GUIDELINES PREPARATION OF AN EMPLOYMENT EQUITY PLAN

Transcription

1 GUIDELINES PREPARATION OF AN EMPLOYMENT EQUITY PLAN 1

2 INDEX 1. BACKGROUND 2. DEFINITIONS 3. LEGISLATIVE FRAMEWORK 4. DEVELOPING AND IMPLEMENTING AN EMLOYMENT EQUIYT PLAN 4.1 Assigning Responsibility 4.2 Communication and Awareness 4.3 Consultation 4.4 Conducting the Analysis 4.5 Components of the Employment Equity Plan Duration of the plan Broad objectives of the plan Developing affirmative action measures Developing numerical goals Allocating resources 4.6 Communication 4.7 Monitoring and review of the plan 4.8 Reporting to the Department of Labour 5. Bibliography N.B. THIS GUIDELINE DOES NOT SUBSTITUTE COLLECTIVE AGREEMENTS WHICH EXISTS WITHIN ORGANIZED LOCAL GOVERNMENT AND ACTS AS A GUIDELINE TO SUPPORT MUNICIPALITIES TO PROMOTE SOUND LABOUR RELATIONS PRACTICE. 2

3 1. BACKGROUND The Employment Equity Act, was passed by parliament to address disparities in jobs, skills and education brought on by the injustices of the past. The Employment Equity Act put in place legislative measures aimed at monitoring the implementation of affirmative action and requires designated companies to report on the demographics of their employees. The Department of Labour has developed an employment equity database into which the information submitted by employers is entered, and then analyzed. The Employment Equity Act prescribes that all designated employers must develop and submit Employment Equity Plans to the Department of Labour in order to ensure that unfair discrimination is eliminated in the workplace and affirmative action measures are taken to provide employment opportunities to the people from the designated groups. This guide is designed to assist municipalities to develop and implement Employment Equity Plans which are in compliance with the Employment Equity Act. 2. DEFINITIONS Unless the context otherwise indicates - Basic Conditions of Employment Act means the Basic Conditions of Employment Act, 1997 (75 of 1997; Black people means Africans, Coloureds and Indians; The Code of Good Practice means a document issued by the Minister in terms of section 54 of the Employment Equity Act, intended to provide employers with information that may assist them in implementing this Act; Constitution means the constitution of the Republic of South Africa Constitution, 1996 (108 of 1996); Designated Employer means an employer who- employs 50 or more employees; 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; Municipality means municipality as referred to in Chapter 7 of the Constitution; 3

4 Organ of State means any department as defined in section 239 of the Constitution, but excluding local spheres of Government, the National Defence Force, the National Intelligence Agency and the South African Secret Service; Designated group means black people, women and people with disabilities; Dismissal means termination of a contract of service as contemplated in section 186 of the Labour Relations Act, 1995 (66 of 1995); Dispute means declared or alleged dispute; Employee means any person other than an independent contractor who- works for another person or for the State and who receives, or is entitled to receive, any remuneration; in any manner assists in carrying on or conducting the business of the employer; Employment Equity Act means the Employment Equity Act, 1998 (55 of 1998); Employment policy or practice includes, but is not limited to the following- Recruitment procedures, advertising and selection criteria; Appointments and the appointment process; Job classification and grading; Remuneration, employment benefits and terms and conditions of employment; Job assignments; Family responsibility means 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; HIV means the Human Immunodeficiency Virus; LRA means the Labour Relations Act, 1995 (66 of 1995); Medical testing means 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; Minister means the Minister of Labour; 4

5 People with disabilities means people who have a long term or recurring physical or mental impairment which substantially limits their prospects of entry into or advancement in, employment; Pregnancy means intended pregnancy, termination of pregnancy and any medical circumstances related to pregnancy; Prescribed means prescribed by a regulation made under section 55 of the Employment Equity Act; Reasonable accommodation means any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment; Skills Development Act means the Skills Development Act, 1998 (97 of 1998); Suitably qualified person means a person who may be qualified for a job as a result of any one or any combination of that person s: formal qualifications, prior learning, relevant experience, capacity to acquire, within a reasonable time, the ability to do the job. 3. LEGISLATIVE FRAMEWORK The development, implementation, monitoring and reporting of an Employment Equity Plan is mandated by the following legislation and national policies: The Republic of South Africa Constitution, 1996; The Employment Equity Act, 1998; The Labour Relations Act, 1995; The Basic Conditions of Employment Act, 1997; and The Skills Development Act, 1998; 4. DEVELOPING AND IMPLEMENTING AN EMPLOYMENT EQUITY PLAN The Department of Labour has laid down certain steps to follow when developing an Employment Equity Plan. These guidelines are based on those steps with recommendations being made in appropriate sections to assist municipalities develop their own plans. 4.1 Assigning Responsibility The Employment Equity Act requires that the municipality assign one or more managers to take responsibility for implementing and monitoring the employment equity plan. The municipality is also required to provide the managers with authority and means to perform their functions and take reasonable steps to ensure that the managers perform their functions. 5

