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Employment equity bill criminalises offenders

Turnover linked penalties….

Fines according to turnover are now proposed for equity employment breaches, the department of labour (DOL) having now briefed Parliament on the Employment Equity Act (EEA) Amendment Bill, which was tabled during the last session of Parliament and which incorporates such proposals.

The new fines, which according to DOL have been unrevised for a number of years, are linked as before in the same way to breaches in employment equity in terms of the Employment Equity Act but have now been linked to the balance sheet, meaning  major increases in the size of penalty for medium and big business in the case of departure, such being in terms of  decisions made on the recommendation of DOL inspectors.

Hearings before Parliament from business were expected to be vociferous in their response and indeed so far have been. Business and industry have been facing a raft of new and more radical amendments to existing labour laws, indicating both a move from the voluntary nature of BEE participation through charters to a legislative background and criminalisation if labour policy is not met or purposefully avoided.

A whole package of law

The briefing of this, the fourth of the new labour laws following the Employment Services Bill, was presented to Parliament by the department’s equity director, Ntsoaki Mamashela.   The Labour Relations Amendment Bill, the Employment Services Bill and the Basic Conditions of Employment Amendment Bill have all been endorsed by the Nedlac process, following approval by cabinet; the Labour Relations Act changes failing to pass in the last parliamentary session due to lack of a quorum but subsequently now approved and to become law.

Ms Mamashela assured business that they had “nothing to fear” if they followed the basic rules which were now well-known throughout the country. The proposed amendments demand that the proportions of demographics on an employer’s staff role reflect the demographics of the territory in which the business or industry operates and apply to companies with 150 employees or more.

Mirroring your location

The Bill makes it quite clear that the proposals refer to “black” people amongst  designated groups and also states unambiguously “where under representation of people from designated groups has been identified by the analysis, the numerical goals to achieve the equitable representation of suitably qualified people from designated groups within each occupational [category and] level in the workforce, the timetable within which this is to be achieved, and the strategies intended to achieve those goals are not met”, the Bill states, then the minister may apply to the labour court for a fine to be imposed.

The fines are extensive, particularly where previous convictions are concerned, and are capped at nearly R3m. The department of labour  is also, the proposals state, given the right to refer those cases who have not made returns, or made false returns in respect of their employment equity registers, directly to the labour courts.

The results of public hearings will first be summated and responded to by the department and then debated by the portfolio committee.

Refer previous articles in this category
http://parlyreportsa.co.za//uncategorized/business-and-government-miles-apart-on-labour-laws/
http://parlyreportsa.co.za//cabinetpresidential/labour-nobody-at-top-biting-the-bullet/
http://parlyreportsa.co.za//cabinetpresidential/parliament-delays-process-on-labour-relations-bill/

Posted in Labour0 Comments

Oil industry stakeholders to meet on B-BBEE audit

Chairperson Sisi Njikelana told parliamentarians and those who attended the portfolio committee of energy meeting on the audit findings of the Liquid Fuels Charter (LFC), that all stakeholders in the industry will  meet to discuss the way forward  to improve the black empowerment stake in the oil industry.

His comments followed a presentation of the audit by Moloto Solutions by Tseliso Maqubela, deputy director general hydrocarbons for department of energy (DoE) together with Ms Gosetseone Leketi, the DoE liaison officer who had worked on the audit. It is understood that that such a meeting has taken place and that procurement by the oil industry was a major discussion point.

Maqubela told parliamentarians that DoE could now proceed on the subject of black empowerment within the oil industry without just anecdotal information but with extra basic facts and home truths garnered in an exercise, which, with the exception of a few companies, was marked by good co-operation amongst the industry.

DoE had placed the audit findings on its website a week earlier, the original survey of the LFC being commissioned in 2010 and its findings being only up to that date. The document was placed before cabinet in April this year, the audit having been completed by Moloto Solutions as late as April 2011.

In the light of the fact that the LFC had an expiry date of 2010, the purpose of the audit, as explained by the minister of energy at the time, was to establish the level of compliance with the BEE factors laid out in the charter before renewal was negotiated if it was to be, the industry not having its own B-BBEE sectoral agreement through the department of trade and industry.

DoE in its recommendations following its own summation of the audit suggested that a sectoral B-BBEE code be developed through DTI after agreement at the recommended stakeholder’s meeting and that the issue of penalties for non-compliance should be debated.

