A PRACTICAL GUIDE TO EMPLOYMENT EQUITY

A practical understanding of employment equity is key to be able to apply it to your workplace. The purpose of Employment Equity is to encourage fair and equitable representation and promote previously disadvantaged groups in the workplace. These are Black, Female and Disabled persons.

The purpose of employment equity is three-fold:

  • To remove unfair discrimination
  • To promote equity in the workplace
  • To remove the barriers of the past

The Employment Equity Act No. 55 of 1998 governs the way in which we conduct opportunity in the workplace and aims to ensure that fair and equal treatment of employees takes place. The purpose of the Act is to promote equal opportunity and fair treatment through the elimination of unfair discrimination that may have been present, either in Practice, Procedure or Policy and aims to implement affirmative action measures to address the disadvantages in employment.

The purpose of the Act is to also redress the wrongs of apartheid which was a political, economic and social regime that manipulated and controlled the labour market in such a way that privileged the white minority whilst disadvantaging and discriminating the black majority.

What are some examples of unfair discrimination which the law prevents?

  • It is illegal for Black and White workers doing the same job to get paid different wages.
  • It is illegal for women not to get the same benefits as men, or for a woman who is doing the same job as a man, not to get the same pay.
  • People with disabilities canʼt be refused a job interview just because they have a disability.
  • Somebody who is HIV positive canʼt be refused a job, or training opportunities, just because he/she is HIV positive

To do this one would need a plan on how to get them there, either through training (Skills Development), promotion or new recruits. This is where the employment Equity Plan comes in.

Employment Equity Regulations

The regulations of Employment Equity provide detail to the legal framework of the Employment Equity Act (EEA). The Act deals with the elimination of unfair discrimination, affirmative action, the duties of employers in relation to affirmative action in the workplace and enforcing the provisions of the Act.

The regulations set out what is expected of a designated employer.

Designated employer: An employer who employers more than 50 employees

OR

Employs fewer than 50 employees but has a total annual turnover equal to, or above the applicable turnover of a small business in a specific sector

OR

Is a municipality or Organ of State or is bound by a collective agreement in terms of the Labour Relations Act.

Designated Groups: Black people (African, Coloured and Indian), women and disabled people who are citizens of South Africa.

Note that Non-citizens are to be recorded separately but counted as White for B-BBEE purposes.

Duties of a Designated Employer

Consult with its employees

1.      Appointment of an Employment Equity Manager or senior employee in the Company who will oversee Employment Equity is implemented correctly in the organization and who will work with the committee. (on a letterhead and signed by the CEO.)

2.      A designated employer must take reasonable steps to consult with its employees and reach agreement on matters outlined in the analysis, plan and report

3.      The employees should nominate their representatives to join the Employment Equity Committee

4.      The Committee should meet quarterly to do an analysis and identify barriers, prepare the plan, monitor the effectiveness of affirmative action measures and the reaching of the numeric goals and targets.

5.      Nomination forms should be retained as proof of the workforce voting

6.      Meetings must be documented, and attendance registers signed

Collect information and conduct an analysis

1.      When a designated employer collects information contemplated in section 19 of the Act, the employer must request each employee in the workforce to complete a declaration using the EEA1 form.

2.       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. People with disabilities have the right not to declare their disability, unless it is in line with the inherent requirements of the job.

3.       A designated employer with its Committee must conduct an analysis as required by section 19 of the Act by reviewing its workforce profile and employment policies, practices, procedures and the working environment in order to identify employment barriers which adversely affect people from designated groups from being equitably represented across all occupational levels. The outcome of the analysis should be recorded using the EEA12 in these regulations.

4.      When a designated employer conducts the analysis as required by section 19 of the Act, the employer may refer to –

(a)     EEA8, a guide on the applicable national and regional economically active population (EAP); and

(b)     EEA9, which contains a description of occupational levels. It is vitally important to ensure all employees are correctly classified into Occupational levels. A designated employer must refer to the EEA9 in the regulations for guidance on how to differentiate between the various occupational levels

Prepare and implement an Employment Equity Plan

1.      A designated employer must refer to the relevant Codes of Good Practice when preparing an Employment Equity Plan contemplated in section 20 of the Act.

2.      The Employment Equity Plan must contain, at a minimum, all the elements contained in the EEA13 template of these regulations and be for a period of 3 to 5 years.

3.      A designated employer must retain their Employment Equity Plan for a period of five years after the expiry of the plan.

4.      Before the end of the term of the current Plan, a designated employer must prepare a subsequent employment equity Plan.

Report (EEA2 and EEA4)

1.      A designated employer must submit a report (EEA2) and income differentials (EEA4) to the Director-General in terms of section 21 of the Act annually on the first working day of October or by 15 January of the following year only in the case of electronic reporting using the EEA2 form.

2.      Employment equity reports must be addressed to the Employment Equity Registry, Department of Labour, Private Bag X117, Pretoria, 0001 or submitted electronically using the online reporting system available on the departmental website, www.labour.gov.za. The employers reference number must be used to log in and obtain a password.