6 4.1.2 It is recommended that Directors or Managers of Corporate Services be assigned the responsibility to draft, co-ordinate, implement and monitor the employment equity plan. These managers must also act as chairpersons of the Employment Equity Consultative Forums The Human Resources Managers of the municipalities must act as alternatives both for the purposes of implementing and monitoring of the employment equity plans as well as chairing the consultative committees if the assigned managers are unavailable The Act requires that the Assigned Manager be provided with all the necessary resources required to implement the plans successfully, including the budget, and authority such as reporting to the Council on matters of employment equity, after having consulted with the Local Labour Forum The Act requires that municipality forms an Employment Equity Forum that holds meetings at agreed intervals and is consulted on all matters pertaining to employment equity In order to satisfy this requirement an Employment Equity Forum must be formed which shall have representatives from all different groups such as trade unions, employees from the designated groups, non-designated group, all occupational categories and levels. The Council nominates employees who shall represent management in the forum and employees be requested to nominate their own representatives This responsibility to drive employment equity must form part of each manager s performance agreement. 4.2 Communication and Awareness Once the manager has been assigned the responsibility to drive employment equity, he or she must embark on a process of making all employees- aware of the scope, content and application of the Employment Equity Act; sensitive to employment equity and anti discrimination issues; aware of the process to be followed; and aware of their role in the process It is recommended that the manager utilize different communication methods to communicate with employees, such as presentations to different stakeholders, conducting workshops, issuing pamphlets, circulars and newsletters as well videos and training sessions. 6

7 4.2.3 All managers of the municipality must be made aware of their obligations in terms of the Act and be offered skills in diversity management. 4.3 Consultation In terms of the Code of Good Practice, consultation should commence as early as possible in the process. Consultation also includes the opportunity to meet and report back to employees and management, reasonable opportunity for employees to meet with the employer, the request, receipt and consideration of relevant information and adequate time for all of these; Information requested by members of the forum for purposes of input into the plan must be disclosed and made available to them. 4.4 Conducting the analysis Review of employment policies, practices, procedures and the working environment In terms of the Code of Good Practice, the purpose of the analysis is to assess all employment policies, practices, procedures and the working environment so as to- identify any barriers that may contribute to the under-representation or underutilization of employees from designated groups; identify any barriers or factors that may contribute to the lack of affirmation of diversity in the workplace; identify other employment conditions that may adversely affect designated groups; identify practices or factors that positively promote employment equity and diversity in the workplace; and determine the extent of under-representation of employees from designated groups in the different occupational categories and levels of the employee workforce The Municipality must review the following policies, procedures and practices- all employment practices, such as recruitment, selection, pre-employment testing and induction policies that could be biased, inappropriate and disempowering; 7

8 policies related to succession and experience planning, promotions and transfers to establish whether designated groups are excluded or adversely impacted; utilization and job assignments to establish whether designated groups are able to meaningfully participate and contribute towards the achievement of business goals; current training and development methods and strategies, including access to training for designated groups; remuneration structures and practices such as equal remuneration for work of equal value; employee benefits such as retirement, risk and medical aid schemes to establish whether designated groups have equal access; working conditions that may not accommodate cultural or religious differences, such as the use of traditional healers and observance of religious holidays; the number and nature of dismissals, voluntary terminations and retrenchments of employees from designated groups that may indicate internal or external equity related factors contributing to such terminations; corporate culture; practices related to the management of HIV / AIDS in the workplace to ensure that people living with HIV / AIDS are not discriminated against; and the review of the physical environment such as building, toilets, etc. to determine if it accommodates people with disabilities Analysis of the Workforce Profile An analysis of the workforce profile should provide a comparison of designated groups by occupational categories and levels according to the relevant demographic data. The municipalities can use Form EEA 8 developed by the Department of Labour for this purpose; The first step in conducting an analysis of the workforce profile is to establish which employees are members of the designated groups. This information must be obtained from employees through the use of declaration provided for in Regulation 2(1). The municipalities could also use employee information on their database such as that contained in application forms, however, employees must have the opportunity to verify or update personal information; The municipality must take into account the availability of suitably qualified staff from the designated groups in the relevant recruitment area as well as the internal skills profile of designated employees when conducting the workforce 8

