EMPLOYMENT EQUITY BILL
Interested parties are invited to submit written comments on the Employment Equity Bill, 1997 before 16 February 1998 by
(a) posting it to:
The Director: Equal Opportunities
Mr Loyiso Mbabane
Private Bag X117
Pretoria
0001
(b) fax to:
(012) 309-4737
(c)delivering it to:
Room 13
Ground Floor
Laboria House
215 Schoeman Street
Pretoria
(d) e-mail to:
Loyisom@labourhq.pwv.gov.za
A NOTE FROM THE MINISTER
Apartheid has left behind a legacy of inequality reflected in disparities in the distribution of jobs, occupations and income. The government is of the view that it is necessary to redress these imbalances and to inculcate within every workplace a culture of nondiscrimination and diversity. When it comes to jobs, training and promotion we want a fair deal for all workers.
This Bill is a product of debate and discussions triggered by the Green Paper on Employment and Occupational Equity published in July 1 996.
We urge you to comment on this Bill to enrich it. We would appreciate your comments by the 15th of February 1998.
We want to build a South Africa with a diverse and representative workforce. We want to abolish discrimination in the workplace. Let this Bill be the subject of debate in every workplace and by all workers and employers.
T. T. MBOWENI, MP
MINISTER OF LABOUR
INTRODUCTION
Apartheid has left behind a legacy of inequality. In the labour market the disparity in the distribution of jobs, occupations and incomes reveals the effects of discrimination against black people, women and people with disabilities. These disparities are reinforced by social practices which perpetuate discrimination in employment against these disadvantaged groups, as well as by factors outside the labour market, such as the lack of education, housing, medical care and transport. These disparities cannot be remedied simply by eliminating discrimination. Policies, programmes and positive action designed to redress the imbalances of the past are therefore needed.
The Government has decided to introduce the Employment Equity Bill ("the Bill") to address some of these issues. The Bill seeks to eliminate unfair discrimination in employment, and to provide for affirmative action to redress the imbalances of the past and create equality in employment ("employment equity"). This legislation is drafted with a view to advancing those groups who have been disadvantaged as a result of discrimination caused by laws and social practices, and not with a view to seeking retribution for past injustices.
THE VISION OF THE BILL
As president Mandela has said, "The primary aims of affirmative action must be to redress the imbalances created by apartheid. We are not . . . asking for hand-outs for anyone nor are we saying that just as a white skin was a passport to privilege in the past, so a black skin should be the basis of privilege in the future. Nor . . . is it our aim to do away with qualifications. What we are against is not the upholding of standards as such but the sustaining of barriers to the attainment of standards; the special measures that we envisage to overcome the legacy of past discrimination are not intended to ensure the advancement of unqualified persons, but to see to it that those who have been denied access to qualifications in the past can become qualified now, and that those who have been qualified all along but overlooked because of past discrimination, are at last given their due. The first point to be made is that affirmative action must be rooted in principles of justice and equality." October 1991 .
The legacy of discrimination
Black people, women and people with disabilities face significant disadvantages in employment. These include occupational segregation, inequalities in pay, lack of access to training and development opportunities, and high levels of unemployment. Black people, in particular, have suffered particular and pernicious disadvantages as a result of job reservation and lack of access to skills and education under apartheid. This discrimination sometimes takes the form of direct and conscious decisions, based on prejudice or stereotypes, to exclude certain groups from jobs or promotions. For instance, some employers, believing that women are not assertive enough to manage or supervise other employees, will not consider employing a woman in any senior position.
Whilst the Bill seeks to address inequalities within the sphere of employment (inside the labour market) it should be noted that these inequalities are reflected outside of the labour market. Extra-labour market inequalities are extreme and they have a direct effect on the quality and nature of labour that is supplied to the labour market. Factors like disparities in ownership of productive assets, the unequal division of household labour and the geographic distribution of population groups under apartheid all contributed to the reinforcement of these inequalities.
Whereas South Africa is not a poor country by international standards, it is infamous for having the most unequal distribution of income in the world. In its 1996 Country Review, the International Labour Organisation (ILO) concluded that South Africa had the highest levels of inequality of any country in the world for which the ILO had data. The nature and extent of these inequalities are elaborated in the ILO Country Review (1996) as well as in the Labour Market Commission (1996).
The Labour Market Commission notes that our skewed income distribution is reflected in the fact that the bottom 20% of income earners capture a mere 1,5% of national income, while the wealthiest 10% of households receive fully 50% of national income. Further, poverty is overwhelmingly concentrated in the African and coloured population: 95% of the poor are African, and 65% of Africans are poor. The Labour Market Commission notes that roughly 33% of the coloured population live in poverty, compared to 2,5% for Asians and 0,7% for whites. This racial inequality is also reflected in the situation with respect to unemployment in the country. Using an expanded definition of unemployment, among Africans, unemployment stands at roughly 41%, among coloureds it is 23%, whilst among Asians 17% but is only 6,4% amongst whites. There is also a gender element to the inequality, with women having a higher unemployment rate than men.
The Green Paper on Employment and Occupational Equity (1996) pointed out that amongst the employed, a third of Blacks earn below R500 per month, compared to under 5% for whites. The Green Paper also noted that a male white South African was 5 000 times more likely than an African women to be in a top management position. These apartheid-induced inequalities are reflected in the current distortions within the occupational and professional structures of the labour force. A survey of some 107 organisations by the Breakwater Monitor in 1996 indicated that in the top managerial ranks of companies (Paterson F Grade), Africans constituted only 2,99%, coloureds were 0,43%, Asians 0,21%, whilst whites were 96,38%. The same study found that for the lowest grades (Paterson A) whites constituted 1,85%, Africans 89,01%, coloureds 7,94% and Asians 1,20%. There is, in short, little correlation between the composition of the workforce at technical, professional and managerial levels and the overall demographics of our country.
The occupational structure of companies in South Africa, mirrors the distortions that apartheid was so successful at creating and re-enforcing. This situation is not going to redress itself automatically. Indeed a recent survey of affirmative action (FSA Contact) noted in September 1997 that, "There has been a slight drop in the degree of commitment to Affirmative Action programmes from Chief Executive Officers and Senior and Middle Management". The same survey found that in the three-year period to 1997, the number of black senior managers increased by only 2,3%, with a paltry 1,6% increase among middle managers. The ILO Country Review (1996) points out that occupational segregation remains pervasive in South Africa. According to the 1994 October Household Survey, over two in every five employed blacks were in labouring jobs, whereas about one in every fifty whites were in such jobs. The ILO Country review notes that at the top, not only have Africans and other non-whites been chronically under represented in managerial positions but whites have been artificially eased into management without the requisite qualifications. This situation does not just apply to the private sector. The ILO Country Review points out that under apartheid, the public sector was a vehicle for intensifying racial inequalities. However occupational segregation is still a serious problem even within the new public service.
