|
|
Marius Scheepers & Company Attorneys |
|
|
CODE OF GOOD
PRACTICE: PREPARATION, IMPLEMENTATION AND MONITORING OF EMPLOYMENT EQUITY
PLANS as promulgated in GN
R1394 in GG 20626 of 23 November 2001
Notice is hereby
given under Section 54 of the Employment Equity Act, 1998, that the
Minister of Labour, having been advised by the Commission for Employment
Equity, has issued a Code of Good Practice on the preparation,
implementation and monitoring of an Employment Equity Plan, as set out in
this schedule. SCHEDULE
CODE
OF GOOD PRACTICE
PREPARATION,
IMPLEMENTATION, AND MONITORING OF EMPLOYMENT EQUITY PLANS CONTENTS
1. Objective 2. Legal
Framework 3.
Scope 4. Purpose
and rationale for the plan 5. Structure
of the plan 6. Process
for constructing a plan 7. Planning
phase 8. Developing
the plan 9.
Monitoring and evaluating the plan 1 Objective The objective
of this code is to provide guidelines of good practice, in terms of the
requirements of the Employment Equity Act, 1998 (Act 55 of 1998)
(hereafter referred to as “the Act”), for the preparation and
implementation of an employment equity plan (hereafter referred to as
“the plan”). 2 Legal framework 2.1 This code is issued in terms of Section 54 of the Act, and relates to
Section 20. 2.2 This code does not impose any legal obligations in addition to those
in the Act and the failure to observe it does not, by itself, render a
designated employer liable in any proceedings, except where the code
refers to obligations that are required by the Act. 2.3 When interpreting the Act, any relevant code of good practice must be
taken into account 1. 3 Scope 3.1 This code is relevant to all employers that are regarded as
designated employers in the Act.2 3.2 Designated
employers and the employees of designated employers should apply the
guidelines set out in this code to develop their employment equity plans,
taking into account the specific circumstances of their own organisations. 3.3 This code may be read in conjunction with other codes of good
practice that may be issued by the Minister of Labour. 4 Purpose and rationale for the plan 4.1 The plan reflects a designated employer’s employment equity
implementation programme. 4.2 The plan represents the critical link between the current workforce
profile and possible barriers in employment policies and procedures,
and the implementation of remedial steps to ultimately result in
employment equity in the workplace. 5 Structure of the plan 5.1 The plan may be a separate document or a component of a broader
document such as a business plan. 5.2
In terms of the manner in which it is set out, the plan may closely
follow the sections of the Act and the relevant items of the Code, or may
be organised differently, as long as the statutory requirements in Section
20 of the Act are reflected in the plan. 5.3
The plan should be accessible and structured in such a way that it
is easy to understand. 6 Process
for constructing a plan 6.1 The development of a plan should be undertaken as an inclusive
process that will result in a documented plan. 6.2 The process of developing a plan has three sequential phases:
planning, development, and implementation and monitoring. 6.3 The planning phase of the process should include- ·
assignment of responsibility
and accountability to one or more senior managers; ·
a communication, awareness
and training programme; ·
consultation with relevant
stakeholders; ·
an analysis of existing
employment policies, procedures. and practices; ·
an analysis of the existing
workforce profile; ·
an analysis of relevant
demographic information such as that contained in form EEA 8; and ·
an appropriate benchmarking
exercise, such as comparing the organisation’s workforce profile with
those of other organisations within the same sector, or the development of
other meaningful comparisons. 6.4 In the development phase, in consultation with the identified role
players, should include- ·
objectives set; ·
corrective measures
formulated; ·
time frames established; the
plan drawn up; ·
resources identified and
allocated for the implementation of the plan; and ·
the plan communicated. 6.5 Implementation
and monitoring is an ongoing process and should continue to include
components of the earlier phases, such as consultation, communication,
awareness and training. This phase should include- ·
Implementation; ·
monitoring and evaluating
progress; ·
reviewing the plan; and ·
reporting on progress. 7 Planning phase 7.1 Assignment
of senior manager 3 7.1.1 The planning phase should commence with
the assignment of one or more senior managers who should have the
responsibility for the development, implementation and monitoring of the
plan. They should- ·
be permanent employees; and ·
report directly to the Chief
Executive Officer. 7.1.2 The
assignment of one or more senior managers implies that- ·
the employer should also
provide the assigned managers with the necessary authority and means, such
as an appropriate budget, to perform their allocated functions; ·
the employer is not relieved
of any duty imposed by this Act or any other law; and ·
the employer should take
reasonable steps to ensure that these managers perform their allocated
functions. This could be done through the incorporation of key employment
equity outcomes in performance contracts of the responsible managers as
well as line managers throughout the organisation. 7.2 Communication,
Awareness and Consultation 4 7.2.1 All employees should be made aware and
informed of ·
