Employment Equity. Will Your Remuneration Practice be Fine or Fined? Winston Owen Owen, Adendorff & Associates (Pty) Ltd

Transcription

1 Employment Equity Will Your Remuneration Practice be Fine or Fined? Winston Owen Owen, Adendorff & Associates (Pty) Ltd MANAGEMENT CONSULTANTS AND TRAINING PROVIDERS

2 Motivations for Employment Equity 1. BEE Points? 2. Fines for Non-compliance? 3. The Right Thing to do in SA? 1. Skills Gaps? 2. Social Stability? 3. Redressing past injustice & imbalances?

3 Nomenclature Affirmative Action Employment Equity Designated Groups African, Coloured, Indian; Women; People with Disabilities.

4 Employment Equity Removal of Unfair Discrimination Removal of Barriers Affirmative Action Targeted R&S Learning & Development

5 Designated Employers (Scope) All Organisations Employing more than 50 or Turnover above thresholds...

6 Turnover Thresholds per Industry Sector or Sub-sector Wholesale, Commercial Agents etc Retail, Motor Trade & Repair Services Manufacturing, Transport & Storage, Communications, Finance & Business Services Construction, Catering & Accommodation Total Annual Turnover R75m R45m R30m R30m R15m

7 Basic Compliance with EEA Designated Employers must: - 1. Display EEA3 2. Draft Employment Equity Plan 3. Submit EE Reports to DoL 4. Consult with E ees on Plan & Reports 5. EE Reports on Notice Boards

8 EE Reports EEA2 Progress Qualitative Quantitative Goals & Targets Publish EEA4 Income Differentials Reasons for Variances Don t Publish

9 The Committee Members Must Represent All Employees: Race Gender Occupational Levels Disabled

10 Developing the Plan Analysis Demographic profile Staff Turnover Barriers to Employment Equity Policies, Practices & Environment Objectives, Goals & Targets Steps to Remove Barriers Numerical Goals (Affirmative Action)

11 Affirmative Action Measures Identify and eliminate unfair discrimination Implement training & development Preferential: Recruitment Selection & Promotion

12 Monitoring CEO Senior Manager(s) Committee Members Department of Labour Inspectors Auditing Teams

13 Department of Labour Teams Inspectors 4-5 people Basic Compliance Auditors Teams of 2 Balancing of Figures EEA2 Remuneration EEA4 Escalate to DG (DG Report) Teams of 6: Review

14 Responsible Senior Manager EE Act Compliance Implement EE & AA Strategy Removal of Unfair Discrimination Develop & Publish Policies Employment Equity HIV/AIDS Disabilities Sexual Harassment Maintain Evidence File

15 Current Fines Currently up to R900,000 Lengthy Process Compliance Orders Objections Referral to the Labour Court

16 Draft Process for Fining 1. DG Request or Recommendation 2. Failure to Comply within Specified Time 3. DG applies to Labour Court for an Order 4. Consideration of Employer s Justification 5. If Justification Fails, DG Imposes a Fine.

17 Proposed Fines Previous Contravention Contravention of S16,19,22,24,25, 26,27 &43 Contravention of S20,21,21 &44 None R1,500,00 The greater of R1,500,00 or 2% Turnover Four (4) R2,700,00 The greater of R2,700,00 or 10% Turnover

18 Remuneration Current Legislation EEA2 (Pg15: Barriers to EE) Job classification and grading Remuneration and benefits Terms and conditions of employment Retention Measures EEA4 Income Differentials

19 INCLUSIONS IN REMUNERATION CALCULATIONS Housing or accommodation allowance or subsidy Car allowance or provision of a car, except to the extent that the car is provided to enable the employee to work Any cash payments made to an employee, except those listed as exclusions ; Contributions to medical aid, pension, or similar schemes Contributions to funeral or death benefit schemes.

20 Revised Legislation S6(1) No person may unfairly discriminate... Against an employee in any employment policy or practice, on... Grounds of race, gender, sex, marital status, family responsibility, ethnic or social origin... Age, disability... HIV status... Language, birth or any other arbitrary ground

21 Revised Legislation Remuneration (4) A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work of equal value that is directly or indirectly based on on any more of the grounds listed in subsection (1) or on any other arbitrary ground is unfair discrimination.

22 Revised Legislation S6(1) No person may unfairly discriminate... Against an employee in any employment policy or practice, on... grounds of race, gender, sex, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, language, birth or any other arbitrary ground

23 Assessing Work of Equal Value (5) The Minister... may issue a regulation setting out the criteria and the methodology for assessing work of equal value...

24 Burden of Proof Arbitrary Grounds Complainant: 1. Conduct is not rational 2. Amounts to discrimination and 3. Discrimination is unfair

25 Burden of Proof Grounds in 6(1) Employer Discrimination did not take place or Discrimination is: Rational Not unfair or Justifiable

26 Section 27 Income Differentials and discrimination Includes T s & C s of Employment Will fall into the Fine Category Must take measures to progressively reduce such differentials...

27 The Complainants? Aggrieved Employees CCMA Labour Court Remediation (with back-pay?) DoL Auditors Request or Requirement Labour Court Fine

28 The Way Forward a) African Advancement b) Retention Measures a) Hygiene Factors b) Motivational Factors c) Prepare Now for Potential Audit a) Evidence File b) Salary Benchmarks c) Measures to Reduce Income Differentials

29 Thank you for being here... DO YOU HAVE ANY QUESTIONS?