A recent survey of the Public Service (Naidoo, 1997) found that as of June 1997, the public service consisted of 1,18 million persons, 71 percent in the provinces and 29 percent in national Departments. The Survey found that Africans constitute 67 percent of the public service, Coloureds nine percent, Indians three percent and whites 21 per cent. Whereas Africans constitute two thirds of total employees, they only constitute 31 percent of management. The proportions in management: are an inverse of the racial representation of employees in the general public service. Whites (who are 21 percent of the public service) are 62 percent of management, Coloureds are three percent and Indians are four percent. The Survey found that the percentage of Africans in senior management (47%) is just above that of whites (43%). The female to male ratio in the general employee profile was found to be almost equal (Females were 49,9% and males 50,1%), and yet males were 89% of management. 1-his male-female proportion remained the same for senior management, with males being 88% and females being 12%.
The Survey by Naidoo (1997) also found that of the females in management, there was an equal split between black and white females, both groups constituting 5%. This clearly shows that the issue of racial equity in management has not been addressed. Certainly not to the extent envisaged in the targets of the White Paper on the Transformation of the Public Service (1995). The situation with respect to gender equity also leaves much to be desired, judging by the findings of the Survey.
With respect to people with disabilities, the Survey found that only 236 people with disabilities were employed in the public service Departments, although the numbers might be inaccurate because a number of the Departments surveyed did not have statistics on their employees who have disabilities. Nevertheless, 236 out of 1,18 million employees is still a mere 0,02 per cent, which is one hundredth of the target set by the White Paper (to be attained in 2005). Even if the actual figure were doubled (Twice the one reported in the survey), people with disabilities in the public service would still be 0,04 per cent of the total workforce (as at June 19'37).
The concern is by no means limited to managerial positions. There is a serious problem with respect of occupational segregation in general South Africa. The ILO Country review points out that by 1989, only six per cent of artisans and 14 per cent of apprentices were African, and most of these were in the construction industry. Of the 9,054 indentured apprentices in 1990, 6,709 (74 per cent) were white, 951 (10,5 per cent) were African, 871 (9,6 per cent) were coloured, and 523 (5,8 per cent) were Asian, according to the ILO Country Review (1996). The ILO country review also notes that those Africans that have entered the system have been concentrated at the lower end - of the skill spectrum. Thus, although Africans accounted for about: 10 per cent of all qualified artisans by 1990, they were concentrated in six relatively low-skilled trades, including welding, boiler-making, fitting and sheet metal working; whites continued to predominate in the more high-skill trades in the metal, engineering, electrical and motor sectors.
The ILO Country Review (1996) also refers to the extent of discrimination according to sectors. For instance Africans were to be found mostly in the mining and construction sectors. There were very few Africans in the lucrative financial and services sectors. While whites are one third of formal employment, they constitute about 60 per cent of employees in the financial services. In 1993 only one per cent of Africans were in the Financial sector.
The inequalities also apply to income. The ILO Country Review notes that women's incomes are substantially lower than men's, but that the average income for African men was less than that of white women. The ILO Country Review points out that the problem is a combination of race and gender. White women are not in the same position as black women (white women are better off, salary wise and so forth). In this regard the ILO Country Review calls for specific attention to be paid to the situation of African women.
Clearly the new South African government must introduce measures to effectively address this situation. Measures to outlaw discrimination and to encourage companies to develop a more diverse and representative workforce are necessary, not only to promote equity and justice, but also in the interests of economic growth.
Economic growth
It is common cause that South Africa is weak in this regard. The recent World Competitiveness Yearbook (1997) rates South Africa last out of 46 countries with respect to the competitiveness of its workforce. A skilled labour force increases a country's competitiveness. Racial discrimination in education and access to employment, coupled with the constant denial of opportunities to blacks and women, has led to the very poor overall skills levels to be found in the South African labour market. The ILO Country Review (1996) points out that inequalities lead to market distortions which in turn result in the inadequate utilisation of resources. It follows that the reduction of inequality in society is therefore a way of promoting economic growth. A similar point is made by the Breakwater Monitor (1996) citing several US and UK studies which demonstrate that employment discrimination and poor educational opportunities entail significant economic costs in terms of lower national output, labour market inefficiency, higher inflation, and excessive welfare and penal system costs. At the workplace the level the underutilisation of certain race groups, women and people with disabilities, contributes to job dissatisfaction resulting in excessive rates of absenteeism, employee turn-over and grievances, which in turn lead to lower productivity. Upgrading of skills, improving access to jobs, occupations, training and promotion opportunities advances all members of the workforce and makes it possible for them to achieve maximum productivity and efficiency.
On a wider scale, the elimination of discrimination raises economic efficiency throughout the economy by ensuring a more rational allocation of labour resources. Measures to prohibit discrimination in employment stimulate active participation in the labour market by all categories of employees and are therefore an economic imperative. By increasing the pool of skilled and qualified employees, and improving labour market mobility, economic efficiency is enhanced.
In short, the promotion of employment equity is therefore desirable on both equity and efficiency grounds. This Bill seeks to take forward the Labour Market Commission's recommendation that employment equity legislation should be promulgated as soon as possible in order to transform the labour market, create labour market security, and maximise economic competitiveness.
Constitutional and other requirement.
The Constitution of South Africa guarantees to everyone the fundamental right of equality. This includes equality in the social, political and economic spheres of all persons and groups in society. The Constitution recognises that measures to ensure freedom from discrimination are necessary to remedy the pervasive inequalities which define South African society.
The elimination of unfair discrimination in employment and the adoption of positive measures to redress social imbalances are important components of this process, and legislation is a necessary step towards the achievement of employment equity.
The Bill makes provision for positive measures to promote a diverse and representative workforce. It however stresses the need for this to be done in ways which do not put in place absolute barriers to the employment or advancement prospects of any individual.
There are employers who have made some great strides in attempting to achieve employment equity. This Bill aims to encourage and generalise such practices. The focus is on encouraging companies towards better employment practices. The regulatory burden, which is imposed, is therefore, relatively light. Government wishes to encourage rather than punish, and the punitive aspects of the Bill will only worry those employers actively resistant to the goals of the Bill.
South Africa has ratified ILO convention No. 111, the Convention concerning discrimination in Respect of Employment and Occupation, which aims to achieve equality of opportunity and treatment in employment through the elimination of discrimination. Convention 111 requires member states to declare and pursue a national policy designed to promote "by method appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof." Article 5 of Convention 111 specifically excludes, Special measures which are designed to meet the particular requirements of persons who, for reasons such as sex, age, disability, family responsibilities or social or cultural status, are generally recognised to require special protection or assistance". These special measures are required to be determined after consultation with representative employers' end employees' organisations.
This Bill will fulfil South Africa's obligations in terms of Convention 111, and is consistent with other international instruments such as the International Convention on the Elimination of All Forms of Racial Discrimination (196,5); the Convention on the Elimination of All forms of Discrimination Against Women (1979); and the United Nations Declaration on the Rights of Disabled Persons (1975).
KEY FEATURES AND ISSUES
Purpose
The primary purpose of the Bill is to achieve employment equity through (a) the elimination of unfair discrimination, covered in chapter 11 of the Bill, and (b) the implementation of affirmative action measures to advance black people, women and people with disabilities.
