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REPUBLIC OF SOUTH AFRICA EMPLOYMENT EQUITY AMENDMENT BILL

REPUBLIC OF SOUTH AFRICA

EMPLOYMENT EQUITY AMENDMENT BILL

 

Note: This is the first draft Bill published on 17 December 2010 for public comment. Comments may be submitted before 11 February 2011, whereafter it will probably be reviewed by Nedlac before being submitted to Parliament.

 

For ease of reference the original section has been placed in a text box, with the proposed amendments located beneath.


 

--------------------------------

 

(As introduced in the National Assembly (proposed section 75); explanatory summary of Bill published in Government Gazette No.    of     ) (The English text is the official text of the Bill)

 

--------------------------------

 

(MINISTER OF LABOUR)

 

[B   — 2010]

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GENERAL EXPLANATORY NOTE

 

[                     ] Words in bold type in square brackets indicate omissions from existing enactments.

___________           Words underlined with a solid line indicate insertions in existing enactments.

_____________________________________________________________________________________________________________________

BILL

To amend the Employment Equity Act, 1998, so as to substitute or insert certain definitions; to prohibit a difference in the terms and conditions between employees from the same employer performing substantially the same work or work of equal value; to provide for the certification of psychometric testing used to assess employees; to provide for certain employees to refer unresolved disputes to the CCMA; and to empower the Director General to impose fines; and to provide for matters connected therewith.

 

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:—

 

Amendment of section 1 of Act 55 of 1998

 

1.   Definitions.--In this Act, unless the context otherwise indicates--

"Basic Conditions of Employment Act" means the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997);

"black people" is a generic term which means Africans, Coloureds and Indians;

"CCMA" means the Commission for Conciliation, Mediation and Arbitration, established by section 112 of the Labour Relations Act;

"code of good practice" means a document issued by the Minister in terms of section 54;

"collective agreement" means a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand--

  1. one or more employers;
  2. one or more registered employers' organisations; or
  3. one or more employers and one or more registered employers' organisations;

"Commission" means the Commission for Employment Equity, established by section 28;

"Constitution" means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

"designated employer" means--

  1. a person who employs 50 or more employees;
  2. a person who employs fewer than 50 employees but has a total annual turnover that is equal to or above the applicable annual turnover of a small business in terms of the Schedule 4 of this Act;
  3. a municipality, as referred to in Chapter 7 of the Constitution;
  4. an organ of state as defined in section 239 of the Constitution, but excluding local spheres of government, the National Defence Force, the National Intelligence Agency and the South African Secret Service; and
  5. an employer bound by collective agreement in terms of section 23 or 31 of the Labour Relations Act, which appoints it as a designated employer in terms of this Act, to the extent provided for in the agreement.

"designated groups" means black people, women and people with disabilities;

"Director-General" means the Director-General of the Department of Labour;

"dismissal" has the meaning assigned to it in section 186 of the Labour Relations Act;

"dispute" includes an alleged dispute;

"employee" means any person other than an independent contractor who--

  1. works for another person or for the State and who receives, or is entitled to receive, any remuneration; and
  2. in any manner assists in carrying on or conducting the business of an employer,

and "employed" and "employment" have corresponding meanings;

 

"employment law" means any provision of this Act or any of the following Acts:

  1. The Unemployment Insurance Act, 1966 (Act No. 30 of 1966);
  2. the Guidance and Placement Act, 1981 (Act No. 62 of 1981);
  3. the Manpower Training Act, 1981 (Act No. 56 of 1981);
  4. the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993);
  5. the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993);
  6. the Labour Relations Act, 1995 (Act No. 66 of 1995);
  7. the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997);
  8. any other Act, whose administration has been assigned to the Minister.