the content and application
of the Act as preparation for their participation and consultation; ·
employment equity and
anti-discrimination issues; the proposed process to be followed by the
employer; ·
the advantages to employees
of participation in the process; and ·
the need for the involvement
of all stakeholders in order to promote positive outcomes. 7.2.2
Employers are required to consult with regard to conducting an
analysis, the preparation and implementation of the plan, and the
submission of employment equity reports to the Department of Labour. 7.2.3 To ensure the successful implementation
of a plan, employers should make every effort to include employee
representatives in all aspects of the plan, especially the planning and
development phases. 7.2.4
Managers should be informed of their obligations in terms of the
Act, and training should be provided to them where particular skills do
not exist. Examples of required training could include diversity
management, coaching and mentoring programmes. 7.2.5 The communication of an employment
equity strategy should focus on positive outcomes, such as the better
utilisation of all of the employer’s human resources and the creation of
a diverse and more productive workforce. 7.2.6
Communication should also include employees from non-designated
groups 5 and focus on the contribution that can be made by them. 7.2.7
Consultation with employees should commence as early as possible in
the process. 7.2.8
A consultative forum should be established or an existing forum
utilised. The forum should include employee representatives reflecting the
interests of employees from both designated and non-designated groups and
across all occupational categories and levels of the workforce.
Representative trade unions, where these exist, or representatives
nominated by such trade unions must be included in the consultation
process. 7.2.9
The employer should be represented by one or more members of senior
management. 7.2.10
Consultation would include- ·
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, and ·
adequate time allowed for
each of these steps. 7.2.11
To ensure an informed and constructive consultation process,
structured and regular meetings of the consultative forum or forums should
be held. 7.2.12
The disclosure of relevant information by designated employers is
vital for the successful implementation of the plan. Such information
could include- ·
the particular business
environment and circumstances of the employer; ·
information relating to the
relevant economic sector or industry; ·
relevant local, regional,
and national demographic information relating to the economically active
population; ·
the anticipated growth or
reduction of the employer’s workforce; ·
the turnover of employees in
the employer’s workforce; ·
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; and ·
employment policies and
practices of the employer. 7.2.13
All parties should, in all good faith, keep an open mind throughout
the process and seriously consider proposals put forward. 7.2.14
Where a representative body or trade union refuses to take part in
the consultation process, the employer should record the circumstances, in
writing, including those steps that the employer has taken to communicate
and initiate the consultation process. A copy of this document should be
provided to the representative body or trade union concerned. 7.3 Conducting an analysis 6 The purpose of
the analysis is- (a)
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 under-utilisation of
employees from the 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 (b)
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. While
the first type of analysis is of a more qualitative and legal nature, the
second is mainly a statistical and data processing exercise. 7.3.1 Review of employment policies,
practices, procedures, and working environment A review of
all employment policies, practices. procedures, and of the working
environment should be undertaken in order to identify any barriers that
may be responsible for the under-representation or under utilisation of
employees from designated groups. (a) The review should include a critical examination of all established
policies, practices, procedures and working environment. These would
include- ·
employment policy or
practices. such as recruitment, selection. pre-employment testing, and
induction that could be biased, inappropriate, or unaffirming; ·
practices related to
succession and experience planning. and related promotions and transfers
to establish whether designated groups are excluded or adversely impacted; ·
utilisation and job
assignments to establish whether designated groups are able to
meaningfully participate and contribute: ·
current training and
development methodologies and strategies, including access to training for
designated groups; ·
remuneration structures and
practices such as equal remuneration for work of equal value; ·
employee benefits related to
retirement, risk, and medical aid to establish whether designated groups
have equal access; ·
disciplinary practices that
may have a disproportionately adverse effect on designated groups and that
may not be justified; ·
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, which may
be characterised by exclusionary social and other practices; ·
practices relating to the
management of HIV/AIDS in the workplace, to ensure that people living with
HIV/AIDS are not discriminated against; and ·
