Employment Equity by Derek Hendrikz

Employment
Equity
derek
hendrikz

Copyright © 2015
Derek Hendrikz Consulting
www.derekhendrikz.com

understanding
the effects
of workplace
prejudice &
discrimination

excluding

The evil of
discrimination is not
located in
discrimination itself,
but in the purpose of
discrimination

We are
Creatures
of
Judgement
We Project
and we
Split

Category boundaries are the
categorisations that we place
people in and the assumptions that
we attach to such categories.

• Place all assumptions regarding a specific
category on ‘ice’.
• Find similarities.
• First seek to understand before making
judgment.

Fear
Anxiety
Power
Discrimination

Sexism:
Discrimination based on gender.
Racism:
Discrimination based on race. The belief that
people of different races have different qualities
and abilities, and that some races are inherently
superior or inferior.
Nepotism:
Favouritism shown by somebody in power to
relatives or friends, often by appointing or
promoting them to good positions.

Chauvinism:
An excessive or prejudiced loyalty to a particular gender,
group, status, professional class or cause.
Heterosexism:
Discrimination against homosexual men or woman.
Ethnocentrism:
A belief in or assumption of the superiority of own social or
cultural group.
Ageism:
Discrimination against people of particular age groups,
often in employment or promotions.

The antidote to discriminatory
practice is a strong anti-
prejudice value system.

Understanding the
Employment Equity Act

Designated Groups:
Designated groups are…
 Non-white (Africans, Coloureds and Indians),
 women and
 people with disabilities.

Purpose of the Act:
To achieve equity in the workplace by:
 Promoting equal opportunity
 Fair treatment in employment
 By eliminating unfair discrimination
 Implementing affirmative action measures
 To redress disadvantages in employment
 To ensure equitable representation

Designated Employer:
Those who employ 50 or more staff members or
whose annual turnover is more than that set
down in Schedule 4 of the Act (the figures vary
according to the type of industry).

Prohibition of Unfair Discrimination:
No person may unfairly discriminate, directly or
indirectly…
 Against an employee
 In any employment policy or practice

Includes:
 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.

Not unfair discrimination to:
 Take affirmative action measures consistent with the
purpose of the act
 Distinguish, exclude or prefer any person on the
basis of an inherent requirement of a job.

Duties of designated employers:
 Implement affirmative action measures
 Consult with employees
 Conduct analysis
 Prepare an employment equity plan
 Report to the director general

Difference between Employment Equity,
Affirmative Action and Black Empowerment

Affirmative Action Measures:
Measures designed to ensure that
 Suitably qualified people from designated groups
 Have equal employment opportunities
 Are equally represented in all occupational categories
and levels

Affirmative Action Measures:
Must include:
 Measures to identify employment barriers
 Measured designed for further diversity
 Making reasonable accommodation for people
to ensure equal opportunities

Codes of Good Practice:
 Further interpretation and definition of BBBEE
and the interpretation and definition of different
categories of black empowerment entities
 Qualification criteria for preferential purposes
for procurement and other economic activities
 Indicators to measure BBBEE

 Weighting to be attached to BBBEE indicators
 Guidelines for stakeholders in the relevant
sectors of the economy to draw up
transformation charters for their sector
 Any other matter necessary to achieve the
objectives

The overall purpose of the codes of good practice is:
 To provide certainty with respect to BBBEE recognition and
measurement
 To ensure that BBBEE initiatives may be implemented in such a
way that economic substance takes precedence over form
 That there exists just comparability between the BBBEE statuses of
different entities
 That competition with respect to BBBEE contribution levels takes
place

Achieving Employment Equity:
 Employers must draw up an employment equity
plan,
 setting out the steps they intend taking to
achieve employment equity, over the next one
to five years.

Achieving Employment Equity:
 they need to analyse their workforce profile as
well as their employment practices and policies.
 they must consult with unions and employees to
get consensus around it.
 Employers need to report their equity plans
regularly to the Department of Labour, which
then monitors implementation.

