Employment Equity

Sue KrantzSue KrantzWorkplace Performance Technologies (Pty) Ltd Workplace Performance Technologies (Pty) Ltd

trading as Workinfo.comtrading as Workinfo.com

Overall Aim Of Workshop

Assist elected Equity-Skill Committee Members to formulate, and agree roles and responsibilities to support the company’s 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

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

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

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’

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

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.

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?1. 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).

2. If the differentiation amounts to ‘discrimination’ does it amount to unfair discrimination?

3. Can the unfair discrimination be justified?

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)

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.

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.

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 legislator’s 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?

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

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

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

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

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

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 < 150

employees• Employment equity plan must contain a

description of the measures taken to eliminate unfair discrimination

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 employee’s capacity to acquire the ability to do the job without the use of psychometric testing?

– What are the implications on costs and resources?

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)

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.

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?

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 • Applicant’s 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]

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

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

The Role of the EE Manager

• Page 17 - 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

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

Communication & Awareness

• Page 27 – 29

• Developing a Communications Plan / Strategy

• Legal Duty to Inform

• Communication Methods

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?

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 / DVD’s 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)

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)

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.

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

Analysis

• Page 35

• What are employment practices?

• Conduct employment systems review (pp 35 – 49)

• Use Code on Implementation of EE in HR

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. "

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)

GAP ?

Workforce Planning - AnalysisSupply Projection:• Workforce Profile • Business Outlook• Staffing• Company Strategies• Competencies

Current StateBase-Line

Future StateVision

Demand Forecast:• Projected Workforce• Future workloads• Competencies Needed• Technology

Competencies?Labour Market?Org. movementBusiness ActivityProjected Needs?Impact of Changes?Technology?

WFP

IM

PLEM

EN

TA

TIO

N R

OA

DM

AP

WFP

IM

PLEM

EN

TA

TIO

N R

OA

DM

AP 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

• BenefitsWhat is your value proposition to business?

• MetricsHow will you know if you are successful?

Demand Analysis deals with measures of future activities and workloads, and describing the competency set needed by the workforce of the future.

Strategy

Supply Analysis focuses on identifying organizational competencies, analyzing staff demographics, and identifying employment trends.

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

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?

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

Talent / Skill Requirements

HSRC 2008 HRD Review

  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

Age (Life Expectancy) Profiles

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)?

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 organisation’s 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.

Forms

• Attendance Register for Employment Equity Meeting

• Agenda for Employment Equity Meeting

• Sample Constitution

• Pro Forma Affirmative Procurement Policy

• Nomination Forms

• Reporting Tools

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 person’s “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 Harmse’s action will pave the way towards part of an answer.

• 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.’

• 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 person’s 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

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.

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.

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.

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]

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 – qualifications based on light or heavy work which amount to a veiled distinction between the sexes that might impede the

promotion of women.

• The respondent avers that it is an inherent requirement of the job of a firefighter not to expose fellow employees, the general public or oneself to real risk of harm to their or ones own safety. Further, in order to fulfil that inherent requirement, due to the dangerous circumstances in which firefighters on active duty may be exposed, they must not be at risk of having a severe hypoglycaemic episode while on duty. This, as we have seen, according to Sparks, Carstens and Woolley, could arise where the insulin dependent diabetic has a hypoglycaemic episode in circumstances where he cannot or does not take immediate steps to prevent the development of a severe episode, because, for instance, he has no glucose or carbohydrates to take or he has glucose or carbohydrates to take but cannot or fails take them. Thus a Type 1 diabetic may forget to insert or replace glucose sachets in his tunic, he can become separated from his tunic, the glucose sachet could burst or be otherwise destroyed or contaminated. Likewise the firefighter may have glucose or carbohydrates to take but cannot take them because his mouth is covered with a breathing apparatus or he cannot access the sachet because his arms are trapped or injured, or he cannot get his glove off and there is nobody on hand to assist, or he is using both hands. He could have the glucose or carbohydrates to take but not take them because he is distracted by other events on the fireground or in the extreme heat and fatigue action he confuses the warning signs of the hypo with general fatigue.

• The respondents employment policy of refusing to employ insulin dependent diabetics as firefighters is declared to be unfair discrimination.

• The blanket ban is guilty of overreach. Accordingly, the ban and its specific application to the first applicant constitute unfair discrimination.

• IMATU v CITY OF CAPE TOWN (LC) 18 July 2005

Family Responsibilities• COWA and others v Petroleum Oil and Gas Co-Operative of South Africa (Pillay J C437/2003• As noted above, this case concerned a challenge to conditions of employment, established by a collective

agreement that provided more favourable terms for employee with family responsibilities. This was an unintended consequence of a conversion to a total guaranteed remuneration package when existing benefits, some of which were calculated to take into account the number of each employee’s dependants, were incorporated into the package.

• In considering the claim for discrimination on the grounds of family responsibility, the Court reviewed the essential content of the right. The Court noted that the family is an institution that in international terms is highly valued, and made reference to the UN Declaration of Human Rights and the European Social Charter and the South African Constitution, noting the status accorded to the family in those instruments.

• The Court referred particularly to ILO Convention 156 on Workers with Family Responsibilities from which the definition of “family responsibilities” in the Employment Equity Act is drawn. This definition reads –

• “The responsibility of employees in relation to their spouse or partner, their dependent children or other members of their immediate family who need their care or support or approach.”

• The substantive right to equality established by the Constitution and the Employment Equity Act had the result that special measures are applied to workers with family responsibilities to adjust for the hardships of having those responsibilities. Without affirmation of the special status, there is no right to equality amongst the workforce.

• In the present case, the Company was sharing the responsibility for addressing the special needs of workers with family responsibly by providing additional remuneration for employees with dependents. The Court concluded, “the Second Respondent pays more to employees with dependents, not as a reward for performance. Nor is it an accolade for special achievement. It is a legal and moral response to the social needs of a vulnerable group of employees.”

• The Court dismissed the application and ordered that the Applicant pay 30% of the Company’s costs.