Employee consultation: principles and practices
Employers serious about pursuing employment equity initiatives should re-evaluate their current strategies, and more specifically, how effective their employment equity committees have been. Future reporting will place greater emphasis on the consultation requirements with employees in identifying affirmative action measures and setting aggressive numerical targets.
The duty to consult with employee representatives is an enforceable one in terms of the Employment Equity Act, and an employer may be required to give a written undertaking that it will, within a specified period, consult with employees.
This article sets out the principles and practices to follow to move beyond mere trite compliance (paper compliance) and to implement both the letter and spirit of the law.
2. Department of labour (DoL) code of good practice
The Department of Labour (DoL) User Guide 2 provides the following pointers for meaningful consultation to be set in motion.
# When to start consultation?
Consultation should start as early as possible in the process
# How should this happen?
A consultative forum should be established or an existing forum used if this is appropriate, for example, an existing diversity committee, affirmative action or employment equity forum.
# Who should be included?
All stakeholders such as:
>> Representative trade unions
>> Employee representatives from:
= Designated groups
= Non-designated groups
= All occupational categories and levels
= Senior management, including the managers assigned with responsibility
# What is proper consultation?
Proper consultation includes:
>> 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
>> Adequate time allowed for each of the above steps.
>> Ongoing interaction with and accessibility to senior management with regard to employment equity issues is critical to the success of this process.
# What would be considered relevant information?
>> Relevant information could include that relating to:
- The particular business environment and circumstances of the employer
- The relevant economic sector or industry
-Relevant local, regional, and national demographic information about 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
- Employment policies and practices of the employer.
Relevant information is not limited to information supplied by the employer. Employees may be in a position to provide employers with valuable information that could be considered in developing an employment equity plan.
# How often should the consultative forum meet?
This will vary from employer to employer depending on size, sophistication, existing levels of diversity, and what has already been accomplished in the workplace with regard to employment equity. Meetings should, however, take place regularly and employers should allow time off for these meetings.
3. Flexibility in the requirement to consult.
The Act introduces elements of flexibility in its requirement that employers consult on the organisation's employment equity plan e.g. section 16. (1) States that a designated employer must take reasonable steps to consult, and attempt to reach agreement on the matters referred to in section 17.
Whether an employer has complied with its obligation to consult, namely, that is has "taken reasonable steps to consult" and "attempted to reach agreement" is subject to investigation by a labour inspector and will give rise to much debate between employers and trade unions, many of which will be decided upon in the Labour Court.
What constitutes "reasonable steps" and whether the employer has "attempted to reach agreement" is essentially a factual enquiry and will depend on the circumstances peculiar to each employer. It is however, probable that in time, Regulations and Codes of Good Practice will be developed which will provide general guidelines for employers.
4. The distinction between consultations, negotiations and bargaining
The legal debate surrounding the distinction between consultations, negotiations and bargaining is a valid one. However, often it is more a debate on limiting an employer's need to discuss company initiatives with employees or their representatives.
In the context of employment equity, an employer will be required to engage in consultations with employee representatives on areas and issues which traditionally fall within the scope of so-called "management prerogative". Many of these, such as pay equity, job grading, affirmative action, setting numerical goals, will give rise to heated debate.
Relying on legal distinctions between requirements to negotiate. or to consult is not indicative of the business’ intent on implementing employment equity - it may be good legal practice but not necessarily best practice human resources.
4. Best practice: principles of consultation
>> Consultation is not synonymous with consensus. It is, however, a process that permits and promotes the two-way flow of ideas and information among all sectors of society and between them and the government. The process ensures that employees are aware of and consulted about options that ultimately will become decisions affecting their lives.
>> Effective consultation is based on principles of openness, transparency, integrity, and mutual respect.
>> As with the communications function, consultation is a shared management responsibility, that is, one that is the responsibility of every manager in the organisation.
>> As with all management responsibilities, satisfactory consultation requires good planning, research, analysis, advice and feedback.
