Affirmative Action and Employment Equity

Editor’s Note: we know some employers prefer to do their own employment equity reporting. To this end we have designed a DIY pack to help employers which includes checklists, notifications, nomination forms and communication plans and examples.

In terms of Employment Equity Act, 55 of 1998, issued in terms of Section 25(1) – Duties of a Designated Employer: Section 13

  1. A designated employer must implement affirmative action measures for designated groups to achieve employment equity.
  2. In order to implement affirmative action measures, a designated employer must:
    • Consult with employees; and
    • Conduct an analysis

Affirmative Action measures: Section 15 states that:

  1. Affirmative action measures are measures intended to ensure that suitably qualified employees from designated groups have equal employment opportunity and are equitably represented in all occupational categories and levels of the workforce.
  2. Such measures must include:
    • Identification and elimination of barriers with an adverse impact on designated groups
    • Measures that promote diversity
    • Making reasonable accommodation for people from designated groups
    • Retention, development and training of designated groups (including skills development)
    • Preferential treatment and numerical goals to ensure equitable representation. This excludes quotas.

Consultation: Sections 16 and 17 states:

A designated employer must take reasonable steps to consult with representatives of employees reflecting the diverse interests of the workforce. The analysis undertaken should include employees from across all occupational categories and levels of the employer’s workforce (from designated groups and employees who are not from designated groups).

Analysis: Section 19

A designated employer must conduct an analysis of employment policies, practices, procedures, and the working environment in order to identify employment barriers that adversely affect members of designated groups.

Department of Labour – Employment Equity Inspection Targets

Editor: We have been stressing for a while the emphasis placed on employment equity audits to raise funds for the Department of Labour. This is supported by the statistics below and our own anecdotal experience from clients.

The Department of Labour have indicated the following planned inspection targets for 2017 / 2018.

 Dol Reviews Annual Target Q1 Q2 Q3 Q4
1. EE DG Reviews (EEA) 192 38 58 38 58
2. EE Inspections (EEA) 900 180 270 180 270
3. Vulnerable workers (BCEA) 35,496 7,099 10,649 7,099 10,649
4. High Risk Sectors (OHS) 5,520 1,104 1,656 1,104 1,656
5. Employer Audits (UIA) Procedural 2,160 432 648 432 648
6. UI Payroll Audits 218 43 65 43 65

Employment Equity Filing Deadline

Editor’s Note: We really encourage employers to get organised to submit their employment equity reports on time. As mentioned in previous editions this is a real area of focus for government to levy fines and penalise employers.

Submit Employment Equity Reports by 15 January 2018.

Failure to comply could result in a fine of up to R1.5m.

Employment Equity is a legislative requirement for all companies deemed to be designated employers. A designated employer means:

  • A person who employs 50 or more employees
  • A person who employs fewer than 50 employees but has a total turnover that is equal to or above the applicable annual turnover of a small business in terms of Schedule 4 of this Act.

If you have more than 50 employees your organisation is deemed to be a designated employer and is therefore required to comply with the Employment Equity Act.

As designated employers, you are required to comply with the following in terms of the Employment Equity Act: 

  1. Submit Employment Equity Reports and Income Differential Statement, manually by 1 October, or submit electronically by 15 January 2018
  2. Assign a Senior Manager
  3. Establish a Consultative Forum
  4. Prepare an Employment Equity Plan

Employment Equity Filing Deadline

Editor: We really encourage employers to get organised to submit their employment equity reports on time. As mentioned in previous editions this is a real area of focus for government to levy fines and penalise employers.

Submit Employment Equity Reports by 15 January 2017
Failure to comply could result in a fine of up to R1.5m.

Employment Equity is a legislative requirement for all companies deemed to be designated employers. A designated employer means:

  • A person who employs 50 or more employees.
  • A person who employs fewer than 50 employees but has a total turnover that is equal to or above the applicable annual turnover of a small business in terms of Schedule 4 of this Act.

If you have more than 50 employees your organisation is deemed to be a designated employer and is therefore required to comply with the Employment Equity Act.

As designated employers, you are required to comply with the following in terms of the Employment Equity Act:

  1. Submit Employment Equity Reports and Income Differential statement, manually by 1 October, or submit electronically by 15 January 2017
  2. Assign a Senior Manager
  3. Establish a Consultative Forum
  4. Prepare an Employment Equity Plan

Employment Equity Filing Deadline

Editor: We really encourage employers to get organised to submit their employment equity reports on time. As mentioned in previous editions this is a real area of focus for government to levy fines and penalise employers.

Submit Employment Equity Reports by 15 January 2017
Failure to comply could result in a fine of up to R1.5m.

Employment Equity is a legislative requirement for all companies deemed to be designated employers. A designated employer means: a.

  • A person who employs 50 or more employees.
  • A person who employs fewer than 50 employees but has a total turnover that is equal to or above the applicable annual turnover of a small business in terms of Schedule 4 of this Act.

If you have more than 50 employees your organisation is deemed to be a designated employer and is therefore required to comply with the Employment Equity Act.

As designated employers, you are required to comply with the following in terms of the Employment Equity Act:

  1. Submit Employment Equity Reports and Income Differential statement, manually by 1 October, or submit electronically by 15 January 2017
  2. Assign a Senior Manager
  3. Establish a Consultative Forum
  4. Prepare an Employment Equity Plan

Employment Equity Workshops

An introduction to the Employment Equity Act, Reports and Committee Responsibilities

Half Day Workshop with Dennis Cogzell

The workshop will be led by Dennis Cogzell, an HR Consultant, registered as a Chartered HR Professional with the South African Board for People Practitioners (SABPP). He has more than 35 years’ experience within the Human Resources field, and has provided consulting and training services to numerous small and large companies.