any other practices or
conditions that are tabled arising out of the consultative process:. (b) All practices should be assessed in terms of cross-cultural and
gender fairness. (c) The review should take into account more subtle or indirect
forms of discrimination and stereo-typing which could result in certain
groups of people not being employed in particular jobs, or which could
preclude people from being promoted. Examples would include pregnancy,
family responsibility7, exclusionary social practices, sexual harassment,
and religious or cultural beliefs and practices. 7.3.2 Workforce profile (a) The first step in conducting an analysis of the workforce profile is
to establish which employees are members of designated groups. This
information should be obtained from employees themselves, either from a
declaration as provided for in Regulation 2 (1) or from existing and
dependable sources. An example of an existing and dependable source would
be an employer s database that contains the information required on
employment application forms. If such existing records are utilised for
this purpose, each employee should have the opportunity to verify or
request changes to this information. (b) An analysis of the workforce profile should provide a comparison of
designated groups by occupational categories and levels to relevant
demographic data. Form EEA 8 contains some demographic data for this
purpose, but there are many other sources of information that could be
utilised and might be more relevant. (c) In addition to the demographics, both the availability of
suitably qualified people from designated groups in the relevant
recruitment area, as well as the internal skills profile of designated
employees, should be taken into account. The “relevant recruitment
area” is that geographic area from which the employer would reasonably
be expected to draw or recruit employees. (d) Recruitment areas may vary depending upon the level of responsibility
and the degree of specialisation of the occupation. Usually, the higher
the degree of responsibility or specialisation required for the job, the
broader the recruitment area. (e) The standard occupational classification as defined in form EEA 10
should form the basis for determining occupational categories.
Occupational levels could be determined by any of the professional job
grading systems (Paterson, Peromnes, Hay, etc.) or their equivalents as
detailed in form EEA 9. In the absence of a formal job grading system,
designated employers may use equivalent occupational levels as the basis
for the workforce analysis. (f) Sections B and C of the Employment Equity Report as
defined by form EEA 2 should guide employers in establishing information
requirements to develop a plan, and provide the basis for developing a
workforce profile. 8 Developing the plan 8.1 Duration
of the plan 8 The duration of the
plan should be for a period that will allow the employer to make
reasonable progress towards achieving employment equity. This period
should be no shorter than one year and no longer
than five years. as specified in the Act. 8.2 Broad objectives of the plan The broad
objectives of the plan should be specified and a timetable developed for
the fulfilment of each objective. These objectives should- ·
take into account the output
of the planning phase; ·
take into account the
particular circumstances of the employer; and ·
be aligned with and included
in the broader business strategy of the employer. 8.3 Affirmative action measures9 8.3.1 Affirmative
action measures, to address the barriers identified during the analysis,
should be developed to improve the under representation of designated
group members. Such measures relate to, but are not limited to the
following: ·
Appointment of members from
designated groups This
would include transparent recruitment strategies such as appropriate and
unbiased selection criteria and selection panels, and targeted
advertising. ·
Increasing the pool of
available candidates Community
investment and bridging programmes can increase the number of potential
candidates. ·
Training and development of
people from designated groups These
measures include access to training by members of designated groups,
structured training and development programmes like learnerships and
internships; on the job mentoring and coaching, and accelerated training
for new recruits. Where required, diversity training should be provided to
responsible managers, as well as training in coaching and mentoring
skills. ·
Promotion of people from
designated groups This
could form part of structured succession and experience planning and would
include appropriate and accelerated training. ·
Retention of people from
designated groups Retention
strategies would include the promotion of a more diverse organisational
culture; an interactive communication and feedback strategy; and ongoing
labour turnover analysis. ·
Reasonable accommodation 10
for people from designated groups These
measures include providing an enabling environment for disabled workers
and workers with family responsibilities so that they may participate
fully and, in so doing, improve productivity. Examples of reasonable
accommodation are accessible working areas, modifications to buildings and
facilities, and flexible working hours where these can be accommodated. ·
Steps to ensure that members
of designated groups are appointed in such positions that they are able to
meaningfully participate in corporate decision-making processes A