The Bill recognises that the mere removal of discrimination will not lead to the advancement and development of groups that have been previously denied such opportunities. Employment equity measures including affirmative action, are needed to ensure that equality does not just remain a formality but is achieved in a substantive way.
Unfair discrimination
The unfair discrimination provisions of the Labour Relations Act, 1995 (Act No. 66 of 1995) are now covered under this Bill. Chapter II of this Bill deals with the prohibition of unfair discrimination in employment, along the lines prescribed in tine Labour Relations Act of 1995. Unfair discrimination in the Bill includes "any distinction, exclusion or preference made on one of more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language and birth". Unfair discrimination against employees in respect of employment policy or practices is prohibited. These policies and practices include recruitment procedures, advertising and selection criteria, job classification and grading, remuneration, employment benefits and terms and conditions of employment, the working environment and facilities, training and development, performance evaluation systems, promotion, transfer, demotion, disciplinary measures short of dismissal and dismissal. It will not be unfair for employers to discriminate for purposes of affirmative action. Distinctions and exclusions will also be permitted if these are on the basis of the inherent requirements of the job.
Scope
The provisions of the Bill apply to all employers other than members of the National Defence Force, South African Secret Service and National Intelligence Agency. This is consistent with the Labour Relations Act (1995), and the Basic Conditions of Employment Act, 1997, which exclude these members from the definition of employee based on the unique functions they perform. Notwithstanding their exclusion from the labour legislation, the Government still has an obligation to ensure that the rights of members of these agencies not to be unfairly discriminated against are adequately protected, and that appropriate procedures are established for any disputes concerning these rights.
Chapter 111, dealing with the development of employment equity plans, does not apply to employers employing less than 50 employees. This is to ensure that, whilst every employer will be obliged to ensure that there is no discrimination, smaller employers will not have to bear the administrative burden of conducting audits, reviews and submitting reports.
All employers should ideally embark on employment equity. However, the threshold of 50 employees is considered to be a realistic starting point, in particular to ensure effective monitoring and administration of the legislation in its first few years of operation. The Central Statistical Services (1997) estimates the number of companies that employ more than 50 employees at around 10 000. The public sector is included in the Bill. The Bill will also allow for certain employers to be required to comply with Chapter 111 of the Bill, for instance if the Labour Court deems this necessary, even if they employ less than 50 employees. The Bill also encourages private employers who fall below the threshold to comply with the provisions of Chapter 111 voluntarily.
Designated group.
The designated groups are black people, women and people with disabilities. They are referred to in the Bill as "persons from the designated groups. They are the focus of the Bill. A recent survey of affirmative action (September 1997) noted that although African people represent 76% of South Africa's population, in 1996 they accounted for fewer than 5% of managers across the economy. From 1992 to 1996 the number of black senior managers had increased by only 0,4%.
While women constitute 52% of South Africa's population according to the provisional 1996 Census figures, in 1996, they occupied only 12,2% of senior management positions in a sample of companies surveyed by the Breakwater Monitor. The Breakwater Monitor also found that 100% of female senior managers (KU Grade) were white women. There were no coloured or Asian women at this level. A similar situation was found at middle management grades (DU and DL), whereby 88,7% were white women.
With respect to disability the most recent CSS data (1997) estimate that 5% of the population are disabled, although organisations of people with disabilities suggest that the figure might be much higher. Estimates indicate that one in five people with disabilities is economically active, and only one in 100 has a job on the open labour market. The vast majority of people with disabilities are forced to depend entirely on social pensions and family support, as they do not have employment opportunities.
Employment Equity and affirmative action
The approach taken by the Bill is that Employment Equity encompasses both the elimination of discrimination as well as the establishment of specific measures to accelerate the advancement of designated groups. One of the measures to accelerate the advancement of designated groups is affirmative action. The Bill thus takes a broader view of the end result and this is reflected in the reference to Employment Equity and to employment equity plans. Cognisance is however taken of the fact that in most instances there will be a need for more specific plans and efforts that will involve preferential treatment in appointments and promotions, as well as accelerated development and advancement, these are commonly referred to as affirmative action measures. There is more to employment equity than affirmative action however, and there are many other measures that organisations can take which do not necessarily fall under the traditional conceptualisation of "affirmative action", but which have the effect of attaining equity. These measures would be included in the employment equity plans.
Process
Every designated employer (essentially those employing more than 49 employees) is required to take five essential steps towards employment equity--
These obligations are similar to those generally found in the similar legislation of other countries (e.g. Canada, Australia).
The Bill does not impose quotas for the representation of members of designated groups in the workplace. Rather, the Bill creates a basis for consultation between employers, employees and trade unions so that parties will set numerical goals and put in place measures to achieve equality which are appropriate to their own workplaces and experiences, without undermining the goal of a more representative and diverse workforce.
The success of employment equity in different workplaces depends on whether the consultation process with employees and their trade unions is meaningful. Proper and meaningful consultation will contribute to a joint commitment to workplace transformation. It will also have long-term benefits of fostering workplace democracy and productivity by ensuring that good employment equity plans are prepared which address the issues and meet the needs of members of disadvantaged groups in the workplace.
Given the disparities in access to training in South Africa and the lack of skills, accelerated training programmes are an important constituent of employment equity plans. Consultation will identify the nature of the training required and enable measures for accelerated training and human resource development: of members of disadvantaged groups to be implemented. Whilst employers do not have to employ new employees in order to fulfil the requirements of the Bill, they have a duty to train and develop existing employees as part of the process of advancement. Training and development accordingly constitute one of the most important positive measures advocated by the Bill.
The rights of people with disabilities
The Green Paper on Employment and Occupational Equity was criticised for failing to give sufficient consideration to the rights and needs of people with disabilities. The Bill accordingly attempts to provide redress for people with disabilities who are unfairly discriminated against, and requires employers to implement positive measures for their employment and advancement in the workplace.
Where a person with disabilities is discriminated against, she/he may declare a dispute and seek its resolution by the Commission for Conciliation, Mediation and Arbitration ("COMA") through conciliation. If the dispute is not resolved through conciliation, if may be referred to the Labour Court. If the dispute proceeds to the Labour Court, the complainant may be assisted by an organisation representing people with disabilities. Those organisations may either join as parties to the dispute, or they may submit supporting briefs to the Labour Court in order to assist the Court to deal with issues pertaining to people with disabilities.
People with disabilities in the workplace have to be consulted by the employer, with a view to reaching agreement, on the preparation and content of employment equity plans. This ensures that their needs and interests will be taken into account in designing appropriate positive measures to advance them in the workplace, to provide training and development, and to reasonably accommodate their needs. Employers will have to consider making structural changes or introducing technical aids to facilitate the employment of people with disabilities. This emerges from an employer's obligation not to discriminate against employees or job applicants in respect of the workplace environment and facilities.
In addition, where an employer fails to consult with people with disabilities in the workplace in preparing employment equity plans, or prepares a plan which does not provide positive measures for people with disabilities, or does not implement a plan which provides positive measures for people with disabilities, these employees or their representatives may declare a dispute. The dispute will be conciliated by the COMA and, if unresolved after conciliation, may proceed to arbitration. The assistance of the Department of Labour can also be invoked by people with disabilities in seeking to ensure that employers prepare proper employment equity plans and implement those plans.