Employment Equity Plan:
 Objectives to be achieved for each year of
the plan
 Affirmative action measures
 Numerical goals to achieve equitable
representation

 Timetable for each year of the plan
 Duration of the plan
 Procedures to be used to monitor
implementation of the plan

 Internal procedures to resolve disputes
 Persons in the workforce, including senior
managers, responsible for implementing
and monitoring the plan

Monitoring:
Employees or trade union representative may bring
and alleged contravention to the attention of:
 Another employee
 An employer
 A trade union
 A workplace forum
 Labor inspector
 The director general
 The commission

Powers of the labor inspector:
 Has the authority to enter
 Question
 Inspect

Undertaking to comply:
Must be a written undertaking from the designated
employer

Compliance Order:
Is issued when the employer has:
 Refused to give a written undertaking
 Failed to comply with a written undertaking

Powers of the Labor Court:
May make appropriate orders including:
 To make a compliance order an order of the
labor court
 Condone the late filing of any document
 Direct the CCMA to conduct investigations

Powers of the Labor Court:
 Award compensation
 Award damages
 Order compliance
 Impose a fine
 Review performance
 Confirm, appeal or vary orders made by director
general
 Deal with any matter

Protection of employee rights:
 No person may discriminate
 No person may favour or promise to favour

Liability of employers:
 Must immediately bring problems under the attention
of the employee
 Must consult with employees
 If employer fails to take steps, he/she is deemed to
contravening the provision
 Is not liable for the conduct of an employee

Affirmative Action
Affirmative action is a temporary intervention
 aimed at rectifying the historical injustices
 in terms of occupational advancement and social,
political and economic upliftment

Affirmative Action
A business strategy
 aimed at transforming the social and economic
environment
 short-term, occupational advancement strategies
 based on preferences in hiring and promoting
people from
 previously disadvantaged groups

Affirmative Action
The objective is for people from
 previously disadvantaged groups to obtain access
to job opportunities
 based on their potential to be able to do the job.

Affirmative Action
 Enforced through legislation
 Affirmative action is not seen as a permanent
tool, but as a
 Remedial, short-term strategy to encourage the
upward occupational
 Mobility of people from previously
disadvantaged groups.

Black Empowerment:
Refers to interventions and strategies
 based on the belief that there is nothing more
unequal than the equal treatment of unequal's
 assumption is that black people do not have the
resources to succeed in business

Black Empowerment:
Could include programmes such as
 literacy training
 quality education
 accelerated on-the-job training
 mentorship and other related programmes

Black Empowerment:
Black advancement includes an improved quality of
life, that is,
 a good salary, decent housing, educational
assistance
 community development and direct intervention
by companies regarding political issues that
affect their employees' lives

BBBEE:
A form of Economic Empowerment
 initiated by the South African government
 in response to criticism against Narrow Based
Empowerment instituted in the country during
2003/2004

BBBEE:
 Narrow Based Black Economic Empowerment
led to the enrichment of a few black individuals
 the goal of Broad Based Empowerment is to
distribute wealth across as broad a spectrum of
South African society as possible

Employment Equity and Diversity:
The aim of the Employment Equity Act is to
achieve
 equity in the workplace through the elimination
of unfair discrimination, as
 well as through the implementation of
affirmative action strategies

 employment equity also refers to the
transformation of the workplace to the point
where disparities between
 diverse employees are eliminated and all
employees have been brought to a level where
they can compete for job opportunities on an
equal basis

 Employment Equity Act distinguishes between
unfair discrimination and fair discrimination
 Fair discrimination allows for targeted
affirmative action strategies and actions to
redress the disadvantages
 that designated groups in the workforce
experienced in the past

 To achieve this, the organisational environment
should be receptive to all new entrants at all
levels in the organisation
 Unfair discrimination is regarded as
discrimination in employment
 practices on the basis of a person's affiliation to a
variety of groupings,
 including those relating to race, age and gender

 Every employer in South Africa is required to
draw up and maintain an employment equity
plan which includes
 an analysis of current employment practices to
eliminate possible discriminatory practices
 setting objectives and establishing a timetable
with realistic human resource targets to ensure a
representative workforce

Direct vs. Indirect Empowerment
 Direct empowerment focuses only on
ownership and management.
 Indirect empowerment is broader and aimed at
distributing wealth across a broad spectrum of
South African society .