"employment policy or practice" includes, but is not limited to--

  1. recruitment procedures, advertising and selection criteria;
  2. appointments and the appointment process;
  3. job classification and grading;
  4. remuneration, employment benefits and terms and conditions of employment;
  5. job assignments;
  6. the working environment and facilities;
  7. training and development;
  8. performance evaluation systems;
  9. promotion;
  10. transfer;
  11. demotion;
  12. disciplinary measures other than dismissal; and
  13. dismissal.

"family responsibility" means the responsibility of employees in relation to their spouse or partner, their dependant children or other members of their immediate family who need their care or support;

"HIV" means the Human Immunodeficiency Virus;

"labour inspector" means a person appointed in terms of section 65 of the Basic Conditions of Employment Act;

"Labour Relations Act" means the Labour Relations Act, 1995 (Act No. 66 of 1995);

"medical testing" includes any test, question, inquiry or other means designed to ascertain, or which has the effect of enabling the employer to ascertain, whether an employee has any medical condition;

"Minister" means the Minister of Labour;

"NEDLAC" means the National Economic, Development and Labour Council established by section 2 of the National Economic, Development and Labour Council Act, 1994 (Act No. 35 of 1994);

"organ of state" means an organ of state as defined in section 239 of the Constitution;

"people with disabilities" means people who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment;

"pregnancy" includes intended pregnancy, termination of pregnancy and any medical circumstances related to pregnancy;

"prescribed" means prescribed by a regulation made under section 55;

"public service" means the public service referred to in section 1 (1) of the Public Service Act, 1994 (promulgated by Proclamation No. 103 of 1994),

and includes any organisational component contemplated in section 7 (4) of that Act and specified in the first column of Schedule 2 to that Act, but excluding-

  1. the National Defence Force;
  2. the National Intelligence Agency; and
  3. the South African Secret Service.

"reasonable accommodation" means any modification or adjustment to a job or to the working environment that will enable a person from a

designated group to have access to or participate or advance in employment;

"registered employers' organisation" means an employers' organisation as defined in section 213 of the Labour Relations Act and registered in terms of section 96 of that Act;

"registered trade union" means a trade union as defined in section 213 of the Labour Relations Act and registered in terms of section 96 of that Act;

"remuneration" means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State;

"representative trade union" means a registered trade union, or two or more registered trade unions acting jointly, that are sufficiently representative of the employees employed by an employer in a workplace;

"Republic" means the Republic of South Africa as defined in the Constitution;

"serve" or "submit", in relation to any communication, means either--

to send it in writing delivered by hand or registered post; or
to transmit it using any electronic mechanism as a result of which the recipient is capable of printing the communication;

"suitably qualified person" means a person contemplated in sections 20 (3) and (4);

"this Act" includes any regulations made under section 55, but excludes any footnote;

"trade union representative" means a member of a registered trade union who is elected to represent employees in a workplace;

"workplace forum" means a workplace forum established in terms of Chapter V of the Labour Relations Act.

 
  1.  Section 1 of the Employment Equity Act, 1998 (hereafter referred to as the principal Act), is hereby amended by—

 

(a)       the substitution in paragraph (d) of the definition of "designated employer" of the following paragraph:

"(d)      an organ of state as defined in section 239 of the Constitution,  but excluding [local spheres of government,] the National Defence Force, the National Intelligence Agency and the South African Secret Service; and";

(b)       the substitution for the definition of "designated groups" of the following definition:

" 'designated groups' means black people, women and people with disabilities who—

(a)       are citizens of the Republic of South Africa by birth or descent; or

(b)       became citizens of the Republic of South Africa by naturalisation—

(i)         before 27 April 1994; or

(ii)        after 26 April 1994  who would have been entitled to acquire citizenship by naturalisation prior to that date but were precluded by Apartheid policies based on race;";

 

(c)       the insertion after the definition of "HIV" of the following definition:

(" 'independent contractor' means a person who works for or supplies services to a client  or customer as part of the person's business, undertaking or professional practice;")

(d)       the substitution for the definition of "labour inspector" of the following definition:

"'labour inspector' means a person appointed in terms of section [65] 63 of the Basic Conditions of Employment Act;";