However, Sisi Njikelana said that his approach to penalties was that they were not going to be “important” if all co-operated and that DoE would not necessarily have to legislate for this necessarily. But he reminded all present that “we do not have another ten years like before.” There had to be some very urgent improvements, he said.

“We need a systematic way to track demographics but in order to get meaningful change” all involved have to apply their minds”, he said. An official ongoing monitoring body that was more effective and constantly updated progress amongst oil companies was suggested by Njikelana.

In presenting their views on the report, Gosetseone Leketi of DoE said that oil industry participants had agreed to the application of the LFC in its industry ten years before BEE legislation was applied in South Africa generally.

Presumably now DoE would have to consider how to amend the LFC after negotiation with oil industry participants or alternatively consider a separate document along the lines of other sector industry BEE charters, studying the success and failure of the separate oil industry scorecard factors in South Africa and its verification system to date.

Concern was expressed by Moloto Solutions in the audit that the department of trade and industry, with its current work load, could take on another sector industry BEE draft.

In very broad principle, Moloto’s audit findings indicated overall compliance with the charter at 48% with black shareholding averaging at 18.91%, albeit narrow-based, with a very low participation by black women as shareholders. Only one company has met the LFC target for shareholding control which participants at the meeting assumed to be Total whose French shareholders had made a major sale to black owners upon exiting.

As far as the audit was concerned generally, Leketi said skills development areas stood out with a poor record, as did employment equity and also preferential procurement in certain aspects. On the issue of procurement, the audit findings indicated considerable effort by Moloto to establish the background and factors behind the procurement of crude oil and the mechanisms involved, which they had clearly found difficult to establish in some cases due to competitive factors.

Leketi noted that this was an area where black employees had to gain more control and experience, according to Moloto Solutions. Leketi said that this was a DoE view.

The report separates, as a distinct entity, employees who are “foreign nationals” and Leketi pointed to the difficulty some companies had in reporting structures on product issues where responsibility and organogram management structures were constantly changing without any reference to the particular trading conditions in any country.

For example, Maquebela subsequently said on this issue in discussions later, “Suddenly an international company with its head office in Hong Kong could decide that Africa would report through Egypt for, say, LPG, he said, and the management in that area would have no understanding of (B-BBEE) conditions applying in this country”.

Leketi, in presenting the report, said the audit stated up front that that punitive measures should be designed against companies that do not make “the 25% cut” and that “some way” has to be found the develop supportive cultures for BEE within company behavioural patterns, especially in line management.

Companies, the report said, should place on notice boards employment equity achievements and targets and companies should urgently upgrade their black recruitment programmes, especially amongst black women  and improve the overall knowledge base of the their own staff at all levels regarding BEE employer requirements and targets if achieved or not achieved.

The findings were specific, Leketi said, on the need for “employee capacity building” at all levels with reward and achievement acknowledge programmes to accompany skills acquisition, especially in “scarce skills” areas.

Maquebela stressed in his comments that in his view, on the aspects of skills training which was so absent in most companies (particularly scarce skills needed in cleaner fuel development, he said) that the principle of “learning by doing” should be emphasised and that “internationals” should take a lot more advantage of their ability to send employees overseas on training courses.

The meeting concluded by chairperson Sisi Njikelana saying that bearing in mind the date of the findings, “the industry must have another platform to express itself”.

Tseliso Maquebela agreed with this route but warned that he rejected those findings where oil companies had said during the audit that they were not aware of the conditions that they or their employers had to meet with regard to black empowerment.

“Nobody could be in this industry and not be aware of exactly where they stood in regards to targets, timings and the details of LFC requirements in addition to BEE regulatory aspects.”    He rejected any idea that employees interviewed should have been ignorant of why the audit was being conducted and what the onuses were upon on their employers.

He stated however that he agreed with the findings of the report that there was great ignorance generally amongst employees of the urgency behind the need for industry to re-organise along BEE lines and noted the comments in the audit that much appeared to be done in an atmosphere of haste after initial interviews had been conducted.

 

Posted in BEE, Cabinet,Presidential, Energy, Finance, economic, Fuel,oil,renewables, Justice, constitutional, Public utilities, Trade & Industry0 Comments


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