*Dr Emma FergusInstitute for Development and Labour Law, University of Cape Town
EMPLOYMENT EQUITY AMENDMENT BILL, 2012
An adequate response to the deficiencies of the current EEA?
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OBJECTS OF THE EEA BILL
*4 Formal themes:
•Giving effect to & regulating the Constitutional right to equality •Giving effect to RSA’s obligations as a member state of the ILO•Enhancing the efficiency of labour institutions•Rectifying anomalies & clarifying uncertainties arising from current EEA
*Explanatory Memorandum to the EE Bill
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OBJECTS OF THE EEA BILL*Further apparent (sub)themes:
•Streamlining & refining text of current EEA– ‘Categories’ removed from phrase ‘categories and levels’
throughout EEA•Enhancing consistency between EEA, LRA (& proposed amendments), PEPUDA & case law– TES provisions– Burden of proof– Listed & arbitrary grounds provided for in definition of
unfair discrimination
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OBJECTS OF THE EEA BILL
• Enhancing enforcement / compliance mechanisms– All designated employers to report annually on
implementation of EE plans – Minister’s mandate, to provide for simplified forms &
procedures for designated employers with fewer than 150 employees, replaced with a discretion
– Max fines payable for noncompliance increased (x 3-4)
– Annual turnover threshold increased (x 3)
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Giving effect to the Constitutional right to equality
*A few examples…•Section 1:– Definition of ‘designated group’ amended to
ensure that foreigners who became citizens of SA after 27 April 1994 (& who were not prevented from acquiring citizenship as a result of Apartheid before then), do not benefit from AA• Consistent with repealed regulations (GNR 841 No.
29130 of 18 August 2006)
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Giving effect to RSA’s obligations as member of the ILO
• Section 6(4):– Introduced to clarify that differences in Ts & Cs of
employment between employees (of the same employer) performing the same / substantially similar work / work of equal value, if linked to a listed or arbitrary ground, is unfair discrimination
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Enhancing efficiencies of labour market institutions
• Section 10:– Amended to allow parties to refer disputes ito EEA
to CCMA IF:• Sexual harassment OR• Employee/applicant earns less than annual salary
threshold OR• Consent of both parties
– AND Parties may appeal to Labour Court against commissioner’s award• Potential to undermine purpose and nature of CCMA?
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Enhancing efficiencies of labour market institutions
• BUT… Section 48:– Amended to limit CCMA awards to annual salary
threshold• So proceed with caution!
• Section 53– Minister may publish code of good practice to be
taken into account when assessing EEA compliance for the purposes of state contracts• Potentially useful
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Enhancing efficiencies of labour market institutions
*Sections 21(6): • Introduced to allow D-G to apply directly to LC to
impose fines for failure to file annual reports without submitting reasons for failure / without good cause
*Similarly, section 20(7):•Introduced to allow D-G to apply directly to LC to impose fines for failure to prepare / implement EE plans
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Enhancing efficiencies of labour market institutions
*Sections 36, 37, 39, 40, 42 & 45•Eliminate mandatory steps to be taken / criteria to be considered when assessing EEA compliance
*EG: Revision & reduction of factors for consideration when assessing whether employer has implemented EE plan in compliance with EEA –Opportunity for employers to justify non-compliance (‘on reasonable grounds’)
•Removes provision for employers to object to / appeal against compliance orders
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Rectifying anomalies & clarifying uncertainties with current EEA
*Section 6(1)– Amended to clarify that discrimination =
prohibited not only on listed grounds but also on arbitrary grounds
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Rectifying anomalies & clarifying uncertainties with current EEA
*Section 11 •Burden of proof in unfair discrimination disputes amended as follows:
‘(1) If unfair discrimination is alleged on a ground listed in section 6(1), the employer against whom the allegation is made must prove, on a balance of probabilities, that:
a) such discrimination did not take place as alleged; orb) such discrimination is rational and not unfair or is not otherwise justifiable.
(2) If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that:
a) the conduct complained of is not rational;b) the conduct complained about amounts to discrimination; andc) the discrimination is unfair.’
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Rectifying anomalies & clarifying uncertainties with current EEA
*Section 11•Purpose (according to the Explanatory Memorandum) is to bring EEA in line with PEPUDA but…
a) significant differences remainb) amended section 11 = arguably
inconsistent with ILO Convention 111 of 1958c) amended section = likely to cause
confusion, rather than clarification
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Rectifying anomalies & clarifying uncertainties with current EEA
*Section 57– Amends definition of TES to ensure consistency
with Labour Relations Amendment Bill – Currently, EEA Bill reads:
‘…a person whose services have been procured for, or provided to, a client by a temporary employment service is
deemed to be the employee of that client, where that person’s employment with the client is of indefinite duration or for a period of six months or longer.’• Threshold under the LRA amendments remains unclear
however
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QUESTIONS
…Your thoughts?
…
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