>> Consultation with employees or their representatives is intrinsic to effective policy development. It should be a first thought, not an after-thought.
>> To be effective, consultation must be based on openness, trust, integrity, mutual respect for the legitimacy and point of view of all participants, and transparency of purpose and process.
>> The outcome of consultation should not be predetermined. Consultation should not be used to communicate decisions already taken.
>> The initiative to consult on a particular matter may come from the employer or employees -- each should respond as constructively as it can.
>> Whenever possible, consultation should involve all parties who can contribute to or are affected by the outcome of consultation.
>> Participants in a consultation should have clear mandates. Participants should have influence over the outcome and a stake in implementing any action agreed upon.
>> Some participants may not have the resources or expertise required to participate. Thus, financial assistance or other support may be needed for their representation to be assured.
>> Effective consultation is about partnership. It implies shared responsibility and commitment: a clear, mutual understanding of the issues, objectives, purpose, and expectations of all parties is essential; the agenda and process should be negotiable; any constraints should be established from the outset.
>> Participants should have a realistic idea of how much time a consultation is likely to take and plan for this in designing the process.
>> All participants must have timely access to relevant and easily understandable information and commit themselves to sharing information.
>> Effective consultation will not always lead to agreement; however, it should lead to a better understanding of each other's positions.
>> Where consultation does lead to agreement, whenever possible, participants should hold themselves accountable for implementing the resulting recommendations.
>> Effective consultation requires follow-through. Participants are entitled to know what use is made of the views and information they provide; they should also be made aware of the impact their ideas and involvement ultimately have on government decision-making.
5. Ensuring effective consultation
The Act does not set out any specific mechanism for consultations. These arrangements should be agreed between the employer and the employees. If there are consultation procedures already in place, these should be reviewed and updated as necessary to ensure that they continue to meet the requirements of the Act.
The most appropriate type of consultation method is best chosen at local level. There may be a national shop stewards committee, worker directors or a structure such as a workplace forum may already exist. These structures may be used as a model for the Employment Equity committee, or their effectiveness reviewed to identify failings in their operation.
Consultation arrangements should include balanced participation on the part of both employees and employers. As stated earlier, consultation is an ongoing process. Each successive employment equity plan is also subject to consultation.
# In the case of any consultation mechanism the following general points should be borne in mind:
>> The size and number would depend on such matters as the size of the organisation, the range and type of work activities. Influential members of management should be involved in order to emphasise the organisation’s commitment to employment equity.
>> The officers (chairman and secretary) should have the ability to ensure that it can function effectively. Business should be conducted in an ordered and structured fashion. Minutes, reports and submissions likelihood of having recommendations considered and acted upon more speedily. The officerships could be held by either side or rotated.
>> There should be regular meetings under a specific agenda which could as appropriate include items like the following:
(i) Progress report on the implementation of employment equity or task groups established to investigate particular matters.
(ii) Examination of the minutes and action plans since the last meeting.
(iii) Special consideration of any recent incident or workplace event which may undermine employment equity initiatives.
(iv) Practical equity suggestions or solutions from management or employees.
(v) Special activities such as "Equity Awareness Weeks".
(vi) Diversity training needs and reports on training courses attended by management or employees.
>> Members of the consultation mechanism would be entitled to rights such as time off for relevant training and carrying out their functions. In addition, the employer should provide reasonable facilities for meetings and the preparation of any minutes, submissions or reports, which may be necessary.
>> The effectiveness of any consultation mechanism is more likely to be ensured if the following points are taken into account:
>> Management should be encouraged to commit the necessary financial and staff resources.
>> Management and employees should be encouraged to participate.
>> Employees should be encouraged to communicate their views or complaints.
>> Sensible recommendations should be implemented without delay.
>> Line management should not ignore recommendations.
>> Members should be adequately trained and informed on employment equity matters.
>> Meetings should be held regularly in accordance with proper procedures.
>> The agenda for meetings should be varied and relevant.
>> Members should be prepared to consider new options or approaches to problems.
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