At the end of the workshop, learners will be able to:

  • Understand the various requirements of the Employment Equity Act in respect of discrimination and affirmative action.
  • Understand the requirements for completing and submitting the Employment Equity Report.
  • Have the ability to review policies, practices and working conditions with the view of identifying barriers to employment equity and affirmative action.
  • Understand the Amendments to the Employment Equity Act.
  • Understand the workings of an Employment Equity Committee.

Date: 7 November 2016
Time: 08h30 to 12h30
Venue: 6 Kikuyu Road, Sunninghill, Johannesburg
Cost: R995.00

To book, please contact Harusha on 031 564 1155 or [email protected].

BOOKINGS ARE NOT CONFIRMED UNTIL BOOKING CONFIRMATION HAS BEEN RECEIVED.

Please Note:

  • All costs exclude VAT.
  • All workshops can be presented in house at your premises.

Employment Equity Half Day Workshop with Nicky Hardwick

Workshop: An introduction to the Employment Equity Act, Reports and Committee Responsibilities

The workshop will be led by Nicky Hardwick a consultant with more than 10 years experience in the field of Employment Equity. Nicky specialises in assisting designated organisations to become legally compliant in terms of the Employment Equity Act. Nicky has provided consulting and training services to numerous small and large companies, NGOs and Government.

At the end of the workshop, learners will be able to:

  • Understand the various requirements of the Employment Equity Act in respect of discrimination and affirmative action.
  • Understand the requirements for completing and submitting the Employment Equity Report.
  • Have the ability to review policies, practices and working conditions with the view of identifying barriers to employment equity and affirmative action.
  • Understand the Amendments to the Employment Equity Act.
  • Understand the workings of an Employment Equity Committee.

Date: 6 October 2016
Time: 08h30 to 12h30
Venue: 163 Umhlanga Rocks Drive, Durban North
Cost: R795.00

To book, please contact Harusha on 031 564 1155 or [email protected].

BOOKINGS ARE NOT CONFIRMED UNTIL BOOKING CONFIRMATION HAS BEEN RECEIVED.

Please Note:

  • All costs exclude VAT.
  • All workshops can be presented in house at your premises.

Workplace equity policies and employment equity legislation

Recently, an interesting article by Professor Hugo Pienaar of Cliffe Decker Hofmeyr was posted on their website dealing with the recent ruling by the constitutional Court on Solidarity and Others v Department of Correctional Services and Others (CCT 78/15) [2016] ZACC.

Without going into too much detail about the case, the ruling indicated that the employer should take into consideration both regional and national demographic targets when setting equity targets for its workforce in its employment equity plan. In the circumstances, the employer had not appointed a number of coloured applicants in the Western Cape because they did not meet their national targets despite coloured candidates being the majority applicants (and demographic representatives) in this region.

Further, on appeal, the Constitutional Court addressed the Barnard Principle (South African Police Service v Solidarity obo Barnard [2014] ZACC 23 which states that an employer may refuse to appoint a candidate who falls within a category of persons that is already adequately represented at a certain occupational level. In this case, the court was required to consider whether the Barnard principle’s application is limited to white people only and whether this principle may also be applied in respect of gender. The court ruled that the Barnard principle is not only limited to white people but rather to candidates from all racial groups as well as both men and women.

So what’s the point you ask?

It appears critical for employers to be very careful before turning down a candidate’s appointment because it doesn’t fit in with their targets in their Employment Equity Plan.

While the legislation and court rulings clearly allow for this, it is not cut and dried and the individual and regional circumstances need to be considered.

Employment Equity Reporting and Plans – Are you compliant?

  • Fines for non-compliance are 2% of turnover OR R1.5million.
  • We are receiving calls from clients regularly where they have been inspected, are non-compliant and face substantial fines.
  • Contact Nicky Hardwick to ensure compliance and for advice.

The Department of Labour are actively conducting audits on all designated employers and have also established a task team to assist them in these audits.

The task team is specifically checking on three aspects of compliance, namely the Employment Equity Plan (EEA13), Employment Equity Report (EEA2) and Income Differential Statement (EEA4).

Part of the element of compliance in this regard is that you must ensure that the EEA2 and EEA13 are displayed in your workplace in an area where staff have access.

Our experience of this task team is that they do not issue employers with a notice of undertaking but rather these employers are being taken to court for failing to comply.

The fine for non-compliance in these areas is 2% of turnover or R1,5 million, whichever is the GREATEST.

Employment Equity – Records

The Employment Equity Act (EEA) places a legal obligation on “designated employers” to retain records of its workforce, its employment equity plan and other records relevant to its compliance with the EEA.

It is advisable to keep records of all interviews conducted with job applicants. In terms of the EEA, a job applicant may challenge a recruitment decision on the basis of unfair discrimination within six months of the recruitment decision – a period for which the employer should retain the relevant records.

Other employee-related legislation includes the Skills Development Act and theOccupational Health and Safety Act, both of which also prescribe those records employers are obliged to retain.

Employers bound by such legislation are urged to familiarise themselves with the provisions of these Acts to avoid penalties.

You could retain all documentation in files and archive them or discuss your needs with [email protected] and investigate keeping all your records on the internet linked to each employee – always available from anywhere at any time in our online HR/Payroll system – eTorQue.