The Employment Equity Amendment draft Bill includes several significant proposed amendments to the Employment Equity Act.
Notable amongst the proposed amendments are the following:
1. The deletion from the definition of “designated employer” of paragraph (b) which provides for an employer who employs fewer than 50 employees; but has a total annual turnover that is equal to or above the turnover of a small business as set out in schedule 4 to the Act.
This amendment will affect employers who employ fewer than 50 employees (regardless of their turnover). They will no longer fall within the definition of “designated employer” and will not be required to comply with Chapter III of the Act relating to affirmative action. This proposed amendment will be welcomed by smaller employers and seeks to eliminate the regulatory burden on these employers.
2. The definition is to be amended in line with the description in the UN Convention on the Rights of Persons living with Disabilities, 2007. It reads that people with disabilities, “includes people who have a long-term or recurring physical, mental, intellectual or sensory impairment which, in the interaction with various barriers, may substantially limit their prospects of entry into, or advancement in, employment and ‘persons living with disabilities’ has that corresponding meaning”.
3. The removal of the requirement for certification of psychological testing and other similar assessments of an employee by the Health Professions Council of South Africa or any other body authorised by law including Medical Dr’s. This proposed amendment relieves the Council of its certification obligation in recognition of its lack of capacity and procedures to discharge this obligation.
4. The most notable amongst the proposed amendments is the introduction of a provision which empowers the Minister of Employment and Labour to determine sectoral numerical targets. In terms of the proposal, the Minister may identify national economic sectors. And, after consulting the National Minimum Wage Commission to ensure the equitable representation of suitably qualified people from the designated groups at all occupational levels, set numerical targets for any national economic sector. The targets may differ across occupational levels, sub-sectors, regions or based on other relevant factors as determined by the Minister. To date, designated employers when choosing numerical goals frequently have regard to the demographic profile of the economically active population (EAP Targets). The amendment if effected, will require that an employer, in setting its numerical goals, comply with any sector target which the Minister may have determined, and which applies to the employer.
5. Where a workplace has a representative trade union representing its employees, the employer must consult with the trade union only and not its employees or their nominated representatives, concerning among other things the preparation and implementation of its employment equity report.
6. The scope of a labour inspector’s power has been extended to request and obtain a written undertaking from a designated employer requiring it to prepare an employment equity plan.
7. Where an employer makes an offer to agree with any organ of state to provide services or supplies, i.e. state contracts, tenders and requests a certificate from the Minister that it has complied with its obligations under the Act, the Minister, in terms of the proposed amendment, may only issue such certificate if, among other things the Minister is satisfied that the employer has complied with any numerical targets applicable to the employer, or if it has failed to do so, the employer has a reasonable ground to justify such non-compliance. Within the previous three years, there has been no finding by the CCMA or a court that the employer breached the prohibition on unfair discrimination in terms of the Act or failed to pay the minimum wage.
The Bill indicates a robust attempt on the part of the Government to address the slow pace of transformation within many South African workplaces.
10 steps to preparing and implementing an Employment Equity plan
Step 1 – Assigning responsibility:
EE managers need the necessary authority and/or mandate and time off from other duties to effectively perform their duties.
Step 2 – Communication, awareness, and training:
All employees should be informed of the content and application of the EE Act and understand the importance of their participation in the process.
Step 3 – Consultation:
A consultative forum should be established, or an existing forum used if applicable. Interaction at all levels is required to establish if there are any areas of discrimination, and surface barriers to improving the representation of designated groups.
Step 4 – Analysis:
Firstly, assess all employment policies, practices, procedures, and the working environment to identify barriers that may:
▪ contribute to the lack of affirmation of diversity in the workplace
▪ adversely affect designated groups; and
▪ identify practices or factors that positively promote employment equity and diversity in the workplace.
Secondly, do a workplace profile to determine the extent of under-representation of employees from the designated groups in the different occupational categories and levels of the employer’s workforce.
At the end of Phase 1, you should have a clear EE plan. The next Phase is the implementation of your EE plan.
PHASE 2: IMPLEMENTATION
Step 5 – Affirmative Action measures and objectives:
Formulate and develop Affirmative Action measures to address the employment policies, practices, and working conditions that were identified in Step 4 as having an adverse effect on the employment and advancement of members of designated groups.
Step 6 – Timeframes:
The duration of a plan should be between one and five years. Employers should decide on the duration of their plans given their circumstances and the timeframe in which they can make meaningful progress.
Step 7 – Resources:
There should be adequate resources including people / budgets / training / information sharing
Step 8 – Communicate the plan:
▪ who is responsible for the implementation of the plan?
▪ where information regarding the plan can be obtained
▪ the objectives and duration of the plan
▪ dispute resolution procedures; and
▪ roles and responsibilities.
Step 9 – Monitoring and evaluating the plan by employers to:
▪ keep records of the plan
▪ implement mechanisms to monitor and evaluate the implementation of the plan
▪ evaluate progress at structured and regular intervals
▪ report on progress to the consultative forum
▪ review and revise the plan through the consultation process.
Step 10 – Reporting:
▪ 150 or more employees: report annually to the DoL
▪ Less than 150 employees: report bi-annually to the DoL
Adson will assist your business in being compliant. Our equity experts will develop and implement an Employment Equity Plan and submission of required reports for your business.