(e)       the substitution for the definition of "serve" of the following definition:

" 'serve' means to send by registered post, telegram, telex, telefax or to deliver by hand and:

(a)       in respect of the Labour Courts, any other method of service specified in the Rules of the Labour Courts;

(b)       in respect of the Commission, any other method of service specified in the Rules of the Commission;"; and

(f)         the insertion after the definition of "trade union representative" of the following definition:

" 'turnover' means the total annual turnover of an employer for the preceding year calculated in accordance with the provisions of the Competition Act, 1998 (Act No. 89 of 1998);".

 

Amendment of section 6 of Act 55 of 1998

 

6.   Prohibition of unfair discrimination.--(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, sex, 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)  It is not unfair discrimination to--

  1. take affirmative action measures consistent with the purpose of this Act; or
  2. distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.

(3)  Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1).

 

2.         Section 6 of the principal Act is hereby amended by the addition of the following subsections:

"(4)      A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value is a form of unfair discrimination and is prohibited  on any one, or more grounds of unfair discrimination listed in subsection (1).

(5)       The Minister may, after consultation with the Commission, issue a code of good practice setting out the criteria and the methodology for assessing work of equal value in terms of subsection (4).".

 

Amendment of section 8 of Act 55 of 1998

 

8.   Psychometric testing.--Psychometric testing and other similar assessments of an employee are prohibited unless the test or assessment being used--
  1. has been scientifically shown to be valid and reliable;
  2. can be applied fairly to employees; and
  3. is not biased against any employee or group.
 

3.         Section 8 of the principal Act is hereby amended by the deletionof the word "and" at the end of paragraph (b), the insertion of the word "and" at the end of paragraph (c) and the addition of the following paragraph:

"(d)      has been certified by the Health Professions Council of South Africa established in terms of the Health Professions Act, 1974 (Act No. 56 of 1974).".

 

Amendment of section 10 of Act 55 of 1998

 

10.   Disputes concerning this Chapter.--(1)  In this section, the word "dispute" excludes a dispute about an unfair dismissal, which must be referred to the appropriate body for conciliation and arbitration or adjudication in terms of Chapter VIII of the Labour Relations Act.

(2)  Any party to a dispute concerning this Chapter may refer the dispute in writing to the CCMA within six months after the act or omission that allegedly constitutes unfair discrimination.

(3)  The CCMA may at any time permit a party that shows good cause to refer a dispute after the relevant time limit set out in subsection (2).

(4)  The party that refers a dispute must satisfy the CCMA that--

  1. a copy of the referral has been served on every other party to the dispute; and
  2. the referring party has made a reasonable attempt to resolve the dispute.

(5)  The CCMA must attempt to resolve the dispute through conciliation.

(6)  If the dispute remains unresolved after conciliation--

  1. any party to the dispute may refer it to the Labour Court for adjudication; or
  2. all the parties to the dispute may consent to arbitration of the dispute.

(7)  The relevant provisions of Parts C and D of Chapter VII of the Labour Relations Act, with the changes required by context, apply in respect of a dispute in terms of this Chapter.

 

4.         Section 10 of the principal Act is hereby amended by the substitution in subsection (6) for paragraphs (a) and (b) of the following paragraphs:

(a)      any party to the dispute may refer [it] the dispute to the Labour Court for adjudication; or

(b)       an employee earning less than the amount prescribed by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act may refer the dispute to the CCMA for arbitration.”.

 

Substitution of section 11 of Act 55 of 1998

 

11.   Burden of proof.--Whenever unfair discrimination2 is alleged in terms of this Act, the employer against whom the allegation is made must establish that it is fair.
 

5.         The following section is hereby substituted for section 11 of the principal Act:

 

11.  "Burden of proof

(1)       If the employee makes out a prima facie case of unfair discrimination, the respondent must prove that—

(a)       the discrimination did not take place as alleged; or

(b)       the conduct is not based on one or more of the prohibited grounds listed in section 6(1).

