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1 Chapter
I-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-
(a) promoting equal opportunity and fair treatment in
employment through the elimination of unfair discrimination; and
(b) 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
(a) Chapter II (sections 5-11) applies to all employers and
employees.
(b) Chapter III (sections 12-27) applies to designated
employers.
(c) 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.
(d) A designated group means black people, women and people
with disabilities.
(e) The South African National Defence
Force, National Intelligence Agency, and South African Secret Services are
excluded from this Act.
2 Chapter II- 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
(a) Medical testing of an employee is permissible only when
legislation requires testing or when this is justifiable for various
reasons.
(b) 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
(a) 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).
(b) 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.
(c) 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 III-Affirmative Action
3.1 Duties of a Designated Employer:
section 13
(a) A designated employer must implement affirmative action
measures for designated groups to achieve employment equity.
(b) 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
(a) 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.
(b) 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.
(c) 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) 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
(a) 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 two years on the first
working day of October.
(b) An employer who employs 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,
1997); 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, 1997.
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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