Enforcement
The Bill protects employees who try to enforce their rights from being victimised or discriminated against.
The Bill builds on the role of existing collective bargaining and labour market institutions established under the Labour Relations Act. In this context, trade unions have a significant role to play in the consultation process preceding the development of employment equity plans. In addition, the supervisory and monitoring role of the Department of Labour is reinforced.
Provision is made for disclosure of information to employees and trade unions to give effect to meaningful consultation.
Commission for Employment Equity
A Commission for Employment Equity ("CEE") is established as an advisory body to the Minister. The CEE will consist of persons representing the interests of women, people with disabilities, and representatives of NEDLAC. All members of the CEE will serve on a part-time basis. The CEE will be assisted by a secretariat within the Department of Labour. It will play a role in drafting codes of good practice on various issues, as well as the regulations. Codes will be developed on important issues such as the impact of grading systems and occupational differentials on equity.
An effective monitoring body with credibility and legitimacy is needed to ensure that there is speedy progress in South Africa in this area. International experience in areas that have affirmative action and employment equity measures (such as the USA, Canada and Australia) also points toward the importance of such a structure. In all the latter countries, there is a Commission with far stronger powers and resources than the one envisaged in the Bill. The Bill opted for a smaller Commission because there are already other structures that deal with other aspects of employment, such as the COMA. Other general issues concerning the violation of human rights are also being handled by the Human Rights Commission. The Commission on Gender Equity is also dealing with matters of gender inequity in a very broad sense. The Commission on Employment Equity will be very narrow in its focus in that it will limit itself to the sphere of employment equity. This will enable it to develop expertise that will guide the development of Codes of good practice in employment.
Dispute resolution
The Bill adopts the conciliation, arbitration and adjudication model of the Labour Relations Act. It uses the existing mechanisms established under the Labour Relations Act, i.e. the CCMA and Labour Court, to resolve disputes arising under the Bill. Disputes concerning unfair discrimination or protection of rights that are unresolved after conciliation may be referred to the Labour Court. Disputes concerning affirmative action and employment equity measures are resolved through conciliation and failing that, through arbitration. Whilst the Bill builds on existing institutions, the Department of Labour and the CCMA will require additional resources to properly administer it. The CCMA should ideally establish a separate division to deal with disputes arising in terms of the Bill in addition, commissioners of the CCMA will need to receive special training and develop expertise concerning unfair discrimination and affirmative action/ employment equity disputes. Judges of the Labour Court will need to be sensitised to issues pertaining to discrimination, in particular, gender discrimination.
The drafting process
This Bill emerged out of an extensive consultation process. This process began with the establishment of the Affirmative Action Policy Development Forum by the Minister in 1995. This Forum represented the major stakeholders in the area of affirmative action and employment equity, viz. The unions, business, community organisations, disabled people's organisations, women's organisations and non-governmental organisations. When it completed its work, a team of experts was appointed to draft the green paper. The team members included Baroness Amos (formerly Ms Valerie Amos), former CEO of the Equal Opportunities Commission (UK), Ms Urmila Bhoola (Cheadle Thompson and Haysom), Mr Sipho Madhlopha (Madhlopha Attorneys), Ms Thuli Madonsela (Chief Director, Department of Justice), Dr Neva Makgetla (Deputy Director General, Department of Public Service and Administration, formerly Director-Department of Labour), Mr Mpho Makwana (former Director Equal Opportunities, Department of Labour), Ms Lucia Rayner (deputy director of Equal Opportunities, Department of Labour), Jackie Scholtz (State Law Advisor) and Dr Caroline White (University of Natal, Durban, formerly Centre for Policy Studies). This team's efforts led to the publication of the Green Paper on Employment and Occupational Equity on the 1 July 1996.
The Minister then appointed a team of legal experts to draft the Employment Equity Bill. This team began its work in February 1997. Its members were Ms Urmila Bhoola (Cheadle, Thompson & Haysom), Ms Amanda Amstrong (CTH) Mr Sipho Madlhopha (Madlhopa Attorneys) and Mr Mzi Yawa (formerly, Department of Labour).
Professor Julio Fawndez of Warwick University (UK) was seconded to the drafting team by the International Labour Organisation (ILO). The drafters made extensive use of his expertise.
To assist the Legal Drafting Team in its work, a policy reference group was formed to advise the legal drafters on equity policy matters. The group under the leadership of the Director: Equal Opportunities Mr Loyiso Mbabane, consisted of Mr Les Kettledas, Mr Jeremy Baskin, Dr Guy Mhone, Ms Lucia Rayner, Ms Tanya Golden, Ms Nokhanya Moerane, Mr Jesse Maluleka, Mr Terence Chauke and Ms Thuli Madonsela. The team completed its work at the end of August 1997.
During September to November the USAID sponsored inputs from several international experts including Mr Deval Patrick; Mr Kenneth Gage; Ms Ellen Vargyas, Mr Joseph Kennedy and Ms Shirley Wilcher. Professor Harish Jain of Canada also provided extensive input through the financial assistance of USAID. The Department of Labour extends its heartfelt gratitude to all the individuals noted above, without whose hard work and tireless efforts this Bill would not have reached this stage. The Department is indebted to the ILO and USAID for their generous assistance. To them and to all the other people who were involved in this initiative, we say "NINGADINWA NANGOMSO".
EMPLOYMENT EQUITY BILL
CHAPTER I
PURPOSE, APPLICATION AND INTERPRETATION
1. Purpose of this Act
2. Interpretation of this Act
3. Application of this Act
CHAPTER II
PROHIBITION OF UNFAIR DISCRIMINATION
4. Elimination of unfair discrimination
5. Prohibition of unfair discrimination
6. Disputes about this Chapter
7. Burden of proof.
CHAPTER III
DUTIES OF DESIGNATED EMPLOYERS
8. Designated groups
9. Designated employers
10. Duties of designated employers
11. Voluntary compliance with this Chapter
12.Positive measures
13.Consultation with employees
14.Matters for consultation
15.Disclosure of information.