BBBEE Point System:
Direct Empowerment:
1. Equity ownership: 20%
2. Management: 10%
HR Empowerment:
3. Employment Equity: 15%
4. Skills Development: 15%
Indirect Empowerment:
3. Preferential Procurement: 20%
4. Enterprise Development: 15%
5. Corporate Social Investment: 5%

BEE
CONTRIBUTION
LEVEL
SCORECARD
POINTS
PROCUREMENT
RECOGNITION
1 100 or above 135%
2 85 to 99.99 125%
3 75 to 84.99 110%
4 65 to 74.99 100%
5 55 to 64.99 80%
6 45 to 54.99 60%
7 40 to 44.99 50%
8 30 to 39.99 10%
Non Compliant < 30 0%

Thresholds
• EME increased from R5 million to R10 million
• QSE: R5 million -R35 million to R10 million - R50
million
• Large entities: R50 million and above

BEE vs. BBBEE
 Narrow Based Black Economic Empowerment (BEE)
led to the enrichment of a few black (Black African,
Coloured or Indian) individuals, the goal of Broad
Based Empowerment (BBBEE) is to distribute wealth
across as broad a spectrum of South African society as
possible.
 Broad Based Black Economic Empowerment
(BBBEE) is a form of Black Economic
Empowerment initiated by the South African
government in response to criticism against Narrow
Based Empowerment instituted in the country during
2003/2004.

BBBEE Codes of Good Practice
Supplements the BBBEE strategy by providing
clear guidelines on the measurement and
application of BBBEE

BBBEE Verification Agencies
The Association of BEE Verification Agencies
(ABVA) is an independent national Membership
Organisation established to lead the black
economic empowerment (B-BBEE) verification
industry as it takes up a vital role in the
transformation of the South African economy.

EE Committees can be formed by…
 Nominating members;
 Democratic elections (per occupational level);
and
 Voluntary nominations.

As far as possible, committees must
represent all occupational levels…
 Top management;
 Senior management;
 Middle management;
 Professionally qualified and experienced specialists;
 Skilled technical and academically qualified workers,
junior management, supervisors, foremen and
superintendents;
 Semi-skilled and discretionary decision-making; and
 Unskilled and defined decision-making.

COMPOSITION AND
STRUCTURE OF THE EEC
 The Chairperson (Senior Manager)
 Employer representatives
 The trade union representatives or, employee
nominated representatives
 Representatives from designated groups
 Representatives from undesignated groups

Size of EE Committee…
 Depends on size and structure of your
organisation;
 Rule of thumb – between 5 and 12 members

Critical Success factors for a EEC
 Role Clarity
 Customised Constitution
 Effective Chairperson
 Involvement of senior executive
 Committee members who can drive the cause
 Effective communication methodology
 EE Committee development programme

CONSTITUTION OF THE EEC
 Establishment (Right of Existence)
 Vision
 Objectives
 Composition and Structure (Governance)
 Roles and Responsibilities
 Ground Rules and Conduct at EEC meetings
 Information closure
 Dispute Resolution
 Amendments to the EEC Constitution
 General Provisions

Primary duties of a EEC
 Analysis as dictated by the EE Act
 Enable processes which ensures that employees can
compete equally for opportunities in the workplace
 Ensure skills development
 Ensure participation and acceptance of AA measures
 Implement a mentorship process for disadvantaged
employees
 Monitor implementation of EE initiatives

THE FUNCTIONS OF EEC
 To develop and ensure implementation of an Employment Equity and
Affirmative Action Policy
 Undertake a statistical profile analysis of the organization
 Review/audit all Employment Policies, Practices and Procedures
 Develop an Employment Equity Plan
 To review and monitor departmental targets established for Employment
Equity purposes
 Monitor the applicability of the Employment Equity Policy
 Monitor recruitment and placement decisions
 Monitor the training of the Committee

Identifying Organizational
Non Compliance to EE

Codes of Good Practice
Minister may, on advice of the commission:
 Issue any code of good practice
 Change or replace any code of good practice
Any code of good practice, or change or
replacement must be published in the Gazette