 

(2)       Discrimination is unfair, unless the respondent proves that the discrimination is fair, if the discrimination did take place—

(a)       on a prohibited ground listed in section 6(1);

(b)       on a ground not listed in section 6(1), and the discrimination—

(i)         causes or perpetuates systematic disadvantage in the workplace;

(ii)        undermines human dignity; or

(iii)         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 section 6(1).

(3)       For the purposes of this section, a respondent includes an employer of the employee or any other person contemplated in section 6(1).".

 

Amendment of section 20 of Act 55 of 1998

 

20.   Employment equity plan.--(1)  A designated employer must prepare and implement an employment equity plan which will achieve reasonable progress towards employment equity in that employer's workforce.

(2)  An employment equity plan prepared in terms of subsection (1) must state--

  1. the objectives to be achieved for each year of the plan;
  2. the affirmative action measures to be implemented as required by section 15 (2);
  3. where underrepresentation of people from designated groups has been identified by the analysis, the numerical goals4 to achieve the equitable representation of suitably qualified people from designated groups within each occupational category and level in the workforce, the timetable within which this is to be achieved, and the strategies intended to achieve those goals;
  4. the timetable for each year of the plan for the achievement of goals and objectives other than numerical goals;
  5. the duration of the plan, which may not be shorter than one year or longer than five years;
  6. the procedures that will be used to monitor and evaluate the implementation of the plan and whether reasonable progress is being made towards implementing employment equity;
  7. the internal procedures to resolve any dispute about the interpretation or implementation of the plan;
  8. the persons in the workforce, including senior managers, responsible for monitoring and implementing the plan; and
  9. any other prescribed matter.

(3)  For purposes of this Act, a person may be suitably qualified for a job as a result of any one of, or any combination of that person's--

  1. formal qualifications;
  2. prior learning;
  3. relevant experience; or
  4. capacity to acquire, within a reasonable time, the ability to do the job.

(4)  When determining whether a person is suitably qualified for a job, an employer must--

  1. review all the factors listed in subsection (3); and
  2. determine whether that person has the ability to do the job in terms of any one of, or any combination of those factors.

(5)  In making a determination under subsection (4), an employer may not unfairly discriminate against a person solely on the grounds of that person's lack of relevant experience.

(6)  An employment equity plan may contain any other measures that are consistent with the purposes of this Act.

 

6.         Section 20 of the principal Act is hereby amended by the addition of the following subsection:

"(7)      The Director-General may apply to the Labour Court to impose a fine contemplated in Schedule 1 of the Act, if a designated employer fails to prepare and implement an employment equity plan in accordance with the provisions of this Act.".

 

Amendment of section 21 of Act 55 of 1998

 

21.   Report 5.--(1)  A designated employer that employs fewer than 150 employees must--
  1. submit its first report to the Director-General within 12 months after the commencement of this Act or, if later, within 12 months after the date on which that employer became a designated employer; and
  2. thereafter, submit a report to the Director-General once every two years, on the first working day of October.

(2)  A designated employer that employs 150 or more employees must--

  1. submit its first report to the Director-General within six months after the commencement of this Act or, if later, within six months after the date on which that employer became a designated employer; and
  2. thereafter, submit a report to the Director-General once every year on the first working day of October.

(3)  Despite subsections (1) and (2), a designated employer that submits its first report in the 12-month period preceding the first working day of October, should only submit its second report on the first working day of October in the following year.

(4)  The reports referred to in subsections (1) and (2) must contain the prescribed information and must be signed by the chief executive officer of the designated employer.

(5)  An employer who becomes a designated employer in terms of the Act must--

  1. report as contemplated in this section for the duration of its current employment equity plan; and
  2. notify the Director-General in writing if it is unable to report as contemplated in this section, and give reasons therefor.

(6)  Every report prepared in terms of this section is a public document.

