Employment Equity, Disability, HIV and Aids: Codes of Good Practice: Department of Labour briefing

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Employment and Labour

26 May 2008
Chairperson: Mr T Anthony (ANC)
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Meeting Summary

The Department of Labour and the Portfolio Committee held a workshop to deliberate on Employment Equity (EE) in South Africa, during which the general perspective and legal frameworks of employment equity were examined, and presentations were given on the Codes of Good Practice in relation to integration of Employment Equity into the workplace, Disability, and HIV and Aids. In respect of each of these Codes, the Department’s officials indicated that content and scope of the Code, the objectives, the duties and rights of employees and employers, and the positive steps which employers should be taking to implement non-discrimination and affirmative action measures in the workplace. Education and awareness was deemed crucial. In respect of both disability and HIV/Aids, there was still stigmatisation and lack of awareness.

The Department then briefed the Committee on the preparation, implementation and monitoring of Employment Equity (EE) plans, setting out the requirements at each phase, the points that must be covered, and the levels at which the processes should take place. The briefing was concluded with the requirements for EE reporting.

Meeting report

Code of Good Practice on the integration of Employment Equity (EE) into Human Resource Policies and Practices: Department of Labour (DOL) briefing
Mr Les Kettledas, Acting Director- General, Department of Labour, briefed the workshop on the Code of Good Practice (the Code) on the Integration of Employment Equity (EE) into Human Resource Policies and Practices.

He said that the objective of the Code was to disseminate a framework to employers for the promotion of EE through the elimination of unfair discrimination and the implementation of Affirmative Action (AA) measures such as the making of policies and rules, in human resources areas.

Mr Kettledas emphasised the importance of employers moving from formal equality to substantive equality. He recommended predominantly that they do this through the fair and proper treatment of their employees. He also indicated that employers needed to constantly change their rules for equity in order to promote fair application of equity. Mr Kettledas highlighted the rationale for the Code, stating that its objective was to provide a framework for employers on the integration of EE principles into Human Resources practices and policies in all phases of employment, from commencement of employment right through to its termination.  The commencement of employment comprised job analysis and description, attraction, recruitment processes, induction, probation and psychological and medical assessments.

He went on to identify and elaborate on these components. Job analysis would determine the specific content of a job by analysing it according its functions, tasks and processes. Thereafter job descriptions based on the relevant information could be developed. It was important that a job description be clear on the functions and requirements of the job. The way it was written was of utmost importance as it would either promote or undermine EE.

Some of the attraction proactive outreach mechanisms were highlighted. They included liaison with employment agencies who kept a record or database of workers from the designated groups, head-hunting, the positioning of employers as the employers of choice and the establishment of relationships with tertiary institutions.

Recruitment and selection was of utmost importance in the achievement of numerical targets. Both recruitment and selection should be reflective of the job requirements and competency specifications. Both would take place through advertising of the posts, short listing and interviews.

Induction was said to be an opportunity for employers to emphasise their ethos and value system

Probation was seen as a means to either undermine or support employees from designated groups. It was emphasised that employers should not patronise employees from the designated groups.

With regard to psychological and medical assessments, it was noted that employers must ensure that all their assessments were fair, valid, reliable and non-discriminatory.

The “During Employment” phase must assess conditions of employment, job assignments, remuneration, skills development, harassment, confidentiality and disclosure, performance management, promotion and transfer, retention and discipline and grievances. With regard to conditions of employment, it was noted that employers could not discriminate unfairly in relation to access to benefits, facilities and so forth. It was also noted that certain prohibited factors could not be used to determine the eligibility for benefits. Remuneration would be set on the basis of the job requirements based on the equal work for equal pay objective. The need for a non-discriminatory performance system was highlighted and job assignments must not be subjectively given.

Mr Kettledas said that performance management should not be a punitive process but one that would promote clear goals for further growth. Emphasis was placed on the linkage between skills development and the training of designated group employees. It was noted that the promotions and transfers in the designated groups would be beneficial for the attaining of numerical goals. It was also noted that promotions should be appropriate, and should not set employees up for failure.

The confidentiality of an employee’s personal information would have to be promoted and employers should only collect employee information of a confidential nature if this was absolutely necessary. Disclosure of such information should only occur with the consent of the employee.