16.Analysis
17.Employment equity plan
18.Report
19.Publication of report
20.Successive employment equity plans
21.Designated employer must assign manager
22.Duty to inform
23.Duty to keep records
24.Disputes about this Chapter
CHAPTER IV
COMMISSION FOR EMPLOYMENT EQUITY
25. Establishment of Commission for Employment Equity
26. Composition of Commission for Employment Equity
27. Functions of Commission for Employment Equity
28. Staff and expenses
29. Public hearings
30. Report by Commission for Employment Equity
CHAPTER V
MONITORING, ENFORCEMENT AND LEGAL PROCEEDINGS
31. Monitoring by employees and trade union representatives
32. Powers of labour inspectors
33. Undertaking to comply
34. Compliance order
35. Objections to compliance order
36. Appeal from compliance order
37. Register of designated employers
38. State contracts
39. Review by Director-General
40. Assessment of Compliance
41. Outcome of Director-General's review
42. Failure to comply with Director-General's recommendation
LEGAL PROCEEDINGS
43. Conflict of proceedings
44. Consolidation of proceedings
45. Powers of commissioner in arbitration proceedings
46. Jurisdiction of Labour Court
47. Powers of Labour Court
PROTECTION OF EMPLOYEE RIGHTS
48. Protection of employee rights
49. Procedure for disputes
CHAPTER VI
GENERAL PROVISIONS
50. Codes of good practice
51. Regulations
52. Minister empowered to add to and change Schedules
53. Delegations
54. Designation of Organs of State
55. Breach of confidence 56. Liability of employers
57. Obstruction, undue influence and fraud
58. This Act binds the State
59. Application of Act when in conflict with other laws
60. Repeal of laws and transitional arrangements
61. Definitions
62. Short title and commencement
SCHEDULE 1
MAXIMUM PERMISSIBLE FINES THAT MAY BE IMPOSED FOR CONTRAVENING
THIS ACT
SCHEDULE 2
DISPUTE RESOLUTION: FLOW DIAGRAMS
SCHEDULE 3
LAWS REPEALED
SCHEDULE 4
TRANSITIONAL ARRANGEMENTS
PREAMBLE
The people of South Africa recognise.
That as a result of apartheid and other discriminatory laws and practices, there are disparities in employment, occupation and income within the national labour market.
That those disparities create such pronounced disadvantages for certain categories of people that they cannot be redressed simply by repealing discriminatory laws.
That as a result of unfair discrimination and exclusion from employment, black people, women and people with disabilities are the most disadvantaged groups in our country.
That unfair discrimination has had a negative impact on the economic development of our country.
Therefore-
to promote the constitutional right of equality and the exercise of true democracy;
to eliminate unfair discrimination in employment;
to ensure the implementation of employment equity to redress the effects of discrimination;
to achieve a diverse workforce broadly representative of our people;
to promote economic development and efficiency in the workforce; and
to give effect to the obligations of the Republic as a member of the
International Labour Organisation:
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:
PURPOSE, APPLICATION AND INTERPRETATION
1. Purpose of this Act
The purpose of this Act1 is to achieve equality in the workplace by--
2. Interpretation of this Act
This Act must be interpreted--
3. Application of this Act
(1) Chapter 11 of this Act applies to all employees and employers.
(2) Except where Chapter 111 provides otherwise, Chapter 111 of this Act applies only to designated employers and people from designated groups.
(3) This Act does not apply to members of the National Defence Force, the National Intelligence Agency, and the South African Secret Service2.
PROHIBITION OF UNFAIR DISCRIMINATION
4. Elimination of unfair discrimination
All employers must take steps to promote equal opportunity in the workplace, and to this end, to eliminate unfair discrimination in any employment policy or practice.
5. Prohibition of unfair discrimination
(1 ) No person may unfairly discriminate, directly or indirectly against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language and birth.
(2) It is not unfair discrimination--
(3) Unfair discrimination includes the harassment of an employees 3
(4) Testing of an employee for any medical condition is prohibited, unless--
(5) For purposes of this section, "employee" includes an applicant for employment.
6. Disputes about this Chapter
(1 ) Any party to a dispute concerning this Chapter, may refer the dispute in writing to the CCMA.4
(2) A dispute in terms of this Chapter must be referred--
(3) The CCMA may, at any time, permit a party who shows good cause to refer a dispute after the relevant time limit set out in subsection (2).
(4) The party who refers a dispute must satisfy the CCMA that--
(5) The CCMA must attempt to resolve the dispute through conciliation.
(6) If the dispute remains unresolved after conciliation--
(7) The relevant provisions of Part C and D of Chapter Vll of the Labour Relations Act, with the changes required by context, apply in respect of a dispute in terms of this Chapter.
7. Burden of proof
Discrimination on one or more of the grounds listed in section 5 (1)5, is unfair unless it is established that the discrimination is fair.
DUTIES OF DESIGNATED EMPLOYERS
8. Designated groups
In this Chapter, Designated groups" means Black people, women and people with disabilities.
9. Designated employers
Except where otherwise provided, this Chapter applies only to designated employers.
10. Duties of designated employers
(1) Every designated employer must implement positive measures for people from designated groups in terms of this Act, in order to achieve employment equity.
(2) A designated employer must--
11. Voluntary compliance with this Chapter
An employer that is not a designated employer may notify the Director-General that it intends to comply with this Chapter as if it were a designated employer.
12. Positive measures
(1 ) Positive measures are measures designed to ensure that people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer.
(2) Positive measures implemented by designated employers must include--
(3) Nothing in this Act requires a designated employer, in implementing employment equity, to--
13. Consultation with employees
(1) A designated employer must take reasonable steps to consult and attempt to reach agreement on the matters referred to in section 14 with--
(2) The employees or their nominated representatives; with whom an employer consults in terms of subsection (1) (b) and (c), taken as a whole, must reflect the interests of--
14. Matters for consultation
(1) A designated employer must consult the parties referred to in section 13 concerning--
15. Disclosure of information
(1) When a designated employer engages in consultation in terms of this Chapter, that employer must disclose to the consulting parties all relevant information that will allow those parties to consult effectively.
(2) Unless this Act provides otherwise, the provisions of section 16 7 of the Labour Relations Act, with the changes required by context, apply to disclosure of information.
16. Analysis
(a) A designated employer must collect information and conduct an analysis, as prescribed 8 of its employment policies, practices, procedures and the working environment, to identify employment barriers which adversely affect people from designated groups.
An analysis conducted in terms of subsection (1) must include a profile, as prescribed, of the designated employer's workforce within each occupational category and level in order to determine the degree of under-representation of people from designated groups in various occupational categories and levels in that employer's workforce.
17. Employment equity plan
(1 ) A designated employer must prepare and implement an employment equity plan which will achieve reasonable progress towards employment equity in that employer's workforce.
(2) An employment equity plan prepared in terms of subsection (1 ) must state
(3) An employment equity plan may contain any other measures that are consistent with the purposes of this Act.
18. Report
(1 ) A designated employer must submit to the Director-General a report on or before 1 October each year, containing the prescribed information 10
(2) The first report by a designated employer must be submitted 18 months after the date of commencement of this Act or to the date on which the employer became a designated employer.
(3) A report prepared in terms of subsection (1) or (2) must be signed by the chief executive officer of the designated employer.
(4) Every report prepared in terms of this section is a public document.
19. Publication of report
(1) Every designated employer that is a public company must publish a summary of the report required by section 18 in that employer's annual financial report.
(2) Every designated employer in the State that must table the information contained in the report required by section 18, in Parliament.
20. Successive employment equity plans
Before the end of the term of its current employment equity plan, a designated employer must prepare a subsequent employment equity plan.
21. Designated employer must assign manager
(1 ) Every designated employer must--
(2) The assignment of responsibility in terms of subsection (1) to a manager does not relieve the designated employer of any duty imposed by this Act or any other law.