 

7.         Section 21 of the principal Act is hereby amended by—

(a)       the substitution for subsection (1) of the following subsection:

"(1)      A designated employer [that employs fewer than 150 employees] must—

(a)       submit its first report to the Director-General within [12 months after the commencement of this Act or, if later, within] 12 months after the date on which that employer became a designated employer; and

(b)       thereafter, submit a report to the Director-General once every [two years] year, on the first working day of October.";

(b)       the deletion of subsection (2);

(c)        the substitution for subsections (3) and (4) of the following subsections:

"(3)      Despite [subsections (1) and (2)] subsection (1) , a designated employer that submits its first report in the 12-month period preceding the first working day of October, should only submit its second report on the first working day of October in the following year.

(4)       The reports referred to in [subsections (1) and (2)] subsection (1) must contain the prescribed information and must be signed by the chief executive officer of the designated employer."; and

(d)       the insertion after subsection (5) of the following subsections:

"(5A)   An employer that is not able to submit a report to the Director-General by the first working day of October in terms of subsection (1)(b) must notify the Director-General in writing before the last working day of August in the same year giving reasons for its inability to do so.

(5B)     The Director-General may apply to the Labour Court to impose a fine contemplated in Schedule 1 of the Act, if an employer who fails to report in terms of subsection (1)(b)

(a)       did not submit valid reasons in terms of subsection (5) for not reporting; or

(b)       the reasons submitted in terms of subsection (5) are found to be false or invalid.".

 

Amendment of section 27 of Act 55 of 1998

 

27.   Income differentials.--(1)  Every designated employer, when reporting in terms of section 21 (1) and (2), must submit a statement, as prescribed, to the Employment Conditions of Commission established by section 59 of the Basic Conditions of Employment Act, on the remuneration and benefits received in each occupational category and level of that employer's workforce.

(2)  Where disproportionate income differentials are reflected in the statement contemplated in subsection (1), a designated employer must take measures to progressively reduce such differentials subject to guidance as may be given by the Minister as contemplated in subsection (4).

(3)  The measures referred to in subsection (2) may include--

  1. collective bargaining;
  2. compliance with sectoral determinations made by the Minister in terms of section 51 of the Basic Conditions of Employment Act;
  3. applying the norms and benchmarks set by the Employment Conditions Commission;
  4. relevant measures contained in skills development legislation;

(4)  The Employment Conditions Commission must research and investigate norms and benchmarks for proportionate income differentials and advise the Minister on appropriate measures for reducing disproportional differentials.

(5)  The Employment Conditions Commission may not disclose any information pertaining to individual employees or employers.

(6)  Parties to a collective bargaining process may request the information contained in the statement contemplated in subsection (1) for the collective bargaining purposes subject to section 16 (4) and (5) of the Labour Relations Act.

 

8.         Section 27 of the principal Act is hereby amended by—

(a)       the substitution for the heading of the following heading:

"Income differentials and discrimination"; and

(b)       the substitution for subsections (1) and (2) of the following subsections:

"(1)      Every designated employer, when reporting in terms of section 21(1) and (2), must submit a statement, as prescribed, to the Employment Conditions Commission established by section 59 of the Basic Conditions of Employment Act, on the remuneration and benefits received in each occupational [category and] level of that employer's workforce.

(2)       Where disproportionate income differentials or unfair discrimination in terms and conditions of employment as contemplated by section 6(4) are reflected in the statement contemplated in subsection (1), a designated employer must take measures to progressively reduce such differentials subject to guidance as may be given by the Minister as contemplated in subsection (4).".

 

Repeal of section 36 of Act 55 of 1998

 

36.   Undertaking to comply.--A labour inspector must request and obtain a written undertaking from a designated employer to comply with paragraphs (a) to ( j) within a specified period, if the inspector has reasonable grounds to believe that the employer has failed to--
  1. consult with employees as required by section 16;
  2. conduct an analysis as required by section 19;
  3. prepare an employment equity plan as required by section 20;
  4. implement its employment equity plan;
  5. submit an annual report as required by section 21;
  6. publish its report as required by section 22;
  7. prepare a successive employment equity plan as required by section 23;
  8. assign responsibility to one or more senior managers as required by section 24;
  9. inform its employees as required by section 25; or
  10. keep records as required by section 26.
 

