Amended B-BBEE Codes of Good Practice A strategy for Built Environment Professionals 30 July 2014
01 INTRODUCTION
02 BEE IN CONTEXT
BEE in context 34118 11871 924 021 entities registered for VAT <R 10 m R 10 -R 50 m >R 50 m 878032
03 LEGISLATION
Preferential Procurement Policy Framework Act (PPPFA) 7 December 2011
PPFA Points for BEE Level B-BBEE Level 80/20 90/10 Level 1 20 10 Level 2 18 9 Level 3 16 8 Level 4 12 5 Level 5 8 4 Level 6 6 3 Level 7 4 2 Level 8 2 1 Non-Compliant 0 0
BBBEE Amendment Act 24 January 2014
Section 10: Status of Sector Codes 1. Every organ of state and public entity must apply relevant code of good practice in: – – – 2. 3. issuing of licenses, concessions developing and implementing a preferential procurement policy; determining qualification criteria for the sale of state-owned enterprises; developing criteria for entering into PPPs awarding of incentives, grants, and investment schemes in support of broad-based black economic empowerment. An enterprise operating in a sector with a S 9(1) Code may only be measured in accordance with that code An enterprise must report annually on their compliance to the Sector Council.
Section 1: Fronting Practice means a transaction, arrangement or conduct that directly or indirectly undermines or frustrates the achievement of the objectives of this Act; includes • black persons discouraged or inhibited from substantially participating in the core activities; • economic benefits received as a result of the BEE status do not flow to black people in the ratio specified; • legal relationship with a black person to achieve a certain BEE level without granting commensurate economic benefits expected; • an agreement with another enterprise to achieve enhanced B-BBEE status in circumstances in which – – significant limitations on identity of suppliers, service providers, clients or customers; – maintenance of business operations that are improbable having regard to resources; – terms and conditions not negotiated at arm’s length on a fair and reasonable basis;
Section 20: Offences and Penalties A person is guilty of an offence if that person knowingly • misrepresents or attempts to misrepresent the B-BBEE status of an enterprise; • provides false information to Verification professional / any organ of state. A BEE Verification professional or any procurement officer or other official of an organ of state or public entity who becomes aware of fronting and fails to report is guilty of an offence. Any person convicted of an offence is liable • to a fine or imprisonment for a period not exceeding 10 years or both; • in the case of an enterprise, to a fine of 10% of annual turnover. Any person and/or entity convicted of an offence shall be banned from transacting with any public entity, and shall be entered into the National Treasury register of tender defaulters.
04 NEW BEE CODES
Key principles • • Substance over form Compliance measured “at the Date of Measurement” Any misrepresentation OR attempt = fronting Any initiative to split, separate, divide to qualify as EME, QSE or Start-up = fronting
Application of the Codes 3. 1. 1 All Organs of State and Public Entities are measureable 3. 1. 2 All Measured Entities that undertake any economic activity with any organ of state or public entity are measureable
Priority elements Ownership Sub-minimum = 40% of Net Value points = 3. 2 points Skills Development (SD) Sub-minimum = 40% of total weighting points = 8 points Enterprise and Supplier Development (ESD) Sub-minimum = 40% of EACH of categories = 16 points Generics must comply with all 3 priority elements QSE must comply with ownership + 1 priority element
Application of the new Codes § Transitional period exists until 30 April 2015 § All sector Codes must be aligned by this time § An entity may elect to be measured on amended Codes of Good Practice or on existing Codes of Good Practice during the transitional period § An entity operating under a Sector Code must apply that code until 30 April 2015 – thereafter the Generic Codes if the Sector Code has not been aligned
