Labour Law – ARR224

1. Labour Law – ARR224 Lecture 12 The Employment Equity Act, 55 of 1998

2. Prescribed material Study: • PGL (Chapter 4 par 4.4-4.6 & 4.8) • Case law (as indicated in Study Guide) Read: • PGL (Chapter 4 par 4.1-4.3, 4.7 & 4.9-4.10) • LRL (Pp 629-662) • CLL (Pp 830-883)

3. Learning outcomes • Explain what affirmative action is. • Give an exposition of the affirmative action measures as prescribed by the Act.

4. EEA (Affirmative Action I) Affirmative action measures • AA measures designed to ensure suitably qualified persons from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in workforce. • Person may be suitably qualified for a job as a result of one or more of the following: • Formal qualifications • Prior learning • Relevant experience • The capacity to acquire, within reasonable time, ability to do the job. When determining whether person is suitably qualified for job, employer must review all above factors and determine whether person has ability to do job. In the process, employer may not unfairly discriminate against person solely on the ground of a lack of relevant experience.

5. EEA (Affirmative Action II) Affirmative action measures (continue) • AA measures must include: • Measures to identify and eliminate employment barriers, including unfair discrimination which adversely affects people from designated groups. • Measures designed to further diversity in workplace based on equal dignity and respect of all people. • Making reasonable accommodation for people from designated groups to ensure they enjoy equal opportunities and are equitably represented in workforce. “Reasonable accommodation” means any modification/adjustment to job/working environment that will enable person from designated group to have access to/to participate/advance in employment. • Measures to ensure the equitable representation of suitably qualified people from designated groups in all occupational categories and levels in workforce. • Measures to retain and develop people from designated groups and to implement appropriate training measures. Latter two measures include preferential treatment and numerical goals, but exclude quotas. • Designated employer not required to adapt its employment policies and practices in such a way that employment, continued employment or advancement of people who are not from designated groups are no longer possible.

6. EEA (Affirmative Action III) Duties of designated employers • I.t.o. sect 13, designated employer must: • Consult with employees Must consult and attempt to reach consensus on conduct of staff analysis, preparation and implementation of equity plan and report to be submitted to DG. Must also consult with trade unions, work place forums and representatives of non-union employees. All relevant information that will allow effective consultation must be disclosed by employer. • Conduct staff analysis/staff audit Employer must conduct analysis of its employment practices, policies and procedures and identify employment barriers. Analysis must include profile of workforce within each occupational category and level and under-representation must be identified.

7. EEA (Affirmative Action IV) Duties of designated employers(continue) • Preparation of employment equity plan and implementation thereof Employer must prepare and implement Equity plan, which must include: • Objectives to be achieved for each year of plan. • AA measures to be implemented. • Numerical goals to achieve equitable representation of suitably qualified people from designated groups within each occupational category and level, timetable within which this is to be achieved and strategies intended to achieve those goals. • Timetable for each year of plan for achievement of objectives other than numerical goals. • Duration of plan (not shorter than 1 year and not longer than 5 years). • Procedures for monitoring and evaluating plan and whether reasonable progress is being made. • Internal dispute resolution procedures to resolve disputes about interpretation/implementation of plan. • Persons, including senior managers, responsible for monitoring and implementing plan. Plan must be displayed at workplace and made available to employees. • Report to DG on progress made with implementation of plan Employer with < 150 employees must submit to DG report within 1 year of becoming designated employer and thereafter every 2 years during October. Employer with > 150 employees must submit report within 6 months of becoming designated employer and thereafter once every year during October. Report has to refer to progress made in implementation of AA. Report is public document. Public company must publish report in annual financial report. Organ of State’s report is to be tabled in Parliament.

8. EEA (Affirmative Action V) Income differentials • Employment equity progress report submitted by designated employer must include information on remuneration and benefits received in each occupational category and level of employer’s workforce • Where disproportionate income differentials are reflected, employer must take measures to progressively reduce such differentials.

9. EEA (Affirmative Action VI) Assessment of compliance • In determining whether designated employer is implementing employment equity in compliance with EEA, DG must take the following into account: • Extent to which suitably qualified people from and among different designated groups are equitably represented within each occupational category and level in workforce in relation to demographic profile of national and regional economically active population. • Pool of suitably qualified people from designated groups from which employer may reasonably be expected to promote or appoint employees. • Economic and financial factors relevant to sector in which employer operates. • Present and anticipated economic and financial circumstances of employer. • Number of present and planned vacancies existing in various categories and levels and employer’s labour turnover. • Progress made in implementing employment equity by other designated employers operating under comparable circumstances and within same sector. • Reasonable efforts made by designated employer to implement its employment equity plan. • Extent to which designated employer has made progress in eliminating employment barriers that adversely affect people form designated groups.

10. EEA (Affirmative Action VII Protection of employees’ rights • Employee/trade union representative may bring alleged contravention of EEA to attention of another employee/employer/ trade union/workplace forum/labour inspector/DG/ECC. • No person may discriminate against an employee who exercises any right conferred by EEA. • No person may: • Prevent employee from exercising any right or from participating in any proceedings. • Prejudice employee for exercising any right. • Prejudice employee for past/present/anticipated disclosure of information that he is lawfully entitled to give another person. • Favour/promise to favour employee in exchange for him not exercising any right.

11. EEA (Affirmative Action VIII) State Contracts • Failure of employer to comply with EEA is sufficient ground for rejection of any offer with that employer to conclude an agreement for furnishing of supplies or services to an organ of State or for hiring/letting of anything or for cancellation of agreement with employer. • Employer who wishes to conclude agreement with an organ of State must display his certificate of compliance. Certificate of compliance is issued by Minister to certify that designated employer has complied with provisions of Chap 2&3 and the ordinary employer with Chap 2. • Such certificate is valid for 12 months after date of issue.

12. EEA (Affirmative Action IX) Contravention of EEA • If employer contravenes certain provisions of EEA, fines ranging from R500,000 (1st offence) up to R900,000 (4 previous contraventions within 3 years) may be imposed.