 9.         Section 36 of the principal Act is hereby repealed.

 

Amendment of section 37 of Act 55 of 1998

 

37.   Compliance order.--(1)  A labour inspector may issue a compliance order to a designated employer if that employer has--
  1. refused to give a written undertaking in terms of section 36, when requested to do so; or
  2. failed to comply with a written undertaking given in terms of section 36.

(2)  A compliance order issued in terms of subsection (1) must set out--

  1. the name of the employer, and the workplaces to which the order applies;
  2. those provisions of Chapter III of this Act which the employer has not complied with and details of the conduct constituting non-compliance;
  3. any written undertaking given by the employer in terms of section 36 and any failure by the employer to comply with the written undertaking;
  4. any steps that the employer must take and the period within which those steps must be taken;
  5. the maximum fine, if any, that may be imposed on the employer in terms of Schedule 1 for failing to comply with the order; and
  6. any other prescribed information.

(3)  A labour inspector who issues a compliance order must serve a copy of that order on the employer named in it.

(4)  A designated employer who receives a compliance order served in terms of subsection (3) must display a copy of that order prominently at a place accessible to the affected employees at each workplace named in it.

(5)  A designated employer must comply with the compliance order within the time period stated in it, unless the employer objects to that order in terms of section 39.

(6)  If a designated employer does not comply with an order within the period stated in it, or does not object to that order in terms of section 39, the Director-General may apply to the Labour Court to make the compliance order an order of the Labour Court.

 

10.       Section 37 of the principal Act is hereby amended by—

(a)       the substitution of subsection (1) of the following subsection:

"(1)      A labour inspector may issue a compliance order to a designated employer if that employer has failed or refused to

[(a)      refused to give a written undertaking in terms of section 36, when requested to do so; or

(b)       failed to comply with a written undertaking given in terms of section 36]

(a)       consult with employees as required by section 16;

(b)       conduct an analysis as required by section 19;

(c)        publish a summary of its report as required by section 22;

(d)       assign responsibility to one or more senior managers as required by section 24;

(e)       inform its employees of the provisions of this Act as required by section 25; or

(f)         maintain records as required by section 26;

(g)       prepare and implement an employment equity plan in accordance with section 20.";

(b)       the deletion in subsection (2) of paragraph (c);

(c)        the substitution of subsection (4) of the following subsection:          

"(4)      A designated employer who receives a compliance order served in terms of subsection (3) must

(a)       display a copy of that order prominently at a place accessible to the affected employees at each workplace named in it;

(b)       comply with the compliance order within the time period stated in it ; and

(c)        inform the inspector in the prescribed form within 30 days of the expiry of the time period of either its compliance with the order or, if it has not complied, the reasons for not doing so.";

(d)       the deletion of subsection (5); and

(e)       the substitution of subsection (6) of the following subsection:

"(6)      If a designated employer does not comply with an order within the period stated in it, [or does not object to that order in terms of section 39,] the Director-General may

(a)       amend the order and serve it to the employer; or

(b)       apply to the Labour Court to make the compliance order or any part of such order an order of the Labour Court.".

 

Repeal of sections 39 and 40 of Act 55 of 1998

 

39.   Objections against compliance order.--(1)  A designated employer may object to a compliance order by making written representations to the Director-General within 21 days after receiving that order.

(2)  If the employer shows good cause at any time, the Director-General may permit the employer to object after the period of 21 days has expired.

(3)  After considering the designated employer's representations and any other relevant information, the Director-General--

  1. may confirm, vary or cancel all or any part of the order to which the employer objected; and
  2. must specify the time period within which that employer must comply with any part of the order that is confirmed or varied.