New Thresholds EME QSE Generic New Thresholds < R 10 m R 10 – R 50 m > R 50 m BEP Thresholds < R 1, 5 m R 1, 5 – R 11, 5 m > R 11, 5 m 100% Black Owned Level 1 Get rated 51% - 99% Black Owned Level 2 Get rated 0% - 50% Black Owned Level 4 Get rated Affidavit / Certificate Evidence
New Scorecard Element Code series Current Weighting Proposed Weighting Ownership 100 20 25 Management Control 200 10 19 Employment Equity 15 Skills Development 300 15 20 + 5 Enterprise and Supplier Development 400 20 40 + 4 15 Enterprise Development Socio-Economic Development TOTAL 500 5 5 118
BEE recognition levels B-BBEE Status Current Qualification New Qualification B-BBEE recognition level Level One ≥ 100 points 135% Level Two ≥ 85 but <100 points ≥ 95 but <100 points 125% Level Three ≥ 75 but <85 ≥ 90 but <95 110% Level Four ≥ 65 but <75 ≥ 80 but <90 100% Level Five ≥ 55 but <65 ≥ 75 but <80 80% Level Six ≥ 45 but <55 ≥ 70 but <75 60% Level Seven ≥ 40 but <45 ≥ 55 but <70 50% Level Eight ≥ 30 but <40 ≥ 40 but <55 10% <30 <40 0% Non-Compliant
OWNERSHIP
OWNERSHIP Weighting Points Compliance Target 2. 1 Exercisable Voting rights in the hands of the following black people: 2. 1. 1 Black People 4 25% + 1 2. 1. 1 Black Women 2 10% 2. 2. 1 Black People 4 25% 2. 2. 2 Black Women 2 10% 2. 2. 3 Economic Interest of the following black natural people (broad-based groupings) in the Enterprise: 3 3% New Entrants 2 2% 2. 3. 1 Net Value 8 2. 2 Economic interest in the hands of the following black people: - black designated groups; - black Participants in Employee Ownership Schemes; - black beneficiaries of Broad based Ownership Schemes; or - black Participants in Co-operatives 2. 3 Realisation Points: TOTAL 25
What the research says about ESOPS In "The ESOP Performance Puzzle in Public Companies, " published in 2006 issue of the Journal of Employee Ownership Law and Finance, Robert Stretcher, Steve Henry, and Joseph Kavanaugh.
Points earned by 10% ESOP or BBOS Category and Ownership Indicator Weighting Points Compliance Target 10% ESOP Points Black People 4 25% + 1 10% 1. 6 Black Women 2 10% 5% 1. 0 Black People 4 25% 10% 1. 6 Black Women 2 10% Economic Interest of the following black natural people (broad-based groupings) in the Enterprise: - black designated groups; - black Participants in ESOP; black beneficiaries of BBOS; or - black Participants in Co-operatives 3 3% 10% 3. 0 2 2% 10% 2. 0 2. 1 Exercisable Voting rights in the hands of black people: 2. 2 Economic Interest in the hands of the following black people: 1. 0 2. 3 Realisation Points: 2. 3. 1 Net Value Total 8 3. 2 25 13. 4
MANAGEMENT CONTROL
Management Control MANAGEMENT CONTROL = MANAGEMENT CONTROL + EMPLOYMENT EQUITY • • • Aligned to the EE Act (targets, reporting and definitions) Must use current payroll data Must apply sub-race group demographics for SM, MM, JM (not to Board / Executives or Disabled) The description of each of the measurement categories is aligned with the EE Act Adjusted recognition for gender collapsed into specific targets for women
Management Control Generic Points Generic Targets 2. 1. 1 Exercisable voting rights of black board members 2 50% 2. 1. 2 Exercisable voting rights of black female board members 1 25% 2. 1. 3 Exercisable voting rights of black executive directors 2 50% 2. 1. 4 Exercisable voting rights of black female executive directors 1 25% 2. 2. 1 Black Executive Management 2 60% 2. 2. 2 Black Female Executive Management 1 30% 2. 1 Board Participation 2. 2 Executive Management
BEP’s measured on a single management target of 60% Managemet Control Generic Points Generic Targets 2. 3. 1 Black employees in Senior Management 2 60% 2. 3. 2 Black female employees in Senior Management 1 30% 2. 4. 1 Black employees in Middle Management 2 75% 2. 4. 2 Black female employees in Middle Management 1 38% 2. 4. 1 Black employees in Junior Management 1 88% 2. 4. 2 Black female employees in Junior Management 1 44% 2. 6. 1 Black disabled employees as a percentage of all employees 2 2% Total 19 2. 3 Senior Management 2. 4 Middle Management 2. 5 Junior Management 2. 6 Employees with disabilities
