In accordance with the attached Proclamation, the Employment Equity Amendment Act came into operation on 1 August 2014.  Some of the more important provisions include :-

1. The definition of “designated groups” has been qualified to ensure that the beneficiaries of affirmative action in terms of Chapter 3 are limited to black people, women and people with disabilities if they:

a) Are citizens by birth or descent; or

b) Became citizens by naturalisation -       

i) Before 27 April 1994; or

ii) After  26 April 1994 and who would have been entitled to acquired citizenship by naturalisation prior to that date but who were precluded from doing so by Apartheid policies.

2. Section 6 has been amended to include an additional ground for discrimination, being “any other arbitrary ground” which is consistent with Section 187(1)(f) of the LRA that prohibits discriminatory dismissals.

3. The EEA introduces in section 6(4) a new form of unfair discrimination by regulating situations where different employment terms and conditions are applied to different employees who do the same or similar work or work of equal value.  Therefore unless an employer can show that differences in wages or other conditions of employment are in fact based on fair criteria such as experience, skill, responsibility and the like, such differentiation based on a prescribed ground listed or any arbitrary ground will constitute unfair discrimination.

4. The Minister is empowered in section 6(5) to publish a Code of Good Practice dealing with criteria and methodologies for assessing work of equal value.  The draft regulations were recently published on 28 February 2014.  According to the draft regulations, equal work will be work that is the same; substantially the same, or of the same value as the work of another employee employed by that employer.  The draft regulations further provide that in applying section 6(4) (i.e. equal pay disputes):

a) It must first be established –

i) Whether the work concerned is of equal value; and

ii) Whether there is a difference in terms and conditions of employment, including remuneration; and

b) It must then be established whether any difference in the terms and conditions of employment, including remuneration, constitutes unfair discrimination, bearing in mind the provisions of section 11 of the EEA (see par 6 hereunder).

The draft regulations further provides that an assessment must be undertaken to consider whether work is of equal value and provides the criteria to be taken into account, *amongst others:

a.   The responsibility demanded of the work, including responsibility for people, finances and materials;

b.   The skills, qualifications, including prior learning and experience required to perform the work, formal or informal;

c.   Physical, mental and emotional effort required to perform the work;

d.   To the extent that it is relevant, the conditions under which work is performed, including physical, environment, psychological conditions, time when and the geographical location when the work is performed.
*This is not a closed list.

The draft regulations further provides the grounds justifying differentiation in terms and conditions of employment, including remuneration as being:

a. Seniority or length of service;

b. Qualifications, ability, competence or potential above the minimum acceptable levels required for the performance of the job;

c. Performance, quantity/quality of work, provided that employees are equally subject to the employer’s performance evaluation system consistently applied, amongst others.

5. Previously, all unfair discrimination claims fell within the exclusive jurisdiction of the Labour Court.  In terms of Section 10(6) parties to the dispute are allowed the option of referring the dispute for arbitration in the CCMA under the following circumstances:

i) If the employee’s cause of action arises from an allegation of unfair discrimination on the grounds of sexual harassment;

ii) Employees earning below the earnings threshold (currently R205 433.30 per annum) will be entitled to refer any discrimination claim;

iii) Both parties consent thereto.

* If employees earn more than the earnings threshold, they will only be entitled to bring claims based on unfair discrimination arising from sexual harassment to the CCMA for arbitration, unless all parties consent thereto.

Section 10(8) further provides that a persons’ affected by an arbitrator’s award in the above cases may appeal to the Labour Court.  In addition, parties will only have a period of 14 calendar days after the award is given to give notice of their intention to appeal the award, unless the Labour Court grants a time extension in this regard.

6. The burden of proof has been revived in unfair discrimination disputes to distinguish between discrimination on listed grounds and discrimination based on an arbitrary ground:

a) If unfair discrimination is alleged on a ground listed in section 6(1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination

i) Did not take place as alleged; or

ii) Is rational and is not unfair, or is otherwise justifiable.

b) If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that:

i) The conduct complained of is not rational;

ii) The conduct complained of amounts to discrimination; and

iii) The discrimination is unfair.

7. As a consequence of the introduction of section 6(4), “unfair discrimination” is now added to the income differential’s section in section 27 meaning that in the same way as where disproportionate income differentials are reflected, where unfair discrimination by virtue of a difference in terms and conditions of employment contemplated in section 6(4) is indicated, the employer has the same obligation to take measures by progressively reducing such differentials.

The EEA does away with objections and appeals against compliance orders issued by inspectors however, when there is non-compliance with a compliance order, the Department may take the matter directly to the Labour Court.

The thresholds applicable to designated employers have vastly increased.

Contact: Manisha Maganhai-Mooloo or Khanyisile Khanyile, Adams & Adams