|
Johanette Rheeder
The long awaited and discussed amendments to the Employment Equity Act were finally published for public comment as the Employment Equity Bill no 33873 of 17 December 2010. It should be noted that it is not law yet, and until the amendments have been enacted, the EEA applies as is. Most of the amendments are not a surprise as many of the issues have been widely discussed and commented on in the past and the legislature made good on the promise to tighten up the sanctions and enforcement of the EEA. The main purpose of the bill is to amend the EEA to comply with ILO standards, further promote equity and equality, increase fines and align the EEA with other pieces of legislation.
Definitions:
Local spheres of Government have now been included in the definition of a Designated Employer. Designated groups are now better defined to also clear the situation dealing with foreign employees. Designated employees are defined as Black people, Women and Disabled people who are citizens by birth or descend or became citizens by naturalisation before 27 April 1994, or who were entitled to become citizens prior to 27 April 1994, had it not been for apartheid.
The explanation of the previous EEA2 (prior to 2009) form has now been included in the EEA in an amended form. First of all, all citizens are included regardless whether you are born before or after 1994 in South Africa. It also includes citizens who became citizens by way of naturalisation before 27 April 1994 or were entitled to, had it not be for apartheid. Foreign nationals who were not entitled to citizenship by 27 April 1994 are still excluded. Independent contractor is now defined as a person who works for another or supplies a service to another as part of his/her business, undertaking or professional practice.
Equal pay for work of equal value
The amendment bill seeks to introduce the principle of equal pay for equal value in section 6 of the EEA by adding a fourth sub clause. Section 6 prohibits unfair discrimination and harassment. In terms of this new sub clause, it is also unfair for an employer to differentiate between employees remuneration on one or more of the grounds of discrimination where those employees provide work of the same or substantially the same or equal value. The burden of proof will be on the employer to show that the differentiation is in fact based on fair reasons such as experience, skill, responsibility and qualifications.
It should therefore be noted that the bill does not outright prohibit differentiation. It must be based on an unfair discriminatory reason before it can be sanctioned under the bill. The Minister may after consultation with the Commission issue a code of good practice setting out the criteria and methodology for assessing work of equal value.
Psychometric testing
Only psychometric tests that have been certified by the Health Professions Council can be used in assessment tests.
Dispute resolution
Section 10 is dramatically changed. Sub section 6 is changed to allow employees earning below the threshold of section 6(3) of the BCEA to refer a dispute to arbitration in the CCMA after conciliation. Section 11, dealing with the burden of proof, is substituted with a new clause. Under the current clause the employee bears the burden the proof of showing discrimination and the employer must then establish that it is fair. The new proposed clause is aligned with the burden of proof in the Promotion of Equality and Prevention of Unfair Discrimination Act.
Under the proposed section the employee must only make out a prima facie case of unfair discrimination. The employer must then prove that no discrimination took place or if discrimination did take place that it was not on one of the prohibited grounds of section 6(1). The clause expands on the statement “on one or more grounds” of section 6(1) by adding grounds not listed in 6(1) where the discrimination causes or perpetuates systematic disadvantage in the workplace, undermines human dignity or adversely affects the equal enjoyment of a person’s right and freedom in a manner that is comparable to discrimination on a ground listed in 6(1).
Sanctions
The sanctions in the bill have been simplified in the sense that it is easier for the Director General to impose sanctions on the employer for not following the EEA. Section 20 dealing with the EE plan is amended by adding a clause allowing the DG to apply to the Labour Court to impose a fine on an employer who fails to prepare and implement an EE plan.
Reporting, monitoring and enforcement
Section 21 deals with reporting. The distinction between employers with 150 employees and less is deleted and substituted with a new clause requiring all designated employers to submit its first report within 12 months of becoming a designated employer. Thereafter all designated employers must submit a report once every year on the first of October. Reports must contain the prescribed information and signed by the CEO. A new clause is added to require employers who cannot submit to inform the DG by end of August if the employer cannot submit a report in a particular year. If he employer fails to submit or the DG does not accept the reasons it can apply to the Labour Court to impose a fine on the employer.
Reporting to the ECC on occupational categories has been deleted in the new subsection 27(1) and employers must only report on the occupational levels. Failure to comply with section 27 can result in a fine of between 2 and 10% of annual turnover.
Section 36 dealing with the undertaking of the employer to comply with a labour inspector’s request has been deleted. This is part of the bill’s aim of simplifying the enforcement process. Labour inspectors can still enter, question and inspect the employment equity actions of employers but does not have to get an undertaking any more. They can immediately issue a compliance order in terms of the new section 37(1) if the employer failed or refused to consult, conduct an analysis, publish a summary of its report, assign responsibility to a senior manager, inform its employees of the EEA, maintain records and prepare and implement an EE Plan.
The employer must comply with the compliance order and inform the inspector thereof, or if it cannot, also of the reasons of non compliance. If the employer does not comply then the DG may amend the order or apply to the Labour Court to make the compliance order an order of the court. This the employer can defend but the employer does not have the right to object or appeal the order to the DG any more as these processes in terms of sections 39 and 40 are repealed. The aim hereof is to simplify the procedure and not to allow delaying of the enforcement of the EEA via objections and appeals to the DG.
Any objection the employer wants to lodge can now only be done via defending or application to the Labour Court only. Section 42 is also amended. In the assessment of compliance the DG may also take various factors into consideration in determining equal representation in the occupational levels (occupational categories has been deleted).
It seems that employers cannot choose between national and regional demographics any more. Sub section 42(a) (1) has been changed to “demographic profile of the economic active population”. Part of the assessment also now includes reasonable steps by employers to train suitably qualified people from designated groups. Reasonable “efforts” has also now been substituted with “steps” making it stricter as efforts seems not to be acceptable any more. The accessible pool, economic factors of the industry and the employer and the progress of other employers has been deleted. It seems that this clause is becoming stricter as several of the reasons accessible to employers as to why they are not complying, have now been deleted.
The review process of section 43 and 44 mainly remains the same, however if the employer fails to comply with a request or recommendation by the DG, the DG may apply to the Labour Court for an order to comply or a fine. Any challenge to the validity of the DG’s request or recommendation may only be made by the employer in the process instituted by the DG in the Labour Court.
Positive obligation
In terms of the current EEA, a designated employer has a positive obligation to find and eradicate unfair discrimination. In terms of the new sub section 27(2) another positive obligation has been added to take measures to progressively reduce any disproportionate income differentials subject to guidance by the Minister on reducing income differentials.
It is clear that these amendments to the EEA aim at reducing income differentials and now places an obligation on the employer to investigate and eradicate disproportionate income differentials and move towards equal pay for work of equal value. Employers who do not comply with this can be fined by the DG and the Labour Court anything between 2 and 10% of its annual turnover. Employers are advised to start adding this obligation to its IR practices and planning, failing which it can land up a hefty fine.
Labour Brokers
Keeping in tune with the other legislative amendments, the section dealing with labour brokers has been repealed.
Schedules
Schedule 1 is amended by substantively increasing fines. Section 27 is added and contravention of various of the sections of the EEA will attract fines of between 2 to 10% of turnover of the employer. The turnover threshold of designated employers, schedule 4, is also amended by increasing agriculture from 2 million to 5 million.
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
In association with Gildenhuys, Lessing and Malatji
www.glmi.co.za
|