9 profile. The relevant recruitment area is that geographic area from which the municipality would reasonably be expected to draw or recruit employees. 4.5 Components of an Employment Equity Plan Duration of the Plan In terms of the Code of Good Practice, the plan should be between 1 and 5 years in duration, based upon the particular employer circumstances and the timeframe in which meaningful progress can be made and measured. Within that timeframe milestones should be specified and target dates set for reaching such milestones Broad objectives of the Plan The broad objectives of the plan must be specified and a timetable developed for the fulfillment of each objective. These objectives must take into account the output of the planning phase, particular circumstances of the municipality and be aligned with and included in the broader business strategy of the municipality Developing Affirmative Action measures In terms of the Code of Good Practice, affirmative action measures to address barriers identified during the analysis should be developed to improve the underrepresentation of designated groups. Such measures relate to, but are not limited to the following- appointment of members from the designated groups using transparent recruitment strategies, unbiased selection criteria, representative selection panels and targeted advertising; increasing the pool of available candidates through training and development of people from designated groups; retention of people from the designated groups. Retention strategies could include promotion of a more diverse organizational culture, an interactive communication and feedback strategy and on going labour turnover analysis; reasonable accommodation for people from the designated groups. The measures include providing an enabling environment for people with disabilities so that they may participate fully, and in doing so, improve productivity. Examples of reasonable accommodation would include accessible working areas, modifications to buildings and facilities and flexible working hours; 9

10 steps to ensure that members of designated groups are appointed in such positions that they are able to meaningfully participate in corporate decisionmaking processes of the municipality. A conscious effort must be made to avoid all forms of tokenism. Candidates must be appointed with commensurate degrees of authority; and Transforming culture of the past in a way that affirms diversity in the workplace and harnesses the potential of all employees Developing numerical goals Where under-representation of people from designated groups has been identified by the analysis, numerical goals must be established. The purpose of these goals will be to increase the representation of people from designated groups in each occupational category and level in the municipality s workforce In developing the numerical goals, the municipality must take the following into consideration: Allocating Resources The degree of under-representation of employees from the designated groups in each occupational category and level in the workforce; The provincial and national economically active population; The pool of suitably qualified people from the designated groups, from which the municipality may be expected to draw for recruitment purposes; Economic and financial circumstances of the municipality; Expected turnover of employees in the municipality s workforce during the time period for the goals; and The labour turnover trends and underlying reasons, specifically for employees from designated groups. In terms of the Code of Good Practice the resources, including budgets, should be appropriately allocated in order to implement the agreed components of the Employment Equity Plan. To make things happen, resources must be allocated, managers must be given the responsibility for its implementation. 4.6 Communication 10

11 The plan must be communicated to all stakeholders. The communication should include the following: 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; and Roles and responsibilities of the role players tasked with ensuring the success of the plan. 4.7 Monitoring and Review of the Plan In terms of the Code of Good Practice municipalities must do the following: Keep the records of the plan. They need to be able to review their starting position and track the movements over the duration of the plan; Implement one or more mechanisms to monitor and evaluate the implementation plan; Evaluate progress at structured and regular intervals; Report on progress to the consultative forum and all stakeholders; Where progress is unsatisfactory or flaws emerge in the plan, review and revise the plan through the consultation process; and Provide internal procedures to resolve any dispute about the interpretation and implementation of the plan. 4.8 Reporting to the Department of Labour All designated employers are required to report their employment equity activities to the Department of Labour annually for those employers who employ more than 150 employees or every two years for those who employ less than 150 employees. When reporting the municipalities are expected to comply with the following requirements: Complete and submit the Employment Equity Report Form EEA2 obtainable from the Department of Labour website; Complete and submit Income Differentials Form EEA4 also obtainable from the Department of Labour website. 5. Bibliography 11

12 5.1 The Employment Equity Plan 2005 to 2010 of the Department of Local Government and Traditional Affairs. 5.2 The Code of Good Practice: Preparation, Implementation and Monitoring of Employment Equity Plans. 5.3 The Human Resources Management in South Africa: Grobler P.A, Warnich S. et al; 3 rd Edition, The Promotion of Equality and Prevention of Unfair Discrimination Act, The White Paper on Integrated National Disability Strategy.The South African National Policy Framework for Women s Empowerment and Gender Equality. 5.6 The employment Equity Act 55 of