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Ivan Israelstam

Recently a major airline operating in South Africa was reported to have been fined R900 000 for failing to comply with the Employment Equity Act (EEA).  This penalty highlights the seriousness with which the Department of Labour (DOL) takes non-compliance with the provisions of the act and shows that they will not hesitate to bring the maximum penalty against defaulters.


If you are a designated employer, you have only a few weeks to submit your Employment Equity Report. Designated employers are those that either have more than 50 employees or that have fewer than 50 employees, but have an annual sales turnover that exceeds the threshold for their sector.



Employers are warned that, while submitting their EE Report in time is crucial, this is not enough to ensure full compliance with the requirements of the legislation. Employers are also legally bound to ensure that the report's contents are true and correct and that they can show that they have made sufficient progress with affirmative action in the staffing of their organisations as required by the EEA.


It is clear that prosecutions in the Labour Court and potentially bankrupting fines, can result if employers fail to comply.



This means that designated employers will have to:

  • Shift from merely putting together "impressive looking" reports for the DOL;
  • Do a detailed employment equity (EE) analysis;
  • Set affirmative action targets that are achievable on the one hand, but substantial enough on the other hand to satisfy the director-general of Labour;
  • Prepare and implement a detailed EE plan. This is a comprehensive strategy for recruiting, "accommodating" and developing members of designated groups.



That is, each employer must devise an action plan aimed at ensuring that it has the right proportion of designated people - black, coloured, Indian, female and disabled people, working in all departments and at all levels of the organisation, including the very top levels of management. For example, if you have 50 members on your board of directors, then you must aim to have approximately 35 black, five coloured, four Indian and five white directors.


Of these, 25 should be female and two should be disabled.

  • Ensure that these plans are implemented effectively and in tune with the EEA's procedural requirements;
  • Consult with a full cross-section of their workforce and representative trade unions on the devising and implementation of the above mentioned analysis, report, plan and target;
  • Make available to employees all the relevant documents - employment equity report and employment equity plan;
  • Make special arrangements to ensure that black, coloured, Indian, female and disabled employees are able to remain with the organisation, cope with their duties and work environment, that they fit into the organisation and to advance in the organisation; and
  • Eliminate barriers to employment of members of designated groups.

 

While none of these requirements are impossible, they will be very much more difficult to achieve with the DOL inspectors breaking down your door. It is important to bear in mind that, once you have set up your EE system, based on your own level of resources and circumstances, the task of EE compliance becomes very much easier. While potential investors are being deterred by South Africa's labour law requirements, the director general is charged with implementing the law with regard to affirmative action.


He therefore has no option but to police employers that do not comply and to prosecute those that do not heed his instructions to implement affirmative action meaningfully. Unfortunately, the EEA does not sufficiently take into account the fact that the number of jobs available in South Africa is not increasing.



This makes it extremely difficult for you to increase your numbers of employees from designated groups even if you want to. However, as long as you can prove that you are doing everything possible to normalise the demographics of your organisation and that you have been completing the compulsory analyses, reports and plans, the DOL is unlikely to take action against you.


You have everything to gain and nothing to lose by using the help of a labour law expert to devise your EE analysis, report, plan, target and consultation system. Otherwise, at the Labour Court, you will not only be forced to implement EE and to pay crippling fines; you may also be faced with having to meet imposed EE targets.

 

  • Ivan Israelstam is chief executive of Labour Law Management Consulting. He can be contacted on 011- 888-7944 or 082-852-2973 or e-mail [email protected]
  • Our appreciation to Ivan and The Star newspaper for permission to publish this article

 

The four-day working week and its impact on South African labour law: Are we ready?

 

If there is one thing we can learn from the COVID-19 pandemic, it is that many employees can work from anywhere and the “normal” 9 to 5 is no longer palatable to the upcoming workforce.

 

2022/07

By Hedda Schensema, Director and Tshepiso Rasetlola, Associate, Employment Law, Cliffe Dekker Hofmeyr

 

Over the past two years, many employers have had to reassess their working arrangement as a result of the pandemic. COVID-19 served as a test run on what the “new normal” has to offer in respect of the employment relationship and some working conditions. This has resulted in many employers successfully implementing a hybrid working arrangement and, in some instances, even requiring their employees to work from home indefinitely.

 

Many employers have indicated that they have experienced an increase in productivity and less stressed employees. On the flip side, however, employees have been unable to shut down and find themselves working round the clock and over and above their normal working hours. Considering the above, does this mean that South Africa is ready for a four-day working week post COVID-19?

Countries like Belgium and the UK have been able to successfully implement a four-day working week. However, given that South Africa is highly regulated in respect of its labour and employment laws, it has been argued that it would not be as seamless or easy an exercise to implement in comparison to these countries.

 

South Africa has numerous bargaining councils and sectorial agreements that regulate basic conditions of employment in the different sectors and include, inter alia, working hours. In order to be able to implement a four-day working week model, these agreements will have to be amended and their terms renegotiated to align with such a model.

 

This means an employer cannot change the terms and conditions of employment as recorded in these agreements without first consulting the relevant stakeholders, which include trade unions, workplace forums and individual employees.

 

This is a process that is consultative and which must result in consensus being reached on all aspects related to the arrangement. A failure to obtain consent prior to implementing the working model may result in a unilateral change in terms and conditions of employment by an employer. This could expose the employer to a referral by its employees in relation to unilateral changes to terms and conditions of employment.

 

In addition to this, the relevant labour and employment laws will have to be amended to cater for the working model from a regulatory point of view. Employers will need to consider their health and safety obligations towards employees in terms of the Occupational Health and Safety Act 85 of 1993, which requires an employer to, among other things, do everything reasonably practicable to protect employees’ health and safety in the workplace. In this regard, an employer’s obligations to ensure the health and safety of its employees extends to where the employee is working outside of the conventionally understood workplace, including a home office.

 

Although a four-day working week model sounds like a brilliant and exciting idea, employers will have to assess their respective sector and industry in order to establish whether it would be practicable or even feasible for its business model. Employers will also have to consider the applicable legislation and agreements regulating their sector and engage in a consultative process with the relevant stakeholders.

 

It is, therefore, perhaps premature to make a concrete finding that the four-day working week model would be possible in a highly regulated country like South Africa. We will therefore have to monitor its progress and assess from an individual employer’s business model as to whether the four-day working week would be appropriate.

 

For more information please contact Hedda Schensema at [email protected] or Tshepiso Rasetlola at [email protected]

 

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com.

 

 

 

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