Why employers cannot ignore equity laws...

By Ivan Israelstam

Minister of Labour Membathisi Mdladlana is making increasingly louder noises relating to thousands of employers who fail to comply with employment equity (EE) legislation.

Those employers who are still avoiding or evading compliance with this legislation say the reasons they are opting out include: "The EE Act and related regulations and codes do not apply to us"; "We cannot afford to implement the legislation"; "The department of labour's (DOL) resources are too stretched and inefficient to catch us" and "If we're caught we will simply say we did not know how to implement EE."

However, employers should be aware that:

·          The EE legislation applies to a large proportion of employers

·          Those thousands of employers who do fall under the yoke of this legislation cannot afford not to comply with it. This is because the penalties for non-compliance are extremely harsh and include a maximum fine of R500 000.

·          The DOL has upgraded its resources and is hot on the trail of defaulters

·          The excuse (for non-compliance) that the employer did not know how to implement EE has been invalidated by the new Code of Good Practice on the Integration of Employment Equity into HR Policy and Practice, Government Gazette No 27866, August 4 2005.

This new code spells out how the employer's EE obligations are to be integrated into its normal everyday human resources policies and practices. The code is very comprehensive and covers the following topics:

·          Implementing EE

·          Commencing Employment

·          Job Analysis & Job Description

·          Recruitment & Selection

·          Induction

·          Probation

·          Medical, Psychological & Other Similar

Assessments

·          During Employment

·          Terms and Conditions of Employment

·          Remuneration

·          Job Assignments

·          Performance Management

·          Skills Development

·          Promotion and Transfer

·          Confidentiality and Disclosure of Information

·          Retention

·          Scope

·          Impact on Employment Equity

·          Harassment

·          Discipline, Grievance and Dispute Resolution

·          Ending Employment

·          Terminating Employment

·          Exit Interviews

Space does not allow me to report on all of these topics. However, to give readers an idea of the in-depth nature of the provisions, we have quoted below a portion of the code dealing with promotion and transfers as they relate to EE:

"Promotions and transfers have the potential to impact on numerical goals and accelerate equitable representation of all groups in occupational categories and levels within a workplace.

These initiatives are key drivers for employment equity in that they can involve fast-tracking advancement towards achieving numerical targets.

16.3. Policy and Practice

16.3.1. Employers are prohibited from unfair discrimination in promotion and transfer decisions. One of the mechanisms for eliminating unfair discrimination is to ensure that written policies and practices specify the criteria, which apply to promotions and transfers. Managers implementing the policies and practices should be monitored to ensure they are applying them consistently.

6.3.2. An employer may implement a policy of preference towards members of designated groups in transfers and promotions as a legitimate affirmative action measure.

16.3.3. Lateral transfers to equivalent positions may be effectively used to achieve employment equity targets. Reasonable provision must be made where an employee requests a transfer.

Employers are advised that the fact that the legislators have taken the time and trouble to develop this 43-page code makes it clear that they are deadly serious about the implementation of EE.

·          You can phone Ivan at 082-456-8247 or 011-787-5445  or email labourlaw@absamail.co.za

• Our thanks and appreciation to Ivan and The Star newspaper for permission to publish this article.

Click here to download the new code of conduct on Employment Equity 

The South African Labour Guide is a private company and has no association with the Commission for Conciliation, Mediation and Arbitration (CCMA), you may find the CCMA on www.ccma.org.za