22. Duty to inform
(1 ) An employer must display at the workplace where it can be read by employees a notice in the prescribed form, informing them about the provisions of this Act 11
(2) A designated employer must, in each of its workplaces, place in prominent places that are accessible to all employees--
(3) An employer who has an employment equity plan, must make a copy of the plan available to its employees for copying and consultation.
23. Duty to keep records
An employer must establish, and for the prescribed period, maintain records in respect of its workforce, its employment equity plan, and any other records relevant to its compliance with this Act.
24. Disputes about this Chapters 12
(1) Any party to a dispute about the interpretation or application of any provision of this Chapter may refer the dispute in writing to the CCMA.
(2) A dispute in terms of subsection (1) may be referred only within six months after the act or omission that forms the subject of the dispute.
(3) At any time, the CCMA may permit a party who shows good cause to refer a dispute after the relevant time limit set out in subsection (2).
(4) The party who refers a dispute must satisfy the CCMA that--
(5) The COMA must attempt to resolve the dispute through conciliation.
(6) If the dispute remains unresolved after conciliation, any party to the dispute may request the COMA to resolve the dispute by arbitration.
(7) The relevant provisions of Part C of Chapter Vll of the Labour Relations Act, with the changes required by context, apply in respect of a dispute in terms of this Chapter.
COMMISSION FOR EMPLOYMENT EQUITY
25. Establishment of Commission for Employment Equity
The Commission for Employment Equity is established.
26. Composition of Commission for Employment Equity
(1 ) The Commission consists of a chairperson and eight other members appointed by the Minister to hold office on a part-time basis.
The members of the Commission must include
(3) The Chairperson and the members of the Commission--
(4) The Minister must appoint a member of the Commission to act as chairperson whenever the office of chairperson is vacant.
(5) Whenever the chairperson is absent from the Republic or from duty, or for any other reason is temporarily unable to function as chairperson, the members of the Commission must choose from among themselves a person to act in the capacity of chairperson during the absence of the chairperson.
(6) The Minister may determine--
(8) The Minister may remove the chairperson or a member of the Commission from office for--
27. Functions of Commission for Employment Equity
(1) The Commission advises the Minister on--
(2) In addition to the functions in subsection (1) the Commission may--
28. Staff and expenses
Subject to the laws governing the public service, the Minister must provide the Commission with the staff that the Minister considers necessary for the performance of its functions.
29. Public hearings In performing its functions, the Commission may--
30. Report by Commission for Employment Equity
The Commission must prepare a written annual report to the Minister.
MONITORING, ENFORCEMENT AND LEGAL PROCEEDINGS
MONITORING AND ENFORCEMENT
31. Monitoring by employees and trade union representatives
Any employee or trade union representative, may bring an alleged contravention of this Act to the attention of any person, including--
32. Powers of labour inspectors
A labour inspector acting in terms of this Act has the authority to enter, question and inspect as provided for in sections 64 and 65 of the Basic Conditions of Employment Act
33. Undertaking to comply
A labour inspector must request from a designated employer a written undertaking to comply within a specified period if the inspector has reasonable grounds to believe that the employer has failed to--
34. Compliance order
(1 ) A labour inspector may issue a compliance order to a designated employer if--
(2) A compliance order issued in terms of subsection (1 ) must set out the prescribed information, including--
(3) A labour inspector who issues a compliance order in terms of this section must serve a copy of that order on the designated employer.
(4) A designated employer who receives a compliance order served in terms of subsection (3) must--
(5) If a designated employer does not comply with an order within the period stated in it, or does not object to that order in terms of section 35, the Director-General may apply to the Labour Court to make the compliance order an order of the Labour Court.
35. Objections to compliance order
(1 ) Within 21 days after receiving a compliance order, a designated employer may object to that order by making written representations to the Director-General.
(2) At any time, the Director-General may permit a designated employer to object after the 21-day time limit has expired, if that employer shows good cause for failing to object within that time limit.
(3) The Director-General, after considering the designated employer's representations, the steps taken by the employer to ensure compliance with the relevant provisions of this Act, and any other relevant matter--
(4) The Director-General, after making a decision in terms of subsection (3), and within 60 days after receiving the employer's representations, must serve a copy of that decision on that employer.
(5) A designated employer who receives an order of the Director-General must either--
(6) If a designated employer does not comply with an order of the Director-General, or does not appeal against that order to the Labour Court, the Director-General may apply to the Labour Court for that order to be made an order of the Labour Court.
36. Appeal from compliance order
(1) Within 21 days after receiving a compliance order in terms of section 35 (4), a designated employer may appeal against that order to the Labour Court.
(2) At any time, the Labour Court may permit the designated employer to appeal after the 21 day time limit has expired, if that employer shows good cause for failing to appeal within that time limit.
(3)If an employer has appealed from an order of the Director-General, that order is suspended until the later of--
37. Register of designated employers
(1) The Minister must keep a register of designated employers that have submitted the reports required by section 18.
(2) The register referred to in subsection (1) is a public document.
38. State contracts
(1 ) Every employer that makes an offer to conclude an agreement with any organ of State for the furnishing of supplies or services to that organ of State or for the hiring or letting of anything, must--
(2) The employer referred to in subsection (1) may request a certificate from the Minister confirming its compliance with Chapter II, or Chapters II and III, as the case may be.
(3) A failure to comply with the relevant provisions of this Act
is sufficient ground for rejection of any offer to conclude an agreement
referred to in subsection (1 ) or for cancellation of the agreements 13
39. Review by Director-General
(1) The Director-General may conduct a review to determine whether an employer is complying with this Act.
(2) In order to conduct the review the Director-General may--
40. Assessment of compliance
In determining whether a designated employer is implementing employment equity in compliance with this act, the Director-General, in addition to the factors stated in section 12 14, must take into account--
41. Outcome of Director-General's review
Subsequent to a review in terms of section 39, the Director-General may--
42. Failure to comply with Director-General's recommendation
(1) If an employer fails to comply with a recommendation made by the Director-General in terms of section 41 (b) the Director-General may refer the employer's non-compliance to the Labour Court.
LEGAL PROCEEDINGS
43. Conflict of proceedings
(1) If a dispute has been referred to the CCMA by a party in terms of Chapter II or III, and the issue to which the dispute relates also forms the subject of a referral to the Labour Court in terms of section 42, the CCMA proceedings must be stayed until the Labour Court makes a decision on the referral in terms of section 42.
(2) If a dispute has been referred by any party in terms of Chapter II or III against at, employer being reviewed by the Director-General in terms of section 39, the dispute may not be conciliated or adjudicated until the review has been completed and the employer has been informed of the outcome.
44. Consolidation of proceedings
Disputes concerning contraventions of this Act by the same employer may be consolidated.
45. Powers of commissioner in arbitration proceeding
ln any arbitration proceedings in terms of this Act, a commissioner of the CCMA may make any appropriate arbitration award that gives effect to a provision of this Act.
46. Jurisdiction of Labour Court
The Labour Court has exclusive jurisdiction to determine any dispute about the interpretation or application of this Act, except where this Act provides otherwise.
