The Employment Equity Amendment Bill, 2012 (EEAB) proposes several changes to the current Employment Equity Act, No 55 of 1998 (EEA). One of the ways that it does so is by introducing a new form of unfair discrimination.

This form of unfair discrimination will regulate situations where different employment conditions are applied to different employees who do the same or similar work (or work of equal value). Unless the employer can show that differences in wages or other conditions of employment are, in fact, based on fair criteria such as experience, skill and responsibility, such conduct will constitute unfair discrimination.

With regard to affirmative action, the Labour Department will have increased powers to fine companies who do not comply with their employment equity obligations. The quantum of fines will be increased and may now also be determined by making reference to the employer's annual turnover.

Furthermore, the group of people who benefit from affirmative action will be limited to persons who were citizens of South Africa before the democratic era (or would have been entitled to citizenship, but for the policies of apartheid), and to their descendants. This means that the employment of persons who are foreign nationals, or who have become citizens after April 1994, cannot assist employers to meet their affirmative action targets.

The amendments will also affect a company's use of contract workers. In line with proposed amendments to the Labour Relations Act, No 66 of 1995, employees who are placed with a client by a labour broker for longer than six months will be deemed to be employees of the company for the purposes of affirmative action.

The Employment Services Bill, 2012 (ESB) is a new government initiative which will set up a public 'employment services agency', and will also provide for the regulation and registration of private employment services agencies. These agencies are not labour brokers but institutions that will provide job seekers with certain services - such as matching job seekers with available work opportunities, registering job seekers, job vacancies and facilitating other employment opportunities. The Bill will also set up a nationwide database to monitor employment and assist with government's goal of creating more jobs, decent work and sustainable livelihoods.

By Johan Botes, Director,  and Mark Meyerowitz, Associate, Employment, Cliffe Dekker Hofmeyr