Job Analysis and Descriptions -
A designated Employer must:
 Collect information and conduct analysis of employment
policies, practices, procedures and work environment
 This will identify employment barriers which adversely affect
people
 Analysis must include a profile of the workforce within each
occupational category and level
 This will determine the degree of underrepresentation of people

Recruitment and Selection:
An employer may not require an employee or a
person seeking employment-
 not to be a member of a trade union or
workplace forum;
 not to become a member of a trade union or
workplace, forum; or
 to give up membership of a trade union or
workplace forum;

Psychological Assessments:
This is prohibited unless the test or assessment
being used:
 Has been scientifically shown to be valid and
reliable
 Can be applied fairly to employees
 Is not biased against any employee or group

Remuneration:
Every designated employer must submit a
statement on remuneration and benefits received
in each occupational category and level
 Disproportionate income differentials
 Take measures to reduce differentials

Termination of Employment:
A contract of employment may be terminated on notice
of not less than
 one week, if the employee has been employed for six
months or less
 two weeks, if the employee has been employed for
more than six months but not more than one year
 four weeks, if the employee has been employed for one
year or more, or if a farm worker or domestic worker
has been employed for more than six months

Termination of Employment (cont):
 A collective agreement may shorten the four weeks
notice period to not less than two weeks.
 Notice must be given in writing except when it is given
by an illiterate employee
 The notice on termination of employment by an
employer in terms of the Act does not prevent the
employee challenging the fairness or lawfulness of the
dismissal in terms of the Labour Relations Act, 1995 or
any other law

Developing the EE Plan

EE Plan – Legal Requirements:
 Objectives to be achieved
 Affirmative action measures to be implemented
 Timetable for each year of the plan
 Duration of the plan

EE Plan – Legal Requirements (2):
 Procedures to be used to monitor
implementation of the plan
 Internal procedures to resolve disputes
 Persons in the workforce, including senior
managers, responsible for implementing and
monitoring the plan

Questions before starting with the
implementation Plan:
 What would you like to achieve regarding employment
equity?
 How will implementing this benefit you?
 What are the obstacles to achieving your goal?
 Do you and your team have the authority to implement this
learning? Is it within your power?
 What stops you in your personal capacity, from achieving
your goal?
 What resources do you have in achieving this goal?
 Is there a price to pay if you succeed in achieving this? If yes,
define.
 If there is a price to pay are you prepared to apply it?
 How will you know if you were successful?

SMART Objectives:
Specific,
Measurable,
Achievable,
Relevant, and
Time measured.

PHASES OF THE PLAN
Step 1
Assign responsibility
Step 2
Communication, awareness
and training
Step 3
Consultation
Step 4
Analysis
Preparation
Step 5
Affirmative Action
measures and objectives
Step 6
Time frames established
Step 7
Allocation of resources
Step 8
Plan communication
Implementation
Step 9
Monitor, evaluate, and
review
Step 10
Report
Monitoring

Phase 1:
Preparation

STEP 1: Assigning responsibility
• EE Managers should:
– Be permanent employees
– Report directly to the CEO
– Have key employment equity outcomes
• EE Managers need:
– The necessary authority or mandate
– An appropriate budget
– Time off from other duties and commitments
– Access to required resources
Phase 1: Preparation

STEP 2: Communication,
awareness and training
Positive outcomes such as:
– Diversity = Creativity
– Representing the customers who we serve
– Better utilisation of human resources
– A more diverse and productive workforce
– A workforce that reflects the relevant labour
market

Delivery methods could include:
– pamphlets
– newsletters
– workshops
– videos
– training sessions

Managers should:
– be informed of their obligations in terms of the
Act
– be offered training in diversity management and
related skills
– understand that discrimination can be direct,
indirect, or as a result of inaction or
victimisation

STEP 3: Consultation
• Start process as early as possible
– A consultative forum should be established or
an existing forum used if this is appropriate
• Who should be included?
– All stakeholders such as:
– Representative trade unions
– Management
– Shareholders
– Employees

• Proper consultation includes:
– the opportunity to meet and report back to
employees and management
– reasonable opportunity for employee
representatives to meet with the employer
– the request, receipt and consideration of
relevant information
– adequate time allowed for each of the above
steps.

