Summary of the Employment Equity Act, 55
of 1998, issued in terms of Section 25(1)
1. Chapter 1 – Definitions, purpose,
interpretation and application
1.1 Purpose of the Act: Section 2
The purpose of the Act is 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 employment experienced by designated groups, to
ensure their equitable representation in all occupational categories and
levels in the workforce.
1.2 Application of the Act: Section 4
- Chapter II (sections 5 – 11) applies to all
employers and employees.
- Chapter III (sections 12 – 27) applies to
designated employers.
- A designated employer means an employer who
employs 50 or more employees, or has a total annual turnover as reflected in
Schedule 4 of the Act, municipalities and organs of state. Employers can
also volunteer to become designated employers.
- A designated group means black people, women, or
people with disabilities.
- The South African National Defence Force, National
Intelligence Agency, and South African Secret Services are excluded from
this Act.
2. Chapter 2 - Prohibition of Unfair
Discrimination
2.1 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, pregnancy,
marital status, family responsibility, ethnic or social origin, colour, sexual
orientation, age, disability, religion, HIV status, conscience, belief,
political opinion, culture, language, and birth.
2.2 It is not unfair discrimination
to promote affirmative action consistent with the Act or to prefer or exclude
any person on the basis of an inherent job requirement.
2.3 Medical Testing: Section 7
- Medical testing of an employee is permissible only
when legislation requires testing or when this is justifiable for various
reasons.
- HIV testing is prohibited unless such testing is
determined to be justifiable by the Labour Court.
2.4 Psychological Testing: Section 8
Psychological testing and similar assessments are
prohibited, unless the test is scientifically valid and reliable, can be
applied fairly to all employees, and is not biased against any employee or
group.
2.5 Disputes concerning this Chapter :
Section 10
- An employee, or applicant for employment, may
refer a dispute concerning alleged unfair discrimination (or medical or
psychological testing) to the CCMA for conciliation. This must be done
within six months of the alleged discrimination (or testing)..
- If a dispute is not resolved at conciliation, a
party may refer it to the Labour Court for adjudication. The parties to a
dispute may also agree to refer the dispute to arbitration.
- Unfair dismissal disputes in which unfair
discrimination is alleged must be dealt with in terms of the Labour
Relations Act. The dismissal must be referred to the CCMA within 30 days.
3. Chapter 3 – Affirmative Action
3.1 Duties of a Designated Employer: Section
13
- A designated employer must implement affirmative
action measures for designated groups to achieve employment equity.
- In order to implement affirmative action measures,
a designated employer must:
- consult with employees;
- conduct an analysis;
- prepare an employment equity plan; and
- report to the Director-General on progress made
in the implementation of the plan.
3.2 Affirmative Action measures: Section 15
- Affirmative action measures are measures intended
to ensure that suitably qualified employees from designated groups have
equal employment opportunity and are equitably represented in all
occupational categories and levels of the workforce.
- Such measures must include:
- identification and elimination of barriers with
an adverse impact on designated groups;
- measures which promote diversity;
- making reasonable accommodation for people from
designated groups;
- retention, development and training of
designated groups (including skills development); and
- preferential treatment and numerical goals to
ensure equitable representation. This excludes quotas.
- Designated employers are not required to take any
decision regarding an employment policy or practice that would establish an
absolute barrier to prospective or continued employment or advancement of
people not from designated groups.
3.3 Consultation: Sections 16 and 17
A designated employer must take reasonable steps to
consult with representatives of employees representing the diverse interests
of the workforce on the conducting of an analysis, preparation and
implementation of a plan, and on reporting to the Director-General.
3.4 Disclosure of Information: Section 18
To ensure meaningful consultation, the employer must
disclose relevant information to the consulting parties, subject to section 16
of the Labour Relations Act 66 of 1995.
3.5 Analysis: Section 19
A designated employer must conduct an analysis of
employment policies, practices, procedures, and working environment so as to
identify employment barriers that adversely affect members of designated
groups. The analysis must also include the development of a workforce profile
to determine to what extent designated groups are under-represented in the
workplace.
3.6 Employment Equity Plan: Section 20
- A designated employer must prepare and implement a
plan to achieve employment equity, which must:
- have objectives for each year of the plan;
- include affirmative action measures;
- have numerical goals for achieving equitable
representation;
- have a timetable for each year;
- have internal monitoring and evaluation
procedures, including internal dispute resolution mechanisms; and
- identify persons, including senior managers, to
monitor and implement the plan.
3.7 Report : Section 21
- An employer who employs fewer than 150 employees
must submit its first report to the Director-General within 12 months after
the commencement of the Act, and thereafter every 2 years on the first
working day of October.
- An employer who employers 150 or more employees,
must submit its first report 6 months after the commencement of the Act, and
thereafter every year on the first working day of October.
3.8 Designated employer must assign a
manager: Section 24
A designated employer must assign one or more senior
managers to ensure implementation and monitoring of the employment equity plan
and must make available necessary resources for this purpose.
3.9 Income Differentials : Section 27
A statement of remuneration and benefits received in
each occupational category and level of the workforce must be submitted by a
designated employer to the Employment Conditions Commission (ECC).
Where there are disproportionate income
differentials, a designated employer must take measures to reduce it
progressively. Such measures may include collective bargaining, compliance
with sectoral determinations (section 51 of the Basic Conditions of Employment
Act); the application of norms and benchmarks recommended by the ECC, relevant
measures contained in skills development legislation, and any other
appropriate steps.
4. Chapter V – Monitoring, Enforcement and
Legal Proceedings
4.1 Monitoring: Section 34
Employee or trade union representatives can monitor
contraventions of the Act and report to relevant bodies.
4.2 Powers of the Labour Inspector: Section
35
Labour Inspectors are authorised to conduct an
inspection as provided for in sections 65 and 66 of the Basic Conditions of
Employment Act.
4.3 Undertaking to Comply: Section 36
If the inspector has reasonable grounds to believe
that a designated employer has failed to comply with its obligations in terms
of the Act, the inspector will obtain a written undertaking to comply within a
specified period.
4.4 Compliance Order: Section 37
If the designated employer refuses to comply with the
written undertaking, the inspector will issue an order to comply.
4.5 Review by Director-General: Section 43
The Director-General may conduct a review to
determine whether an employer is complying with the Act.. On completion of the
review, the Director-General may make recommendations for compliance within
certain time frames.
4.6 Powers of the Labour Court: Section 50
The Labour Court has the powers to make any
appropriate orders, award compensation, or impose fines.
4.7 Protection of Employee Rights: Section 51
The Act protects employees who exercise their rights
and obligations under the Act against victimisation, obstruction and undue
influence.
5. Chapter VI – General Provisions
5.1 State contracts: Section 53
Designated employers and employers who voluntarily
comply with Chapter III, who seek to do business with any organ of state, will
have to apply for a certificate from the Minister confirming their compliance
with Chapters II and III of the Act. Non-designated employers’ compliance
certificates will pertain to Chapter II.
5.2 Liability of Employers: Section 60
Should employees contravene any provision of this
Act, while performing their duties, the employer will be liable unless the
employer can prove that it did everything in its power to prevent the
undesired act.
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