EMPLOYMENT EQUITY ACT, No 55, 1998 (EEA) PORTFOLIO COMMITTEE ON LABOUR

EE BACKGROUND AND REQUIREMENTS LEGAL FRAMEWORK Constitution of SA Employment Equity Act E E regulations Codes of Good Practice

CONSTITUTION ( Section 9(2)) “Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protects or advance persons, or categories of persons disadvantaged by unfair discrimination may be taken”

PURPOSE OF EE ACT To achieve equity in the workplace by- Promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and implementing affirmative action measures to redress the disadvantages in employemnet experienced by designated groups to ensure their equitable representation in the workplace

EE REGULATIONS It regulates the administration of the Act It is legally binding Contains the prescribed reporting forms

CODES OF GOOD PRACTICE Unpacks key elements and guides employers to implement specific areas of the Act Not fully legally binding, but the courts will consider them in interpreting relevant areas of the Act

CODES OF GOOD PRACTICE (CONT) Codes of good practice on- the preparation, implementation and monitoring of EE plans Key aspects of HIV/AIDS and employment The employment of people with disabilities Integration of EE into Human Resources policies & practices Handling of Sexual Harassment cases in the workplace

PROHIBITION OF UNFAIR DISCRIMINATION All employers must implement measures to eliminate unfair discrimination Unfair discrimination is prohibited on one or more of the following grounds: e.g. race, gender, disability, HIV status, pregnancy, etc. Discrimination can be fair or unfair Discrimination can be direct or indirect

DISPUTE RESOLUTION (UNFAIR DISCRIMINATION) Attempt first to resolve through internal dispute resolution mechanisms Thereafter, refer dispute in writing within six months to CCMA If unresolved from CCMA refer it to Labour Court for adjudication NB: Department of Labour Inspectors have no jurisdiction

WHO IS REQUIRED TO IMPLEMENT AFFIRMATIVE ACTION Designated employers must implement Affirmative Action measures Designated employers are those who have 50 or more employees; or have fewer than 50 employees, but have a turnover threshold that is equal to or above that in Schedule 4 of the Act Employers who are not designated have the option to voluntarily comply

DESIGNATED GROUPS “Designated groups” means Black people (i.e. Africans, Coloureds and Indians), women and people with disabilities who are natural persons and: are citizens of the Republic of South Africa by birth or descent; or are citizens of the Republic of South Africa by naturalisation before the commencement date (i.e. 27 April 1994) of the Constitution of the Republic of South Africa Act of 1993.

ASSIGNING SENIOR MANAGER Employers must assign one or more senior manager(s) for employment equity - they must be: Permanent, report directly to the Chief Executive Officer on employment equity matters. This person must have key employment equity outcomes incorporated into their performance contracts; Given the necessary executive authority and mandate; and Provided with an appropriate budget and access to other required resources.

AFFIRMATIVE ACTION MEASURES Employers must: Consult with employees Conduct an analysis of its workforce and work environment Prepare and implement an EE plan Prepare and submit a report to the Department of Labour

CONSULTATION Employees from both designated and non-designated groups must be consulted on, amongst others, the following: Conducting of an analysis of the workforce and work environment; preparation and implementation of the EE plan; and Submitting a report to DoL

EMPLOYMENT EQUITY PLAN The EE Plan should at least have the following: Annual objectives Affirmative action measures Numerical goals for achieving equitable representation A time table for each year Duration of the plan which must not be shorter than 1 year but not longer than 5 years HIV/Aids measures and programmes Monitoring and evaluation procedures Internal dispute resolution mechanisms Persons, including the assigned manager, responsible for monitoring and implementation Any other prescribed matter

EE REPORTING Employers with 150 and more employees must submit their first report within six months of being designated, and thereafter annually on the first working day of October; and employers with fewer than 150 must submit their first report within twelve months of being designated, and thereafter on the first working day of October of every year that ends with an even number.

EE REPORTING (CONT) All relevant areas of the form must be fully and accurately completed by employers. Designated employers who fail to observe this provision will be deemed not to have reported. Guidance to overcome difficulties on how to complete the form properly must be obtained from the Department prior to completing and submitting the report.

ESTABLISHMENT OF THE COMMISSION FOR EMPLOYMENT EQUITY (CEE) The CEE is constituted of 9 members, including A Chairperson appointed by the Minister 2 representatives from the State 2 representatives from organised business 2 representatives from organised labour; and 2 representatives from community .

KEY FUNCTIONS OF THE CEE CEE’s functions are primarily to advise the Minister on: Codes of good practice Regulations Policy; or any other matter concerning the implementation of the Act

MONITORING, ENFORCEMENT AND LEGAL PROCEEDINGS Labour Inspectors have the power to secure a written undertaking from an employer in order to promote compliance Where an employer does not comply with the written undertaking, that employer may be issued with a compliance order by a Labour Inspector Where an employer still fails to comply with the Compliance order, the employer’s non-compliance will be referred to the Labour Court for adjudication.

DG REVIEW The DG has the power to conduct a review of any organisation in order to determine the extent an employer is complying with the Act The DG may gather any information and may approve or disapprove an employer’s EE Plan The DG may make recommendations to an employer Where an employer fails to comply with the DG’s recommendations, the matter may be referred directly to the Labour Court

KEY CHALLENGES Even if an employer has not basically complied with the requirements of the Act for many years, a Labour Inspector is forced to secure a written undertaking, followed by a Compliance Order before referring to the Labour Court Even if an employer has not basically complied with the requirements of the Act for many years, when reviewing an employer’s progress the DG is forced to make recommendations before referring the employer to the Labour Court Employers are generally not taking advantage of Skills Development to reach out and develop people from the designated groups

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