3.      An employer who becomes designated on or after the first working day of April, but before the first working day of October, must only submit its first report on the first working day of October of the following year.

4.      A designated employer that is a holding company with more than one registered entity may choose to submit a consolidated report.

5.      A designated employer who chooses to submit a consolidated report contemplated in sub-regulation 10(4) must have a consolidated Employment Equity Plan which is supported by individual Employment Equity Plans for each of the registered entities included in the consolidated report.

6.      The method of reporting contemplated in sub-regulation 10(4) should remain consistent for the duration of the plan.

7.      An employer must inform the Department in writing immediately of any changes to their trade name, designation status, contact details or any other major changes, including mergers, acquisitions and insolvencies.

8.      A designated employer who is unable to report must notify the Director-General in writing before the last working day of August in the same year giving reasons for its inability to do so using the EEA14 form.

9.      A designated employer must retain a copy of the report for a period of five years after it has been submitted to the Director-General.

10.   In terms of Section 22, every designated employer must publish a summary of a report required by Section 21 reflecting progress in their annual financial report by using the EEA10 annexure for guidance.

11.   An employment equity report (EEA2), except for the Income Differential Statement (EEA4), submitted to the Department of Labour is a public document and must be assessible for all employees to view. A copy may be requested by the public by completing and submitting the EEA11 form to the Department of Labour, Employment Equity Registry.

Inform

1.      A Summary of the Act in (EEA 3) of these Regulations must be displayed at the workplace.

2.      The EEA2 after being completed and submitted must be accessible to employees. (Not the EE!4 which has confidential salary information)

Enforcement Mechanisms

1.      A labour inspector may request and obtain a written undertaking using the EEA5 form

2.      A labour Inspector may issue a compliance order to a designated employer using the EEA6 form.

3.      The Director-General may require designated employers who have been identified for the DG Review process to fully and accurately complete the DG Review Assessment form (EEA7) and furnish the required documents

FORMS AND ANNEXURES

EEA1:  Employee declaration in terms of Section 19(1) of the Act

EEA2:  Report to the Director-General in terms of Section 21 of the Act

EEA3:  Summary of the Act in terms of Section 25(1) of the Act

EEA4:  Statement of income differentials in terms of Section 27 of the Act

EEA5:  Request for an undertaking in terms of Section 36 of the Act

EEA6:  Compliance order in terms of Section 37(1) of the Act

EEA7:  DG Review Assessment Form in terms of Section 43 of the Act

EEA8:  Demographic Data in terms of Section 42 of the Act (EAP for Analysis)

EEA9:  Occupational Levels in terms of Section 21 of the Act

EEA10: Summary of the employment equity progress report in terms of Section 22 of the Act

EEA11: Request for employer’s employment equity report in terms of Section 21(5) of the Act

EEA12: Template for reporting on analysis conducted in terms of Section 19 of the Act

EEA 13: Template for Employment Equity Plan in terms of Section 20 of the Act

EEA 14: Director-General Notification in terms of Section 21(4A) of the Act

 

The Roles and Responsibilities of the Employment Equity Committee

A Company should take reasonable steps to consult with its workforce. It does this by using its Employment Equity Manager and its Committee, as it is not reasonably practicable to expect the CEO, who is running the Company to be available to consult with the entire workforce.

  1. The Employees must nominate representatives to represent their occupational level on the committee.
  2. Representatives selected must agree to be on the committee and be able to add value.
  3. The committee must have employees from designated groups and non-designated groups
  4. The committee must have at least one senior employee representing senior Management who has the authority to make decisions.

The main role of the committee is to conduct an analysis of the workplace, prepare and implement an employment equity plan, assist with the drafting of the report by reporting on those trained, promoted and recruited. Very often the Employment Equity Committee is often also the Skills Development or Training Committee. As you will be able to see by now skills development goes hand in hand with employment equity.

Apart from the above, the Committee should meet quarterly to ensure that the organisation is meeting their Employment Equity objectives (its numeric goals and targets) by ensuring the effective implementation of its plan.

Online reporting Of the EE report & Regulated EE Templates (EEA12 & EEA13) Forms.

Before being able to analyse, all your employees must have completed an EEA1 form. This is their declaration of their race, gender and disability if there is one. Too often employees are categorised incorrectly. Once this is done their positions must be categorized (EEA9) and an accurate workforce profile drafted. Only then will the committee be able to see where there is under and over representation on a certain level, race or gender.

The EEA2 or Report will be drafted annually and submitted online between 1st October and 15th January of each year. It will record your Workforce Profile, Workforce Profile with disabilities, recruitments, terminations, training interventions and promotions for a 12 month period. It will also ask for your numeric goals and targets.

It is vital to keep records of all the above to be able to accurately report. Note that the workforce profile is a snapshot of a certain day only and not of the duration of 12 months.