• Relevant information include:
– the particular business environment and circumstances
of the employer
– the relevant economic sector or industry
– relevant local, regional, and national demographic
information about the economically active population
– the anticipated growth or reduction of the employer's
workforce
– the turnover of employees in the employer's workforce

• Relevant information include:
– the internal and external availability for appointment or
promotion of suitably qualified people from the
designated groups
– the degree of representation of designated employees in
each occupational category and level in the employer's
workforce
– employment policies and practices of the employer.

STEP 4: Analysis
Firstly, to assess all employment policies,
practices, procedures, and the working
environment in order to identify barriers that
may
– contribute to the under-representation or under-
utilisation of employees from the designated groups
– contribute to the lack of affirmation of diversity in the
workplace
– adversely affect designated groups
– to identify practices or factors that positively promote
employment equity and diversity in the workplace.

STEP 4: Analysis
What should be reviewed?
– all employment practices such as recruitment, selection,
pre-employment testing, and induction
– practices related to succession and experience planning,
and related promotions and transfers
– utilisation and job assignments
– current training and development methodologies and
strategies, and access to training
– remuneration structures and practices

STEP 4: Analysis
What should be reviewed?
– employee benefits arrangements
– disciplinary practices
– the number and nature of dismissals, voluntary
terminations and retrenchments
– corporate culture
– practices relating to the management of HIV/AIDS in
the workplace which could be discriminatory
– any other practices or conditions that are tabled by the
consultative forum.

STEP 4: Analysis
What to look for?
– Factors that adversely affect employees from
designated groups
– Subtle or indirect forms of discrimination and
stereotyping
– All practices should be checked to see if they
are fair and do not result in unfair
discrimination.

STEP 4: Analysis
Secondly, 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.

101
STEP 4: Analysis
How do you establish a workforce profile?
– By comparing the number of employees from
designated groups with relevant demographics.
– Sources of demographics information:
• Form EEA 8 of the Regulations
• Statistics South Africa
• HSRC
• Breakwater Monitor

STEP 4: Analysis
An employer can compare his workforce
profile:
– with those of organisations of a similar size
– with those of organisations within the same
sector or industry
– with those of organisations which are
structurally similar and whose activities are
spread over a similar geographic area

Phase 2:
Implementation

STEP 5: Affirmative Action
How to go about setting goals and objectives?
– a snapshot of their organisation profile and
valuable information on their organisation's
profile in respect of race, gender and disability
– an understanding of which practices or working
conditions adversely affect members of
designated groups
– which practices and working conditions are
conducive to diversity
Phase 2: Implementation

How to go about setting goals and objectives?
– internal statistics regarding the rate of labour turnover
at the various levels
– internal statistics regarding movements such as
promotions and transfers at the various levels
– information regarding the profile of the economically
active population in their region
– comparisons between the organisation's workforce
profile and those of similar organisations.

– AA measures are those measures that need to
be taken 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.
– For each specific practice identified, an
affirmative action measure or measures need to
be formulated and developed.

STEP 6: Time frames
• The duration of a plan should be between one and
five years. Employers should decide on the
duration of their plans given their particular
circumstances and the timeframe in which they
can make meaningful progress.
• The time frame should set out more than the
duration of the plan. It should specify milestones
and the target dates set for reaching these.

STEP 7: Resources
• Budgets should be appropriately allocated in order
to implement the agreed components of the plan.
• People such as the manager(s) assigned with
responsibility.
• Time off for stakeholders involved in the process.
• Infrastructure such as a project office or meeting
room.
• Training and information sharing
• Any other resources that may be appropriate in
the circumstances.

STEP 8: Communicate the plan
Communication should inform stakeholders:
– Who is responsible for the implementation of
the plan
– Where information regarding the plan can be
obtained
– Objectives and duration of the plan
– Dispute resolution procedures
– Roles and responsibilities

Employment Equity by Derek Hendrikz

Employment Equity by Derek Hendrikz

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