*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not prevented from acquiring citizenship as a result of Apartheid before then), do not benefit from AA• Consistent with repealed regulations (GNR 841 No.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?

…