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

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

3. 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”

4. 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

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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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.

12. 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.

13. 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

14. 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

15. 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

16. 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.

17. 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.

18. 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 .

19. 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

20. 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.

21. 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

22. 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

23. THANK YOU