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Presentation on theme: "REGULATORY FRAMEWORK: ADAPT OR DIE ATTIE BOTES (COMPLIANCE & OPERATIONS EXECUTIVE) APSO Recruiter Indaba."— Presentation transcript:


2 Overview 1. Protecting your fees 2. Protection of Personal Information Act (POPI) 3. Employment Services Act


4 Protecting Your Fee 1. Fee Dispute Guidance Note 2. Codes of Professional Practice: Candidate Service 3. Codes of Professional Practice: Client Service 4. Common law contract?

5 Fee Dispute Guidance Note Step 1: That the member interviewed the Candidate; Please provide the relevant date(s) of the interview and the manner in which the candidate was interviewed: i.e. telephonic or face-to-face, in addition to how you sourced the candidate i.e. a job-portal or on your existing database; Step 2: That the member obtained the Candidate’s permission to release their details to: (a) that specific Client for, (b) that specific vacancy; Under this step, you would need to provide proof that you disclosed both the name of the client and the vacancy (by position) to the candidate. It is vital that documentary evidence or proof be provided to show that the candidate was aware of both these requirements and consented to you acting on their behalf; Step 3: That the member obtained the Client’s acceptance of the Candidate as an applicant for that vacancy. The Client’s acceptance is considered to have taken place when the Client acts upon the introduction by requesting an interview with the Candidate introduced by the member. You are required to provide proof of your interaction with the client. This may include, but is not limited to proof to show interview dates and times as well as any offers extended to the candidate and negotiations surrounding this process and invoices sent and settled (where relevant).

6 Codes of Professional Practice: Candidate Service 1. Members may not, directly or indirectly, charge any fees to candidates. 2. Members may not enter into any contracts or agreements containing any form of Candidate Liability Clauses with candidates. 3. Notwithstanding the aforementioned a Member may institute legal action against a Candidate for damages for unlawful actions of the Candidate. 4. Members must ensure that any agreements, contracts, application and indemnity forms signed by a Candidate are clearly explained to the Candidate to ensure that they are understood and entered into openly and transparently and that a copy thereof is given to the candidate. 5. Notwithstanding the above, a Member may enter into an exclusivity or sole mandate agreement to represent a Candidate providing that such agreement shall be limited to specified Clients to whom applications must be submitted within seven (7) days. 6. Candidate information legitimately obtained by the Member must be kept confidential, used exclusively for the purposes of recruitment, with specific precautions to avoid jeopardising the Candidate’s current employment. 7. All Candidate information gathered by Members must be dealt with in accordance with applicable legislation at all times. 8. Members must act responsibly and lawfully and inform Candidates that Client information provided as part of the recruitment process must be treated confidentially. 9. Candidate information may not be shared with any third party without the express permission of the Candidate unless required to do so by law. 10. Members may not submit details of any Candidate to any Client without first: 1. Disclosing to the Candidate the name of Client, specific position, key performance areas, hours, salary and benefits, and 2. Obtaining the Candidate’s express permission to represent them at that specific Client for that specific vacancy

7 Candidate Service Cont 1. Members may not discriminate unfairly against any Candidate at any time in the recruitment process, except when obliged to do so in terms of prevailing legal requirements, regardless of ethnic origin, colour, gender, age, religion, political opinion, nationality, social origin, sexual orientation, or any other distinguishing characteristics. 2. Members must conduct an interview with a Candidate prior to submitting any Candidate information to the Client, except if specifically contracted to the contrary. 3. Candidates have the right to be interviewed by a Consultant of experience and/or qualification appropriate to the status of the assignment and the seniority of the Candidate. 4. All interviewing must be conducted in such a manner as to preserve the Candidate’s privacy, confidentiality and, as far as possible, anonymity from other Candidates. 5. Regardless of the method used to interview, Members must obtain from the Candidate all relevant information pertaining, but not limited to their personal record, employment history, qualifications, skills, experience, and career requirements as are necessary to ensure proper matching. 6. Members must exercise due diligence to ensure accuracy of all Candidate information. 7. Any tests including, but not limited to, skills, psychometric and medical, may only be performed with the express permission of the Candidate and in accordance with applicable legislation and accepted best practice. 8. Members must advise Candidates who have been submitted to the Client of the result of their application within seven (7) days of the assignment being concluded. 9. Members must advise all Candidates who have applied for specific vacancies of the outcome of their application as soon as a decision has been made by the Member. 10. Reference checking must be undertaken discreetly, in a manner that will not endanger the Candidate’s present employment, and only with the express permission of the Candidate. 11. Credit, criminal, qualification and employment reference checks must be taken in strict accordance with applicable legislation. SEE ALSO “CANDIDATE NOTIFICATION”