Harassment was discussed and described as a catalyst in the promotion of a hostile working environment. It was noted that all employers should try to avoid workplace harassment and should ensure that there were rules prohibiting harassment in the workplace. It was noted that the anti workplace-harassment rule should be put into formal written polices, such as Codes of Conduct. Harassment was noted as a serious workplace offence, and should be subject to disciplinary measures which could result in dismissal.

Mr Kettledas noted that the manner in which workplace grievances were dealt with could also be a catalyst to promote conflict if not in compliance with EE policy. The objective of disciplinary procedures should be to use measures such as counseling or warnings. The employer should also try to incorporate creative solutions into disciplinary action.

The ending of employment was inclusive of exit interviews and the termination of employment. An exit interview was viewed as a means for employers to decipher barriers to growth of the organisation

Code of Good Practice on the employment of people with disabilities: Department of Labour briefing
Mr Niresh Singh,
Manager: Employment Equity Policy Development, DOL, briefed the meeting on the Code of Good Practice on the Employment of People with Disabilities (the Disability Code)
He noted that that disability rights were intended in part to eradicate unfairness towards the disabled. The objective of the Disability Code of Good Practice was to assist employers to understand the roles they needed to play in the implementation of non-discrimination and affirmative action (AA) measures towards people with disabilities.

It also aimed at providing disabled employees with an opportunity to advance in the workplace. The context of disability discrimination was discussed. Mr Singh highlighted the Employment Equity definition of people with disabilities. The term Reasonable Accommodation (RA) was discussed, and he highlighted when an employer was obliged to provide RA.

Unjustifiable hardship was noted to be an action that required considerable expense or hardship on the part of the disabled person. It was noted that job specifications should not exclude people with disabilities. He placed emphasis on the correct use of job advertisements and application forms, including the identification of an applicant on the forms.

Mr Singh said that interviewers should not assume any abilities of a disabled person and the interview should play a pivotal role in focusing on the applicants’ abilities, as opposed to his or her disability.  Testing and assessments would only be done on applicants with disabilities if it were deemed as fair, valid and reliable. Applicants with disabilities could decline being tested if the test was exclusively for them as opposed to any other applicant.
 
Irrespective of any employees’ disability, it was noted that they at all times needed to be actively involved in the advancement and planning of their career. It was noted that the employer should ensure that training was accessible to the disabled person and that if an external stakeholder was used, the employer had the duty to ensure that the external accommodation and accessibility was adequate.

The requirements of an employer in the event of an employee becoming incapacitated were noted. Performance assessment indicators to help bridge the gap were noted.

It was decided that employers should assist with any relief sought under the
Compensation for Occupational Injuries and Diseases Act (COIDA) and Occupational Diseases in Mines and Works Act (ODIMWA), the Road Accident Act (RAA) and Unemployment Insurance Act (UIA).

The disclosure of information about an employees’ disability required written consent. The briefing highlighted the imperativeness of adequate awareness and training to promote equity towards people with disabilities.

Code of Good Practice on key aspects of HIV/Aids and employment: Department of Labour Briefing
Mr Singh delivered the briefing on the Code of Good Practice on key aspects of HIV/Aids and employment (HIV Code) He identified HIV/Aids as a catalyst to the degeneration of society through serious unemployment, socio-economic and human rights implications. He added that the disease saw no race, age or gender limitations.

The main obstacle facing society in the disease was indeed the stigma attached to it. Its impact was far reaching in the work place, with issues such as absenteeism, high mortality rates and low staff morale. The aim of the HIV Code was to introduce good practices in response to the impact of the pandemic. Another aim of the Code was to serve as an employer guidance platform.

It was noted that no employer had the right to ask an employee to undergo a HIV test and the only way this could be done was through authorisation of the Labour Court, or if the employee gave consent. All persons living with HIV/Aids had the right to not disclose their status. Employers also had a responsibility to assess their workplace and identify the risk of HIV transmission in that workplace.

It was noted that no employer had the right to discriminate against an employee who was HIV positive when allocating benefits, and that any limitations placed on a HIV positive employee’s benefits had to be legal. No employee had the right to dismiss an employee on the grounds that he or she was HIV positive and any termination had to be compliant with the Labour Relations Act (LRA).

An integrated strategy was required for the effective management of HIV/Aids in the workplace. Another part of the structure or framework for managing HIV/Aids in the workplace was the mainstreaming of HIV/Aids activities into the main function of the business. The development of a gender sensitive programme was also discussed.

