ABR224 Lecture 3 EEA

DUTIES OF DESIGNATED EMPLOYER [Sect. 13]  1) Consultation with Employees:  In order to ensure consensus regarding the implementation of the equity plan and reporting to the Director General. Consult also with the Trade Unions and Employer’s Organisations. All relevant information must be divulged by the Employer.  2) Personnel audit:  Analysis of Employment policies and –obstacles. Analysis must profile the workforce and identify any under-representation.

.  Drafting & Implementation of EE-plan:  The plan must include: Annual objectives to be achieved; AA-measures to be implemented; The numerical goals to achieve equitable representation, as well as the timetable (and strategies) within which these goals are to achieved; Duration of the plan; Procedures for monitoring and evaluating the plan; The dispute resolution procedures to be followed in relevant disputes; Parties responsible for the monitoring and enforcement of the plan.  The plan must be displayed in the workplace and made available to employees.

.  The Affirmative action measures to be instituted include:  Identify and eliminate employment barriers which adversely affect people from designated groups.  Measures designed to further diversity in the workplace based on equal dignity and respect of all people.  Reasonable accommodation (modification or adjustment) for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented in the workplace.  Measures to ensure the equitable representation of suitably qualified people from designated groups at all occupational levels.  Measures to retain and develop people from designated groups and to implement appropriate training measures.

.  Report to the Director General regarding the progress made with the implementation of the plan:  An ER with <150 Employees must report to the DG within 12 months of becoming a designated ER, and thereafter every 2 years (in Oct.);  An ER with >150 Employees – report within 6 months and thereafter once annually (in Oct.).  Report must refer to progress made with implementation of the plan and must include info regarding remuneration received in each occupational category.  The report is a public document – A public company must include it in its annual financial report; An organ of state must table the document in Parliament.

Commission for Employment Equity  Established in terms of Chapter IV of the Act.  Advisory body who advises the Minister on:  Codes of good practice  Regulations made by the Minister  Policy  Any other matter relating to the Act  CEE may research and report to the Minister.  Award employers  Award employers for their achievements in furthering the purposes of the Act.  CEE is required to submit an annual report to the Minister. Klasnotas is onvoldoende vir studie doeleindes.

Monitoring, enforcement and legal proceedings  Employers, trade unions, labour inspectors, DG and the Labour Court play a role in monitoring and compliance with the Act.  Labour inspectors (s 35-40)  May enter any workplace, question any person and inspect documents, books, etc in an attempt to establish whether the employer is complying with the provisions of the Act.  Request a written undertaking from an employer to comply with certain matters.  Issue compliance order. Klasnotas is onvoldoende vir studie doeleindes.

 Compliance orders are issued when a designated employer refuses to give a written undertaking when requested to do so.  Compliance order must contain:  the name of the employer and the workplace,  the provisions of the Act which have not been met,  details of the conduct constituting non-compliance,  any written undertaking given by the employer,  steps the employer is required to take within a specified time to comply, and  the maximum fine that may be imposed for non- compliance.  A copy of the compliance order must be served on the employer, who must display it at the workplace.  Non-compliance / no objection = DG may apply to the Labour Court to have the compliance order made an order of the Court. Klasnotas is onvoldoende vir studie doeleindes.

 Objection to a compliance order:  An employer may object to a compliance order by submitting written representations to the DG within 21days after receipt thereof.  Director-General (s41-43)  Assessment of compliance: 2-Fase Process:  1)  1) Has the designated employer made reasonable efforts to implement an equity plan? Factors to take into consideration: 1. Extend to which suitably qualified people from the designated groups are equitably represented within each occupational category. 2. Demographic profile of the national and regional economically active population. Klasnotas is onvoldoende vir studie doeleindes.

 Pool of suitably qualified people from designated groups available.  Economic and financial factors.  The number of present and planned vacancies and the employer’s labour turnover.  2) Review whether an employer is complying with the Act:  DG can request a copy of the employer’s analysis, equity plan, etc.  Meetings can be held.  Approve an employers EEplan or make recommendations.  Non compliance of recommendations are referred to the Labour Court. Klasnotas is onvoldoende vir studie doeleindes.

 Labour Court (s49-50)  Exclusive jurisdiction to determine any dispute about interpretation or application of the Act. May award any of the following:  Compensation / damages  Fine  Make a compliance order an order of the Labour Court.  Direct the CCMA to conduct an investigation  Hear an appeal of the employer  Make an appropriate order that is just and equitable in the circumstances  Direct an employer to comply with Chapter III  May order medical testing of an employee justifiable and may impose conditions related to the testing.  Disputes referred in terms of Chapter II & Review of an employer at CCMA: CCMA proceedings are stayed until LC determines the DG’s referral. Klasnotas is onvoldoende vir studie doeleindes.

Protection of employee rights  Definition of an employee includes:  Previous employees.  Job applicants.  No person may prevent an employee from exercising any right.  Employee may not be prejudiced for exercising his rights.  Employee may not be favoured for not exercising his rights. Klasnotas is onvoldoende vir studie doeleindes.