8 Codes of Professional Practice: Client Service 1. Members must ensure that all Clients are furnished with detailed Terms and Conditions of Business that clearly include, but not limited to: 1. Fee structure; 2. Guarantee policy; 3. Verification policy; and 4. Recruitment methodology. 2. All agreements pertaining to the Member-Client relationship should be reduced to writing and agreed to prior to the commencement of the assignment. 3. In the absence of any signed agreement Members must attach a copy of their Terms and Conditions of Business with every CV submission. 4. Any failure to fulfil any part of the agreed terms and conditions of service must be communicated to the Client immediately. The Member must rectify same, or come to an agreement with the Client. 5. Members must obtain detailed assignment specifications from the Client for accurate service delivery. 6. Members must exercise due diligence to ensure quality of all contracted obligations, for example, candidate information supplied should be verified and accurate. 7. Members must include, on the CV/resume submitted to the Client, the date and method of interview. 8. Client information must be kept confidential and exclusively used for the purposes of service delivery. 9. To protect the confidentiality of candidate information Members must include the following wording on all CVs/resumes: 10. “All information concerning the Candidate is furnished to the Client in strict confidence. The Client may not divulge this information to any third party, nor contact the candidate’s present employer, nor take references without prior consultation with the Member.” 11. Members must not, directly or indirectly, approach a Candidate currently in a position placed by them with the intention of securing them alternate employment, unless the Candidate has expressly indicated, of their own accord, that they are back in the market. 12. Any potential conflict of interest must be disclosed to the Client before commencement of the Assignment or Candidates being referred.

9 Common law Contract A contract comes into existence when two or more willing parties agree to bind themselves to certain duties towards each other or a third party for a specific goal or purpose. Parties have the right and freedom to contract with whomever they please. You may not contract outside of the law. When does an enforceable recruitment contract come into existence?:  Who gets the CV there first?  Action/intention is required either expressly or implied.


11 Employment Services Bill Purpose of the Act is to regulate the PEA Industry It applies to both temporary and permanent staffing agencies Under the definition of a PEA (as current) it will also extend to career counselors and Job Boards, in fact any entity or person performing any employment service (except internal recruitment services). The Act will require a PEA to register with the DOL (pay a registration fee) and comply with the requirements as set out in the Act and Regulations. Current PEA certificates will be exempt from the registration fee until the next renewal (2years) See “Surviving a DOL audit”.


13 Credit Amnesty  On 26 February 2014 the DTI published THE REMOVAL OF ADVERSE CONSUMER INFORMATION AND INFORMATION RELATING TO PAID UP JUDGEMENTS REGULATIONS, 2014 (“the credit amnesty”) which came into effect last week on the 1 st of April 2014.  This removal is applicable to all consumers and commercial entities as defined by the NCA  SARS judgments are not removed as they are seen as criminal offences  The Amnesty seeks to create the incentive for consumers to re-pay their debt  The same debt cannot be relisted. So company cannot relist a person for same account once removed  Amnesty DOES NOT change anything about loans themselves. Even if a person qualified for amnesty, they are still just as responsible for their loans as you were before.  Amnesty does NOT forgive, pardon or write off your debt. It NEITHER reduces the debt owed NOR changes the terms of the loans.