The EEA 4 document is a record of the annual income for each occupational level by race and gender. This is required to be submitted annually and online together with the EEA2. The sum total of it should add up to your total payroll. Where there are discrepancies in income between employees of different race and gender on the same occupational category a Company will be required to give reasons. (Equal Pay for Work of Equal Value).

Once the EEA2 and EEA4 is submitted online a copy will be e-mailed to you for your records together with a Proof of Submission letter. All should be printed and filed.

The EEA1 (employee declaration), EEA12 (template for analysis) and EEA13 (guideline for the Plan) documents do not have to be submitted, these are to be completed and retained at your organizations to refer to and file and for Inspections.

Note: The EAP percentage is to be taken from the STATS SA schedule and recorded on your analysis. Your actual figures per occupational level must be recorded underneath. The percentage of over and under representation must be noted and highlighted and reasons provided below with plans to address this.

EEA13

The EEA13 template makes it very easy for the Committee to put the Plan together. Before drafting the Plan the Analysis must be done in order to see where over and under representation is in the Company. Only then can a Plan be drafted on how to correct imbalances and over what period of time can this be achieved. The plan would be targeted at the recruitment and promotion of designated groups to senior positions within the Company. The Plan must also be realistic. Your annual reports must show progress in achieving the Plan otherwise this will be scrutinized by the Department of Labour.

  1. The objectives to be achieved for each year of the plan should meet the SMART principle as follows:-
  • Specific
  • Measurable
  • Attainable
  • Relevant; and
  • Time bound
  1. Barriers and Affirmative Action Measures must be aligned with those indicated in the audit analysis and meet the following requirements:
  • Include time-frames in order to track progress in the implementation of these AA Measures;
  • These time-frames should be within the duration of the EE Plan (no “on-going” permitted) and
  • Include responsible persons to monitor the implementation of these AA Measures (not names of people but designations).
  1. The workforce profile, numerical goals and targets with exact time-frames according to the duration of the plan which must be accompanied by strategies to achieve them as informed by the findings in the audit analysis
  2. The duration of the plan which may not be shorter than 1 year or longer than 5 years (it must have a start and end date in terms of day, month and year).

Section 20 indicates that the duration of the Employment Equity Plan may not be shorter than one year or longer than five years. The duration of the plan must have a specific start and end date.

Managing People with Disabilities for Employment Equity Principles

Widespread ignorance, fear and stereotypes cause people with disabilities to be unfairly discriminated against in society and in employment. As a result, people with disabilities experience high unemployment levels and, in the workplace, often remain in low status jobs and earn lower than average remuneration.

Unfair disability discrimination is perpetuated in many ways. There are many unfounded assumptions about the abilities and performance of job applicants and employees with disabilities. Employers set criteria for selection that exclude disabled people. Occasionally, workplaces are inaccessible and training is inappropriate for people with disabilities or not available at all.

People with disabilities can contribute their skills and abilities to the economy and society. The cost of claims on public social security and occupational benefit schemes can be reduced if employees with disabilities are retained at work.

The main reason to disclose a disability is to request a reasonable accommodation. A reasonable accommodation can allow an employee with a disability to do the job.

Defining persons with disabilities under the Act

Only people who satisfy all the criteria in the definition:
(i) long-term or recurring;
(ii) having a physical or mental impairment;
(iii) which substantially limits,

are considered as persons with disabilities.

Long-term or recurring

(i) Long-term means the impairment has lasted or is likely to persist for at least twelve months. A short-term or temporary illness or injury is not an impairment which gives rise to a disability.

(ii) A recurring impairment is one that is likely to happen again and to be substantially limiting (see below). It includes a constant underlying condition, even if its effects on a person fluctuate.

(iii) Progressive conditions are those that are likely to develop or change or recur. People living with progressive conditions or illnesses are considered as people with disabilities once the impairment starts to be substantially limiting. Progressive or recurring conditions which have no overt symptoms or which do not substantially limit a person are not disabilities.

Impairment

(i) An impairment may be physical or mental.

(ii) ‘Physical’ impairment means a partial or total loss of a bodily function or part of the body. It includes sensory impairments such as being deaf, hearing impaired, or visually impaired and any combination of physical or mental impairments.

(iii) ‘Mental’ impairment means a clinically recognised condition or illness that affects a person’s thought processes, judgment or emotions.

Substantially limiting

(i) An impairment is substantially limiting if, in the absence of reasonable accommodation by the employer, a person would be either totally unable to do a job or would be significantly limited in doing the job.

(ii) Some impairments are so easily controlled, corrected or lessened, that they have no limiting effects. For example, a person who wears spectacles or contact lenses does not have a disability unless even with spectacles or contact lenses the person’s vision is substantially impaired.

(iii) An assessment whether the effects of impairment are substantially limiting must consider if medical treatment or other devices would control or correct the impairment so that its adverse effects are prevented or removed.

(iv) For reasons of public policy certain conditions or impairments may not be considered disabilities.