conscious effort should be made to avoid all forms of tokenism. Candidates
must be appointed with commensurate degrees of authority. ·
Steps to ensure that the
corporate culture of the past is transformed in a way that affirms
diversity in the workplace and harnesses the potential of all employees Such
steps could include programmes for all staff, including management,
contextualising employment equity and sensitising employees with regard to
the grounds of discrimination such as race, diversity, gender, disability
and religious accommodation. ·
Any other measures arising
out of the consultative process 8.3.2 All
corrective measures to eliminate any barriers identified during the
analysis should be specified in the plan. 8.3.3
The employer is under no obligation to introduce an absolute
barrier relating to people who are not from designated groups, for example
having a policy of not considering white males at all for promotion or
excluding them from applying for vacant positions. 8.4
Numerical goals 11
8.4.1 Numerical
goals should be developed for the appointment and promotion of people from
designated groups. The purpose of these goals would be to increase the
representation of people from designated groups in each occupational
category and level in the employer’s workforce, where
under-representation has been identified and to make the workforce
reflective of the relevant demographics as provided for in form EEA 8. 8.4.2 In developing the numerical goals, the
following factors should be taken into consideration- ·
The degree of
under-representation of employ employees from designated groups in each
occupational category and level in the employer s workforce; ·
present and planned
vacancies; ·
the provincial and national
economically active population as presented
in form EEA 8; ·
the pool of suitably
qualified persons from designated group,. from which the employer may be
reasonably expected to draw for recruitment purposes; ·
present and anticipated
economic and financial factors relevant to the industry in which the
employer operates; ·
economic and financial
circumstances of the employer; ·
the anticipated growth or
reduction in the employer’s workforce during the time period for the
goals; ·
the expected turnover of
employees in the employer’s workforce during the time period for the
goals; and ·
labour turnover trends and
underlying reasons, specifically for employees from designated groups. 8.5
Consensus
In
setting objectives and developing corrective measures, parties to the
consultative processes should attempt to reach consensus on what would
constitute reasonable progress over the duration of the plan. 8.6
Resources Resources,
including budgets, should be appropriately allocated in order to implement
the agreed components of the plan. 8.7
Assignment of responsibility
Responsibility for
implementation and monitoring of the plan, as assigned during the planning
phase, should be confirmed and noted. 8.8
Dispute Resolution
8.8.1 Internal
procedures for resolving any dispute about the interpretation and
implementation of the plan should be agreed and specified. 8.8.2 The
use of existing dispute resolution procedures should be encouraged
provided that they are appropriate, and if necessary adapted to the needs
of employment equity. 8.8.3 Alternatively.
a mechanism with appropriate representation from employer and employees
may be established in order to address and resolve such disputes. 8.9
Communication
8.9.1 The
plan should be appropriately and comprehensively communicated to
employees. This communication mechanism should indicate the parties
responsible for the implementation of the plan and the agreed dispute
resolution procedures. Information about the plan should be easily
accessible to all levels of employees. 9 Monitoring and evaluating the plan 9.1 Records
should be kept to effectively monitor and evaluate the plan. 9.2 Mechanisms
to monitor and evaluate the implementation of the plan should be agreed
and include benchmarks that would permit assessment of reasonable
progress. 9.3 The plan should be evaluated at regular
intervals to ensure that reasonable progress is made. This evaluation
should be integrated into mechanisms that the employer normally utilises
to monitor its operations. 9.4 The consultative forum(s) should continue to meet on a regular basis,
and should receive progress reports. Progress should be recorded and
communicated to employees. Such meetings should take place at reasonable
intervals to ensure feedback and inform the ongoing implementation
process. 9.5
The plan should be reviewed and revised, as necessary, through
consultation. 9.6
Reporting 12 9.6.1 Larger employers, with 150 or more
employees, will be required to submit first reports by 1 June 2000 and
thereafter annually on the first working day of October, starting in 2001. 9.6.2 Smaller employers, with fewer than 150
employees, will be required to submit their first reports by 1 December
2000 and thereafter every second year, on the first working day of
October, starting in 2002. 9.6.3 The reporting format for employers is
contained in the Employment Equity Report as defined in form EEA 2. 9.6.4 Designated employers whose operations
extend across different geographical areas, functional units, workplaces
or industry sectors may elect to submit either a consolidated or a
separate report for each of these. This decision should be made by
employers after consultation with the relevant stakeholders. |