Mr Singh summarised that several factors would be necessary for an effective HIV/Aids management strategy in the workplace. These would include the creation of a committee that dealt specifically with HIV/Aids in the workplace, the development of an information database and a policy for the pandemic in the workplace. Legal obligations must be complied with, and the employer should make available planning strategies and skills development opportunities, wellness programmes, management of employee benefits and effective evaluation and monitoring. In conclusion Mr Singh highlighted the impact of HIV and Aids on society. 

Employment Equity Plans: preparation, implementation and monitoring: Department of Labour Briefing
Ms Ntsoaki Mamashela, Project Leader, DOL, briefed the workshop on the preparation, implementation and monitoring of the Code and EE plans.

She indicated that the EE plan should have annual objectives, affirmative action (AA) measures, an annual time table, numerical goals for the achievement of equity representation, internal dispute resolutions and an evaluation and monitoring protocol. The plan should also include HIV/Aids programmes as well as providing for effective staff who should be responsible for monitoring. Monitoring should also be a function of the managerial staff. 

The duration of the plan should not be shorter than one year or longer than five years.

Ms Mamashela emphasised that the three phases for EE plans were preparation, implementation and effective monitoring. The preparation stage included the assignment of responsibility, effective communication and awareness training and key consultations. The implementation phase required the taking of corrective measures, time frames, ,the correct allocation of resources, and planned communication.

Assignment of responsibilities should be made by an employer to permanently–employed senior managers, and they had to report directly to the Chief Executive Officer (CEO) on all EE matters. The managers also had to be given the necessary mandate and authority, and had to have a substantial budget. All employees had to be consulted on the submitting of a report to the Department of Labour, the implementation and preparation of the EE plan and the conducting of a workplace analysis.

Employers with over 150 employees had to submit their first EE report within the first six months of being designated, and thereafter submit reports on an annual basis on the first working day of October. Employers with less than 150 employees had to submit their first report within twelve months of being designated, and then on the first working day of October for every evenly-numbered year. The EE report had to be informed by an EE plan. The forms had to be filled in correctly and the employer must ensure that all relevant areas were covered.

Discussion on Employment Equity (EE) Issues in South Africa
The broader perspective and legal framework of Employment Equity (EE) were then discussed by the Workshop, highlighting that this included requirements from the Constitution, EE regulations, Codes of Good Practice and the EE Act. It was noted that the equality rights were enshrined in section 9(2) of the Constitution.

The delegation remarked on the purpose of the Employment Equity (EE) Act, stating that equity in the work force could only be achieved if equal work opportunities were promoted and if unfair discrimination was eliminated. The Act therefore included aspects of redressing past discrimination. The establishment of the Commission for Employment Equity (CEE) and its constituents. The functions of the CEE were discussed. It was noted that the CEE’s key objectives were to advise the Minister on regulations, Codes of Good Practice, implementation of the Act, equity matters and policy.

It was noted that EE regulations were legally binding, and provided for prescribed legal forms, and these regulations played an integral role in the regulation of the administration of the Act.

Codes of Good Practice were not legally binding in the same way as the Act, but would be considered by the judiciary in the interpretation of specific areas of the Act.

Those who practiced Affirmative Action in the work place were highlighted. It was noted that these practitioners were inclusive of designated employers (employers with fifty employees, but with a turnover threshold equal to or exceeding that set out in Schedule IV of the EE Act). It was noted that non-designated employers would also be able to comply voluntarily. All employers, no matter whether designated or not, were required to stop unfair discrimination in the workplace. Unfair discrimination included any discrimination on the grounds of pregnancy, race, disability, gender and HIV status.

It was noted that reference was also made to designated groups, which were inclusive of all black people, women and the disabled.

Legal proceedings, monitoring and enforcement were then discussed, with much emphasis being placed on the role and authority of labour inspectors. These labour inspectors, in order to promote compliance, had the authority to secure a written undertaking from an employer in regard to future compliance.  If the employer did not adhere to the undertaking, the labour inspector could issue the employer with a compliance order. If an employer then did not adhere to the compliance order, this would result in the referral of the non-compliance to the Labour Court for adjudication.

The Department noted that at the moment there was a high degree of non-compliance by employers, and that parliamentary support was of utmost importance. It was highlighted that the compliance and enforcement structures needed to be strengthened in the Act.

The meeting was adjourned.


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