formula effectively gave
  automatic and absolute preference to black
  female applicants who met the minimum job
  requirements irrespective of how they compared
  with other applicants. No regard was had to how
  the formula affected other applicants nor did it
  address the specific needs of the post, beyond
  the minimum qualifications for the job. In
  setting aside the criteria and ordering the
  Department to re-advertise the positions, the
  Court concluded the following The Respondents,
  not being subject to the Employment Equity Act,
  are not obliged to prepare and implement an
  employment equity plan as contemplated in that
  Act. Nevertheless, one would expect it of them to
  set an example and have some formal and
  comprehensive affirmative action plan, which in
  an open democratic society would be available
  to all interested parties.
• The judgments confirm a trend in terms of which
  the Courts will readily supervise the application
  of affirmative action plans, and set aside
  appointments that are made in the name of
  affirmative action where plans are either
  non-existent or inconsistent with the purpose
  underlying the EEA.

57
Diversity special interests or the power of
lobby groups

• Key Constitutional Court judgments
• National Coalition for Gay and Lesbian Equality
  and another v minister of justice and others
• This case dealt with the offence of sodomy in the
  common-law (that general body of law that isn't
  contained in statutes but is based on judicial
  decisions and custom). The crux of this matter
  was that the law prohibited sodomy between two
  consenting adult men.
• The Constitutional Court had to confirm an order
  that the existence of this common-law offence was
  unconstitutional and invalid - as were references
  to sodomy in three statutes.
• The Court found that the existence of these
  offences violated the right to equality.
• National Coalition for Gay and Lesbian Equality
  and others v minister of home affairs and others
• The High Court had declared section 25(5) of the
  Aliens Control Act of 1991 unconstitutional
  because it omitted to give persons who were
  partners in permanent same-sex life partnerships
  the benefits it extended to "spouses".
• The case, referred to the Constitutional Court
  for confirmation, considered whether it was
  unconstitutional to allow the immigration of the
  foreign spouses of permanent South African
  residents but not to afford the same benefits to
  South African gays and lesbians in permanent
  same-sex life partnerships with foreigners.
• The Court held Section 25(5) to be
  unconstitutional and decided that to read words
  into the statute would be better than to strike
  down the problematic section. The words "or
  partner in a permanent same-sex life partnership"
  needed to be added.
• Satchwell v the president of the Republic of
  South Africa
• A High Court order had declared sections 8 and 9
  of the Judges' Remuneration and Conditions of
  Services Act unconstitutional to the extent that
  they afforded benefits to the spouses of judges
  but not to their same-sex life partners.
• Du Toit and another v minister of welfare and
  others
• Two partners in a longstanding lesbian
  relationship had brought an application in the
  Pretoria Children's Court jointly to adopt two
  children. But, because the Child Care Act
  confined joint adoption to married couples,
  custody and guardianship rights could be granted
  to one partner only.
• J and B v the director-general of home affairs
  and others
• This case concerned provisions of the Children's
  Status Act of 1987, which defined the status of
  children conceived by artificial insemination.
• Section 5 of the act provided that, where a
  married couple used the gamete or gametes of
  another person to conceive a child through
  artificial insemination, that child be considered
  the legitimate child of the married couple. The
  second applicant gave birth to twins, a boy and a
  girl, as a result of in vitro fertilisation,
  using the gamete of the first applicant and the
  sperm of an anonymous male donor
• Civil Union Act No. 17 of 2006

58
Disability

• The long title of the EEA includes as one of the
  purposes of the Act the giving of effect to the
  obligations of the Republic as a member of the
  International Labour Organisation. Article 3 of
  Convention No 111 provides, inter alia
• Any distinction, exclusion or preference in
  respect of a particular job based on the inherent
  requirements thereof shall not be deemed to be
  discrimination.
• The term inherent has been interpreted as
  existing in something, a permanent attribute or
  quality forming an element, especially an
  essential element, of something, essential - Du
  Toit et al, Labour Relations Law (4th Ed
  Butterworths) at 569.The ILO has identified the
  following as examples of unacceptable
  requirements
• the evaluation of an individuals competence for a
  task based on stereotypes of the group to which
  the employee belongs
• requirements based on the preferences of
  employees and clients
• requirements that tasks should be performed in a
  particular way when there are other reasonable
  ways of doing so and
• qualificatio