Other changes in Management Control • • Definitions for Senior Top and Other Top removed Executive management defined: CEO, COO, CFO Other Executive management defined: HR, Transformation and others If an entity does not distinguish between Executive Management and Senior Management, then: - Measure Executive and Senior out of 6 points Apply the Executive Management target (Avoid the sub-race group classification? )
SKILLS DEVELOPMENT
General Principles • Contribute to country’s economic and social development goals by developing skills that enrich decent work and sustainable livelihoods • Promote development of industrial skills base in critical sectors (production and value adding manufacturing that are labour intensive) • Support ‘Professional, Vocational, Technical and Academic Learning’ programmes through work integrated learning (apprenticeships, learnerships, internships, PP) • Strengthen skills and human resource base to support employment creation
Skills Development requirements WSP, ATR and Pivotal Report which are SETA approved Implementation of Priority Skills Programme Claim external training spend on unemployed Trainee tracking tool for ‘absorption’ Skills spend & Learnerships use demographic representation of black people (not for disabled or absorption) • For scoring purposes the targets should be further broken down into the race sub groups as defined in the EE Act. • Threshold requirement: • • • - The measured entity must achieve a sub-minimum of 40% of the target
BEP’s SD target spend = 1, 5% + 0, 3% = 1, 8% Weighting Points Skills Development Compliance Targets 2. 1. 1 Skills Development Expenditure on any program specified in the Learning Programme Matrix for black people as a percentage of Leviable Amount 2. 1. 1. 1 Skills Development Expenditure on Learning Programmes specified in the Learning Programme Matrix for black people as a percentage of Leviable Amount 8 6% 2. 1. 1. 2 Skills Development Expenditure on Learning Programmes specified in the Learning Programme Matrix for black people with disabilities as a percentage of Leviable Amount 4 0. 3% 2. 1 Number of black people participating in Learnerships, Apprenticeships and Internships as a percentage of total employees 4 2. 5% 2. 1. 2. 2 Number of unemployed black people participating in Learnerships, Apprenticeships and Internships as a percentage of total employees 4 Total 20 2. 1. 2 Learnerships, Apprenticeships and Internships: 2. 5% BONUS POINTS 2. 1. 3 Number of learners absorbed by the Measured Entity and industry at the end of the learnership program BEP’s target = 1, 5% 5 100%
Other changes • Category F + G treated as informal = limited to 15% of total spend • Accommodation, travel, catering, administration = limited to 15% of total spend • Mandatory sectoral training does not count: - Health and safety, First Aid? Fire? • Training outside SA must meet SAQA recognition to count • Measured entity no longer gets: - 1. 25 enhancement of ABET • Salaries or Wages of employees still count if Learnership, Internship or Apprenticeship (B, C or D)
SCORE 20+5 points Skills provider is black owned supplier providing for ESD contributions. Spending 2% of NPAT secures maximum points. SCORE 10 points Employment Equity SETA accredited learnerships, internships for abled and disabled learners to ensure maximum points for each subelement. Enterprise Development Skills Development Score maximum BEE points Training of PWD learners at 2% of total number of employees secures maximum points. SCORE 2 points
Maximum Tax benefits S 11(a) deduction S 12 H learnership rebate All spend is fully deductible for normal tax. Disabled learners qualify for Youth wage subsidy R 100, 000 tax rebate per learner per annum Up to 50% of learner Tax saving = 28% stipends are deductible as a Abled learners qualify for special subsidy. For learners R 60, 000 tax rebate per paid R 2, 000 per month this learner per annum results in a R 1, 000 per Tax saving = month tax subsidy on your R 28, 000 (disabled) PAYE R 16, 800 (abled) Tax saving = 50% of stipend