(4)  The Director-General must, after making a decision in terms of subsection (3), and within 60 days after receiving the employer's representations, serve a copy of that decision on that employer.

(5)  A designated employer who receives an order of the Director-General must either--

  1. comply with that order within the time period stated in it; or
  2. appeal against that order to the Labour Court in terms of section 40.

(6)  If a designated employer does not comply with an order of the Director-General, or does not appeal against that order, the Director-General may apply to the Labour Court for that order to be made an order of the Labour Court.

40.   Appeal from compliance order.--(1)  A designated employer may appeal to the Labour Court against a compliance order of the Director-General within 21 days after receiving that order.

(2)  The Labour Court may at any time permit the employer to appeal after the 21-day time limit has expired, if that employer shows good cause for failing to appeal within that time limit.

(3)  If the designated employer has appealed against an order of the Director-General, that order is suspended until the final determination of--

  1. the appeal by the Labour Court; or
  2. any appeal against the decision of the Labour Court in that matter.
 
 

11.       Sections 39 and 40 of the principal Act are hereby repealed.

 

Substitution of section 42 of Act 55 of 1998

 

42.   Assessment of compliance.--In determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General or any person or body applying this Act must, in addition to the factors stated in section 15, take into account all of the following:
  1. The extent to which suitably qualified people from and amongst the different designated groups are equitably represented within each occupational category and level in that employer's workforce in relation to the--
    1. demographic profile of the national and regional economically active population;
    2. pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees;
    3. economic and financial factors relevant to the sector in which the employer operates;
    4. present and anticipated economic and financial circumstances of the employer; and
    5. the number of present and planned vacancies that exist in the various categories and levels, and the employer's labour turnover;
  2. progress made in implementing employment equity by other designated employers operating under comparable circumstances and within the same sector;
  3. reasonable efforts made by a designated employer to implement its employment equity plan;
  4. the extent to which the designated employer has made progress in eliminating employment barriers that adversely affect people from designated groups; and
  5. any other prescribed factor.
 

12.       The following section is hereby substituted for section 42 of the principal Act:

42.  "Assessment of compliance

In determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General or any person or body applying this Act [must] may, in addition to the factors stated in section 15, take [into account all of] the following into account

(a)       The extent to which suitably qualified people from and amongst the different designated groups are equitably represented within each occupational [category and] level in that employer's workforce in relation to the[—

(i)]       demographic profile of the [national and regional] economically active population;

[(ii)      pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees;

(iii)       economic and financial factors relevant to the sector in which the employer operates;

(iv)      present and anticipated economic and financial circumstances of the employer;] and

(v)       the number of present and planned vacancies that exist in the various [categories and] occupational levels, and the employer's labour turnover;

[(b)      progress made in implementing employment equity by other designated employers operating under comparable circumstances and within the same sector;]

(b)       reasonable steps taken by an employer to train suitably qualified people from the designated groups;

(c)       reasonable [efforts made] steps taken by a designated employer to implement its employment equity plan;

(d)      the extent to which the designated employer has made progress in eliminating employment barriers that adversely affect people from designated groups; and

(e)       [any other prescribed factor] reasonable steps taken by an employer to appoint and promote suitably qualified people from the designated groups.".

 

Substitution of section 45 of Act 55 of 1998

 

45.   Failure to comply with Director-General's recommendation.--If an employer fails to comply with a request made by the Director-General in terms of section 43 (2) or a recommendation made by the Director-General in terms of section 44 (b), the Director-General may refer the employer's non-compliance to the Labour Court.
 

13.       The following section is hereby substituted for section 45 of the principal Act:

45.  "Failure to comply with Director-General's recommendation or request  

(1)       If an employer fails to comply with a request made by the Director-General in terms of section 43 (2) or a recommendation made by the Director-General in terms of section 44 (b), the Director-General may [refer the employer's non-compliance] apply to the Labour Court

(a)       for an order directing the employer to comply with the request or recommendation;

(b)       if the employer fails to justify the failure to comply with the request or recommendation, to impose a fine in terms of Schedule 1 on the employer.

