HR Pulse

Leveraging technology in labour law, recruitment and related practices

As is the case in any other management function, human resources needs a strong technological foundation underpinning it if it is to be meaningful both in terms of human capital development and labour law compliance. Now, more than ever, employers need to be on their toes as they face increased statutory compliance demands emanating from the recent amendments to statute at NEDLAC.

Speed is crucial, as is access to accurate and legally defensible work-related information. Specific areas of liability that require technological assistance in defending legal claims include:

•     Unfair discrimination: it has been law since 1998 that one may not unfairly discriminate against individuals or groups on prohibited grounds such as race, gender, disability and the like.
  
  
•     Affirmative action: section 20 of the Employment Equity Act (EEA) provides that it would be unfair discrimination if employers, in an attempt to make reasonable progress, do not consider suitably qualified persons (SQP’s); this is defined further as a need to not only look at qualifications but also at prior learning, relevant experience and the period of time it would take for a designated person to achieve the competence level required; this dictates that a detailed job and person profile is required.
  
  
•     Unfair labour practices: section 186 of the Labour Relations Act (LRA) states that it would be an unfair labour practice if an employer engages in arbitrary practices in regard to the promotion, demotion, provision of training and benefits. Once again, career and succession planning that is linked to skills-related information is crucial.
  
  
•     Equal pay for work of equal value: It is a certainty that the principle of not only “equal pay” but the broader one of “equal treatment” will be legislated under the EEA and LRA. This means that financial and non-financial remunerative elements attached to positions and employees (and in some cases TES) must be available, analysed and managed in terms of mitigation of risk.
  
  
•     Reporting to job centres: The draft Employment Services Bill will also require that all employers report vacancies to the regional Department of Labour Centre and thereafter advise why the candidates referred to the said employer are not appropriate if not appointed.
  
  
•     General: There are many other existing and growing reporting requirements under, for example tax legislation, BBBEE and the like.

The point being made is that without a comprehensive and integrated technology system, employers will be unable to: defend themselves in adjudicative forums; to comply with reporting requirements and will be reactive in their dealings around these matters.

South African labour law has generally been hailed as being comparatively sophisticated internationally and, in many respects, this is the case. However, this is not the case when addressing the matter of equal pay for work of equal value. This principle is already well established in the EU and many other countries, but only just emerging in SA.

This principle requires that stakeholders within the employment relationship evaluate the position (job) itself in terms of job evaluation and related systems in order to get a sense of the value of the position. Thereafter, it is necessary to run an assessment of inequalities of pay for work of the same value and to establish whether there are justifiable reasons for these inequalities.

The Labour Relations Amendment Bill has stated that justifiable reasons for remunerative differences would include:

• Seniority, merit or length of service
  
  
• Quantitative and qualitative performance
  
  
• Any other appropriate criteria not prohibited under section 6 of the Employment Equity Act.

Another critical area emanating from this related to the situation where organisations use TES. The one matter of importance is that after 6 months of the temporary assignee of the TES working for the user organisation, the said assignee can claim equal remuneration for work of equal value when compared to the permanent employees of the client. In addition, the client must ensure that TES comply with the detailed registration and licensing requirements as well as ongoing reporting requirements under statute. These systems should be holistic and integrated, aligned with both statutory requirements and business strategy objectives.

The reality is that the above areas describe largely ‘demand-led’ considerations but there are also the ‘supply-side’ drivers that likewise require technological innovation and support. Harnessing social media effectively, communication, branding and engaging real time is fundamentally important.

In conclusion, it is unfortunate to note that by far the majority of organisations place the human resources technologies on the low end of the pecking order, resulting in poorly implemented HRIS. This will no longer be sufficient and will prejudice corporate governance and risk unacceptably.