Minimum net cost of learnerships Learnership cost Tax saving Course = R 30, 000 Sourcing = R 1, 500 RA = R 4, 500 Stipend = R 24, 000 S 11(a) = R 16, 800 S 12 H = R 28, 000 YWS = R 12, 000 Total = R 60, 000 Per learner per annum Total = R 56, 800 Per learner per annum (RA = reasonable accommodation for disabled learners) Net cost PWD = R 3, 200 SETA grants Claim 20% of the mandatory grant back from the SETA Qualify to claim discretionary grant back from the SETA
Tax deductible learnerships Abled Disabled Learnership cost 30, 000 Sourcing 1, 000 1, 500 - 4, 500 Stipend (R 2, 000 pm x 12) 24, 000 Cost per learner 56, 000 60, 000 S 11(a) Deduction 15680 16800 S 12 H Rebate 16800 28000 Youth wage subsidy 12000 Mandatory SETA Grant 2000 Net cost per learner 9, 520 1, 200 PLWD accommodation Average Net Cost per Learnership 5, 360
Maximum points for minimum cost Example Co. with 200 employees Net cost per learnership 5% of workforce = 10 R 5360 Total net cost R 53, 600 Points earned 27 Net cost per point R 1, 985
ENTERPRISE & SUPPLIER DEVELOPMENT
Weighting Points Compliance Targets 2. 1. 1 BEE Procurement Spend from all Empowering Suppliers based on the BEE recognition levels 5 80% 2. 1. 2 BEE Procurement Spend from Empowering Suppliers QSE’s based on the applicable BEE recognition levels 3 15% 2. 1. 3 BEE Procurement Spend from Empowering Suppliers EME’s based on the applicable BEE recognition levels 4 15% 2. 1. 4 BEE Procurement Spend with Empowering Suppliers that are at least 51% black owned 9 40% 2. 1. 5 BEE Procurement Spend with Empowering Suppliers that are at least 30% black women owned 4 Total 25 BONUS POINTS BEE Procurement Spend with Designated Groups that are > 51% black Owned 2 2. 1 Preferential Procurement 12%
BEP’s ED target spend = 0, 75% of leviable amount Weighting Points Compliance Targets 10 2% of NPAT 2. 3. 1 Annual value of all Enterprise Development Contributions and Sector Specific Programmes as a percentage of the target 5 1% of NPAT 2. 4 Bonus Points One or more ED beneficiaries graduate to SD 1 Creating one or more jobs as a result of ED and SD 1 2. 2 Supplier Development 2. 2. 1 Annual value of all Supplier Development Contributions as a percentage of the target 2. 3 Enterprise Development
Empowering Supplier § A B-BBEE compliant entity which is a good citizen, and who complies with all regulatory requirements of the country and meets 3 of the § § following criteria: At least 25% of Cost of Sales excluding labour and depreciation must be procured from local producers or suppliers, service industry labour costs capped at 15% Job creation 50% of jobs created are for black people provided the number of black employees since the immediate prior verified B-BBEE measurement is maintained.
Empowering Supplier § At least 25% transformation of raw material/beneficiation which includes local manufacturing, production and/or assembly and/or packaging § Skills transfer – 12 days per annum of productivity deployed in assisting black owned EME and QSE beneficiaries § EME’s and Start up Enterprises are automatically given Empowered Supplier status § QSE’s are required to meet 1 critieria.
Enhanced recognition Criteria Enhancement 3 year contract with supplier x spend by 1. 2 Black owned QSE or EME that is not an SD beneficiary but has a 3 year contract x spend by 1. 2 First time supplier x spend by 1. 2
SOCIO-ECONOMIC DEVELOPMENT
Socio-Economic Development Criteria Weighting Points Annual (not average) value of all Socio-Economic Development Contributions by the Measured Entity as a percentage of the target BEP’s SED target spend = 0, 25% of leviable amount Compliance Target 5 1% of NPAT
Socio Economic Development § Beneficiaries must be 75% black § Access to the economy § Priorities in this element are to redress the issues of education, poverty, unemployment, health for those communities who remain disadvantaged
05 TOTAL BEE STRATEGY
Level 4 is achievable Ownership (10% ESOP / BBOS) Management Control Board (1 x BW non-exec) Management (2/3 easy) Skills Development (tax funded) ESD All ED ½ Procurement, Bonus point SED LEVEL 4 = 13 = = = 2 5 25 = = = 31 5 81
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