Labour Guides are prepared by Rael Solomon
of The Labour Consultancy.
This week, we take a break from dismissal. Jaco Malan of The Bargaining Council for the Catering industry talks about the role of bargaining councils in terms of collective bargaining and about the collective agreement which regulates the catering industry.
The new legislation and you:
Prepared for Labour Guides by Rael Solomon of The Labour Consultancy.
The Equity Act is one of four pieces of Labour legislation which have
radically changed the playing fields in the realms of employer- employee
The Employment Equity Bill
The Employment Equity Act is discussed in detail below. The other acts will
be discussed in detail in the coming weeks.
1. The Labour Relations Act 66 of 1995 which came into force and the 11
November 1996 has had an impact way beyond anything the pundits
anticipated. Some 45 000 cases have been referred to the Gauteng branch of
the CCMA alone- nearly double the figure projected.
This has lead to
administrative chaos with delays of up to a year in arbitration hearings.
With all its faults, some 80% of all cases referred are being settled as
the Conciliation stage. This high settlement can be attributed to the
process itself, competently trained commissioner's and employer fear of a
protracted arbitration- the name of the game often being cost
2. The new Basic Condition of Employment Act which governs the statutory
rules of the Department of Labour comes into effect on the 1st December
1998. This act radically effects the maximum number of hours that an
employee is permitted to work.
The conditions apply to all workers from
domestic servants to machine operators. A house wife will have to draw up a
contract with her domestic clearly defining her working hours, overtime,
allowance for board and lodging and all working conditions. Statutory
leave, sick leave, notice periods are also defined.
3. The Skills development Bill provides an institutional framework to
devise and implement national, sector and workplace strategies to develop
and improve the skills of the South African workforce: to integrate those
strategies within the National Qualifications Framework contemplated in the
South African Qualifications Authority Act, 1995: to provide for
learnerships that lead to recognised occupational qualifications; to
provide for the financing of skills development by mean of a levy-grant
scheme and a National Skills Fund; to provide for and regulate employment
services; and to provide for matters connected therewith.
Employers must step into new world
The Act's stated intent is to eliminate unfair discrimination, ensure employment equity and achieve a diverse workplace broadly representative of the country's demographic realities.
To achieve these ideals, a fine line has been drawn between fair and unfair discrimination, and one of the challenges will be to distinguish between the clauses of The Labour Relations Act, which specifically prohibit discrimination on any grounds, and those of the Employment Equity Act, which require fair discrimination to achieve employment equity.
Labour Minister Shepherd Mdladlana was quick to point out that while the Employment Equity Act had been pushed through parliament, the infrastructure to put it into effect was almost non-existent. It is estimated that some 10 000 inspectors will have to be employed and trained to monitor the implementation of the Act.
If the implementation of the Labour Relations Act and the resulting administrative chaos at the Commission for Conciliation, Mediation and Arbitration is anything to go by, the Labour Department and business are in for a rough time indeed.
The Employment Equity Act will heighten worker expectations to unachievable levels, in much the same way as the unfulfilled pre-election promises of 1994 are now coming home to roost. So why the rush to put a statute on the books with no means to monitor and implement it, or the opportunity to educate employers and employees alike as to its implications?
Politics is the name of the game. With education, health and security promises largely unfulfilled, unemployment at an all-time high, the rand collapsing and crime rampant, employment equity is seen by many politicians as the panacea for the masses.
But make no mistake, the Employment Equity Act, if carefully and properly implemented, has the potential to help improve productivity, educate a largely functionally illiterate workforce and meet worker aspirations.
Employers' equity plans are to be drawn up and registered with the Labour Department within six months for employers with more than 150 employees, and within 12 months for smaller employers. The plan will have to show how the employer intends to achieve employment equity in the workplace within one to five years.
The Employment Equity Act has teeth. It takes precedence over all other legislation, with the exception of the Constitution. Failure to properly implement the Act can result in fines of up to R900 000 for infringements, and companies not registered for equity will not be eligible to supply goods and services to the government, provinces, parastatals and many companies.
All designated employers will have to spend 1% of their wage bill on the education and training of their employees, but 80% of this levy may be claimed back if the training is performed by suitably registered trainers.
In their initial stages, equity plans should include adult-based education and training and specialised skills training. These steps serve the dual purpose of showing employees that employers are taking the equity legislation seriously, while it has also been shown that a functionally literate workforce increases productivity. A professional training programme combined with career path planning also leads to a loyal and efficient workforce.
Without a well-planned training programme, employers will have to resort to poaching middle and senior management. Many companies are also investigating the legalities of splitting themselves into smaller worker entities in an attempt to circumvent the legislation. These steps are likely to boomerang with incensed workers reporting doubtful practices.