47. Powers of Labour Court
(1) Except where this Act provides otherwise, the Labour Court may make any appropriate order or request, including--
(2) If the Labour Court decides that an employer has unfairly discriminated against any employee, the Court may make any appropriate order including--
(3) If the Labour Court decides that an employer, in dismissing an employee, unfairly discriminated against that employee, the Court may make any order that it considers appropriate in the circumstances, but the Court--
The Labour Court, in making any order, may take into account any delay on the part of the party who seeks relief in processing the dispute in terms of this Act.
If the Labour Court declares that the medical testing of an employee as contemplated in section 5 (4) is justifiable, the court may make any order that it considers appropriate in the circumstances, including imposing conditions relating to--
PROTECTION OF EMPLOYEE RIGHTS
48. Protection of employee rights
(1) No person may discriminate against an employee who exercises any right conferred by this Act.
(2) Without limiting the general protection conferred by subsection (1), no person may threaten to do, or do any of the following--
(3) No person may advantage, or promise to advantage, an employee in exchange for that employee not exercising any right conferred by this Act or not participating in any proceedings in terms of this Act.
(4) Nothing in this section precludes the parties to a dispute arising out of an alleged breach of any right conferred by this Part, from concluding an agreement to settle the dispute.
(5) For the purposes of this section employee" includes a former employee or an applicant for employment.
49. Procedure for disputes
(1 ) If there is a dispute about the interpretation or application of this Part, any party to the dispute may refer it in writing to the CCMA.
(2) The CCMA must attempt to resolve a dispute referred to it in terms of this Part through conciliation.
(3) If the dispute remains unresolved after conciliation--
(4) In respect of a dispute in terms of this Part, the relevant provisions of Part C and D of Chapter Vll of the Labour Relations Act apply, read with the changes required by the context.
GENERAL PROVISIONS
50. Codes of good practice
(1) The Minister, after consultation with the Commission, may--
(2) Any code of good practice, or any change to, or replacement of, a code of good practice must be published in the Gazette.
51. Regulations
The Minister, may, by notice in the Gazette, make any regulation consistent with this Act regarding--
52. Minister empowered to add to and change Schedules
The Minister, may, by notice in the Gazette, at any time add to, change or replace any Schedule to this Act.
53. Delegations
(1) The Minister may delegate any power conferred, or duty imposed, upon the Minister in terms of this Act, except the powers and duties contemplated in sections 26 (1), 26 (4), 26 (6), 26 (7), 50, 51, 52, 55 (4) and 57 (4).
(2) A delegation must be in writing and may be subject to any conditions or restrictions determined by the Minister.
(3) The Minister may at any time--
54. Designation of Organs of State
Within six months after the commencement of this Act, the President, after consultation with the Minister responsible for the Public Service and Administration, must publish a notice in the Gazette listing every designated employer within any organ of State.
55. Breach of confidence
(1 ) Any person who discloses any confidential information acquired in the performance of a function in terms of this Act, commits an offence.
(2) Subsection (1) does not apply if the information--
(3) A person convicted of an offence in terms of this section may be sentenced to a fine not exceeding R10 000.
(4) The Minister, in consultation with the Minister of Justice and by notice in the Gazette, may amend the maximum amount of the fine referred to in subsection (3)
56. Liability of employers
(1 ) If it is proved that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by that employee's employer, would constitute a contravention of a provision of this Act, both the employee and the employer must be taken to have contravened the provision.
(2) Despite subsection (1), an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.
57. Obstruction, undue influence and fraud
(1 ) No person may--
(2) No employer may knowingly take any measure to avoid becoming a designated employer.
(3) Any person who contravenes a provision of this section commits an offence and may be sentenced to a fine not exceeding R10 000.
(4) The Minister, in consultation with the Minister of Justice and by notice in the Gazette, may amend the maximum amount of the fine referred to in subsection(3)
58. This Act binds the State
This Act binds the State.
59. Application of Act when in conflict with other laws
If any conflict relating to a matter dealt with in this Act arises between this Act and the provisions of any other law other than the Constitution or an Act expressly amending this Act, the provisions of this Act prevail.
60. Repeal of laws and transitional arrangements
Each of the laws referred to in the first two columns of Schedule 3 is repealed to the extent specified opposite that law in the third column of that Schedule.
61. Definitions
In this act, unless the context otherwise indicates--
"bargaining council" means a bargaining council registered in terms of the Labour Relations Act and includes, in relation to the public service, the bargaining councils referred to in section 35 of the Labour Relations Act.
"Basic Conditions of Employment Act" means the Basic Conditions of Employment Act, 1997;
"black people" is a generic term which means Africans, Coloureds and Indians.
"CCMA" means the Commission for Conciliation, Mediation and Arbitration established by section 112 of the Labour Relations Act;
"code of good practice" means a document issued by the Minister in terms of section 50;
"collective agreement" means a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand--
"Commission" means the Commission established in terms of section 25;
"Council" means a bargaining council and a statutory council;
"Constitution" means the Constitution of the Republic of South Africa, 1996 (Act No. 188 of 1996);
"Director-General" means the Director-General: Labour;
"designated employer" means--
"dismissal" has the meaning assigned in section 186 of the Labour Relations Act;
"dispute" includes an alleged dispute;
"employee" means any person other than an independent contractor--
and Employed" and "employment" have meanings corresponding to that of employee;
"employment law" means any provision of this Act or any of the following Acts:
"employment policy or practice" includes, but is not limited to--
"family responsibility" means the responsibility of employees in relation to their dependent children, or in relation to other members of their immediate family who need their care or support;
"labour inspector" means a person appointed in terms of section 65 of the Basic Conditions of Employment Act, 1997;
"Labour Relations Act" means the Labour Relations Act, 1995 (Act No. 66 of 1995);
"Minister" means the Minister of Labour;
"NEDLAC" means the National Economic, Development and Labour Council established by section 2 of the National Economic, Development and Labour Council Act, 1994 (Act No. 35 of 1994);
"organ of State" means an organ of State as defined in section 239 of the Constitution;
"people from designated groups" or "designated groups" means black people, women and people with disabilities;
"people with disabilities" means people who have a long term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment;
"public service" means the public service referred to in section 1 (1) of the Public Service Act, 1994 (promulgated by Proclamation No. 103 of 1994), and includes any organisational component contemplated in section 7 (4) of that Act, and specified in the first column of Schedule 2 to that Act, but excluding--
"pregnancy" includes any medical circumstances related to pregnancy;
"prescribed" means established by a regulation made in terms of section 51;
"reasonable accommodation" means any modification or adjustment to a job or to the working environment that will enable a person with a disability to have access to, participate or advance in employment;
"registered employers' organisation" means an employers' organisation as defined in section 213 of the Labour Relations Act and registered in terms of section 96 of that Act;
"registered trade union" means a trade union as defined in section 213 of the Labour Relations Act and registered in terms of section 96 of that Act;
"remuneration" means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State;
"Republic" means the Republic of South Africa as defined in the Constitution;
"serve" or "submit" in relation to any communication, means either--
"statutory council" means a council established in terms of Part E of Chapter 111 of the Labour Relations Act;
"suitably qualified person" means a person who has the abilities, formal qualifications or relevant experience necessary to perform a particular job;
"testing" includes any test, question, inquiry or other means designed to ascertain, or which has the effect of enabling the employer to ascertain, whether an employee has any medical condition;
"this Act" includes any regulations made in terms of section 51, but does not include Schedule 2;
"trade union representative" means a member of a registered trade union who is elected to represent employees in a workplace;
"workplace" means a place where employees work; and
"workplace forum" means a workplace forum established in terms of Chapter V of the Labour Relations Act.