15 Purpose of POPI POPI is intended to promote the protection of personal information processed by public and private bodies; To introduce information protection principles to establish minimum requirements for the processing of personal information; To provide for the establishment of an Information Protection Regulator; to provide for the issuing of codes of conduct; To provide for the rights of persons regarding unsolicited electronic communications and automated decision making; to regulate the flow of personal information across the borders of the Republic.

16 What qualifies as personal information? Information relating to race, gender, sex, pregnancy, marital status, nation, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person. Information relating to education or the medical, financial, criminal or employment history or the person. Any identifying number, symbol, e-mail address, physical address, telephone number or other particular assignment to that person. The blood type or any other biometric information of that person. Personal opinions, views and preferences of that person. (References) Correspondence. Views or opinions of other person about that person. The name of the person. The qualification is that if the information would reveal information about that person it is personal information.

17 Special personal information:  Processing of special personal information is prohibited subject to certain exclusions.  A higher degree of protection should be afforded to this type of special information.  Special personal information:  Religious or philosophical beliefs  Race or ethnic origin  Trade union membership  Political opinions  Health  Sexual life  Criminal behaviour

18 POPI Principles Principle 1: Accountability The person or business/entity that holds personal information must give effect to the principles for the protection of personal information as set out in the Act. Principle 2: Processing Limitation Personal information must be collected directly from the data subject and may only be processed with the consent of the data subject, or where it is necessary to comply with a legal obligation, public law duty or contractual obligation. Principle 3: Specific Purpose Personal information must be collected for a specific, explicitly defined and legitimate purpose. The data subject should be aware of the purpose for which the information is collected, and who the likely recipients of the information will be.

19 POPI Principles Principle 4: Limitation on Further Processing Personal information may not be processed further in a way that is incompatible with the purpose for which the information was collected initially. Thus, if information was processed for the purpose for which it was collected, it may only be processed further if it can be shown that the purpose for the further processing is compatible with the original purpose. Principle 5: Information Quality The person or business/entity that determines the purpose and means for processing personal information must ensure that the information is complete, not misleading, up to date and accurate.

20 POPI Principles Principle 6: Transparency / Openness Personal information may only be collected if the Commission was notified. Also, where personal information of a data subject is collected, the person or institution responsible for such collection must ensure that the data subject is aware of:  The fact that the information is being collected;  The name and address of the person or institution collecting the information;  Whether or not the supply of the information by that data subject is voluntary or mandatory and the consequences of failure to reply; and  Where the collection of information is authorised or required under any law, the particular law to which the collection is subject.

21 POPI Principles Principle 7: Security Safeguards The Act requires the implementation of technical and organisational measures to secure the integrity of personal information, and to guard against the risk of loss, damage or destruction of personal information. Personal information must should also be protected against any unauthorised or unlawful access or processing. Principle 8: Participation of Individuals A data subject is entitled to the particulars of his or her personal information held by any person or business/entity, as well as to the identity of any person that had access to his or her personal information. The data subject is also entitled to require the correction of any information held by another party.

22 Essential Components to Effective POPI Implementation 1. Establish standard Operating Policies and Procedures 2. Train your people 3. As far as possible integrate and automate standard templates and responses 4. Monitor and manage data management system 5. Create secure IT infrastructure

23 Summary Its about consent management: 1. What personal information do we collect? 2. What will the information be used for? 3. Who will have access to the information? 4. How and where will the information be kept? 5. How will the information be safeguarded?


25 Regulatory Environment BCEA amendments  No contestation of compliance orders EEA amendments  Equal pay for work of equal value LRA amendments  Strikes (balloting and LC intervention)  Section 198 “Deeming” clause

26 Permanent Recruitment Its no longer about sending CV’s The key differentiator is the value proposition in your service offering  Professional  Legally compliant  Mitigation of risk  Alternative dispute resolution  Expert service



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