62. Short title and commencement
(1) This Act is called the Employment Equity Act, 1997.
(2) This Act takes effect on a date to be determined by the President by proclamation in the Gazette. The President may determine different dates in respect of different provisions of this Act.
(3) If, in terms of subsection (2), different dates are determined for particular provisions of this Act--
FOOTNOTES
1: Italicized words or phrases are defined
in section 61.
2: These persons are not defined as "employees"
under the Labour Relations Act. However, they could bring unfair discrimination
matters before the Constitutional Court, or lodge complaints with the Human
Rights Commission.
3: A Code of Practice will be issued defining the various
forms of workplace harassment, in particular, racial and sexual harassment.
4: See flow diagram 1 in Schedule 2.
5: Section 5 (1) lists the following as prohibited grounds
of discrimination:
"race, gender, sex, pregnancy, marital status, family responsibility,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, political opinion, culture, language and birth"
6: Section 86 (1 ) © of the Labour Relations
Act, should be amended as follows:
"an employment equity plan as contemplated in section 17 of the Employment
Equity Act, 1 997. Section 84 (1 ) of the Labour Relations Act, should
be amended by the addition of subsection (e) as follows: ~(e) any matter
referred to in section 14 of the Employment Equity Act, 1997".
7: Section 16 of the LRA contains detailed provisions about
disclosure of information, and disputes concerning disclosure.
8: The Minister will issue Regulations concerning the conduct
of an analysis. However, the employment policies and practices defined
in section 61 are an indication of the potential areas of both direct and
indirect discrimination that should be subject to analysis.
9: Guidelines regarding the factors to be taken into account
in determining numerical goals will be included in a Code of Good Practice.
However, the factors listed in section 40 (Director-General's assessment
of compliance) are relevant to setting numerical goals in each organisation.
10: For instance, the first report will relate to the
initial development of and consultation around an employment equity plan.
The subsequent reports will detail the progress made in implementation
of the employment equity plan.
11: The Minister will issue regulations containing a standard
notice, in all official languages
12: See Flow Diagram in Schedule 2.
13: The State Tender Board Act, No. 86 of 1968 should
be amended by the insertion of a new paragraph before paragraph (h) as
follows:
"(h) require an employer that is a designated employer under the Employment
Equity Act, 1997, to submit to the Board a certificate issued by the Minister
pursuant to section 38 of the Employment Equity Act, as a condition of
eligibility for entering into any agreement referred to in paragraph (a);"
14: Section 12 states that positive measures must include
measures to eliminate employment barriers; diversity measures; reasonable
accommodation; affirmative action measures and training and development.
15: This is an enabling Act. The codes of good practice
are intended to provide employers with information that may assist them
in implementing this Act, particularly Chapter lilt Issues that are likely
to be the subject of codes include the following:
The preparation of employment equity plans;
advertising, recruitment procedures and selection criteria;
special measures to be taken in relation to persons with disabilities including
benefit schemes;
special measures to be taken in relation to persons with family responsibilities;
sexual harassment and racial harassment;
internal procedures to resolve disputes about the interpretation or
application of this Act; and
sector-specific issues.
16: Regulations will be issued prescribing the manner
of calculating the number of employees employed by a designated employer
for the purpose of determining when the employer is considered to employ
50 or more employees.
MAXIMUM PERMISSIBLE FINES THAT MAY BE IMPOSED FOR CONTRAVENING THIS ACT
This Schedule sets out the maximum fine that may be imposed in terms of this Act for the contravention of certain provisions of this Act.
| PREVIOUS CONTRAVENTION |
CONTRAVENTION |
| No previous contravention |
R500 000 |
| A previous contravention in respect of the same provision |
R600 000 |
| A previous contravention within the previous 12 months or two previous contraventions in respect of the same provision within three years |
R700 000 |
| Three previous contraventions in respect of the same provision within three years |
R800 000 |
| Four previous contraventions in respect of the same provision within three |
R900 000 |
DISPUTE RESOLUTION: FLOW DIAGRAMS
This Schedule contains flow diagrams that provide guidelines to the procedures for the resolution of some of the more important disputes that may arise under this Act. This Schedule is not part of this Act. It does not have the force of law. The flow diagrams are intended only to provide assistance to those parties who may become involved in a dispute.
The flow diagrams do not indicate the rights that parties may have to
seek urgent relief, nor do they indicate the right of review or appeal
that parties have to the Labour Court, the Labour Appeal Court or the Constitutional
Court in certain cases. This Act sets out the circumstances in which
these rights may be exercised.
LAWS REPEALED
| Number and year of | Short title | Extent of repeal |
| Act No. 66 of 1995 | Labour Relations Act, 1995 | Section 187 (1) (e) and (f) and (2) Item 2 (1) (a), (2) and (4) (a) of Schedule 7 |
TRANSITIONAL ARRANGEMENTS
DISPUTES ARISING BEFORE COMMENCEMENT OF THIS ACT
1. Definitions
In this Schedule, unless the context indicates otherwise
"pending" means existing immediately before this Act came into operation; and
"Repealed provisions of the Labour Relations Act" means the provisions of the Labour Relations Act repealed in terms of Schedule 3.
2. Disputes arising before commencement of this Act
Any dispute contemplated in section 187 (1) (e) or (f) or item (2) (1) (a) of Schedule 7 of the Labour Relations Act that arose before the commencement of this Act, must be dealt with as if the repealed provisions of the Labour Relations Act had not been repealed.
3. Courts
(1) In any pending dispute contemplated in section 187 (1) (e) or (f) or item (2) (1) (a) of Schedule 7 of the Labour Relations Act in respect of which the Labour Court or the Labour Appeal Court had jurisdiction and in respect of which proceedings had not been instituted before the commencement of this Act, proceedings must be instituted in the Labour Court or Labour Appeal Court (as the case may be) and dealt with as if the repealed provisions of the Labour Relations Act had not been repealed.
(2) Any dispute contemplated in section 187 (1) (e) or (f) or item (2) (1) (a) of Schedule 7 of the Labour Relations Act in respect of which proceedings were pending in the Labour Court or Labour Appeal Court must be proceeded with as if the repealed provisions of the Labour Relations Act had not been repealed.
(3) Any pending appeal before the Labour Appeal Court must be dealt with by the Labour Appeal Court as if the repealed provisions of the Labour Relations Act had not been repealed.
(4) When acting in terms of subsections (1 ) to (3), the Labour Court or Labour Appeal Court may perform or exercise any function or power that it had in terms of the repealed provisions of the Labour Relations Act.