(2)       Any challenge to the validity of the Director General's request or recommendation may only be made in the proceedings contemplated in sub-section (1).".

 

Amendment of section 50of Act 55 of 1998

 

50.   Powers of Labour Court.--(1)  Except where this Act provides otherwise, the Labour Court may make any appropriate order including--
  1. on application by the Director-General in terms of section 37 (6) or 39 (6) making a compliance order an order of the Labour Court;
  2. subject to the provisions of this Act, condoning the late filing of any document with, or the late referral of any dispute to, the Labour Court;
  3. directing the CCMA to conduct an investigation to assist the Court and to submit a report to the Court;
  4. awarding compensation in any circumstances contemplated in this Act;
  5. awarding damages in any circumstances contemplated in this Act;
  6. ordering compliance with any provision of this Act; including a request made by the Director-General in terms of section 43 (2) or a recommendation made by the Director-General in terms of section 44 (b);
  7. imposing a fine in accordance with Schedule 1 for a contravention of certain provisions of this Act;
  8. reviewing the performance or purported performance of any function provided for in this Act or any act or omission of any person or body in terms of this Act on any grounds that are permissible in law;
  9. in an appeal under section 40, confirming, varying or setting aside all or part of an order made by the Director-General in terms of section 39; and
  10. dealing with any matter necessary or incidental to performing its functions in terms of this Act.

(2)  If the Labour Court decides that an employee has unfairly discriminated against, the Court may make any appropriate order that is just and equitable in the circumstances, including--

  1. payment of compensation by the employer to that employee;
  2. payment of damages by the employer to that employee;
  3. an order directing the employer to take steps to prevent the same unfair discrimination or a similar practice occurring in the future in respect of other employees;
  4. an order directing an employer, other than a designated employer, to comply with Chapter III as if it were a designated employer;
  5. an order directing the removal of the employer's name from the register referred to in section 41; or
  6. the publication of the Court's order.

(3)  The Labour Court, in making any order, may take into account any delay on the part of the party who seeks relief in processing a dispute in terms of this Act.

(4)  If the Labour Court declares that the medical testing of an employee as contemplated in section 7 is justifiable, the court may make any order that it considers appropriate in the circumstances, including imposing conditions relating to--

  1. the provision of counselling;
  2. the maintenance of confidentiality;
  3. the period during which the authorisation for any testing applies; and
  4. the category or categories of jobs or employees in respect of which the authorisation for testing applies.
 

14.       Section 50 of the principal Act is hereby amended by the substitution in subsection (1) for paragraph (h) of the following paragraph:

"(h)      reviewing [the performance or purported performance of any function provided for in this Act or any act or omission of any person or body] an administrative action in terms of this Act [on any grounds that are permissible in law];".

 

Amendment of section 55 of Act 55 of 1998

 

55.   Regulations.--(1)  The Minister may, by notice in the Gazette and on the advice of the Commission, make any regulation regarding--
  1. any matter that this Act requires or permits to be prescribed; and
  2. any administrative or procedural matters that may be necessary or expedient to achieve the proper and effective administration of this Act.
 

15.       Section 55 of the principal Act is hereby amended by the substitution of subsection (2) of the following subsection:

"(2)      The Minister [must] may, by notice in the Gazette make [a regulation] regulations providing for separate and simplified forms and procedures when making regulations in respect of the obligations created by sections 19, 20, 21, 25 and 26 for employers that employ 150 or fewer employees.".

 

Amendment of section 56 of Act 55 of 1998

 

56.   Delegations.--(1)  The Minister may delegate any power conferred, or assign any duty imposed, upon the Minister in terms of this Act, except the powers and duties contemplated in sections 29 (1), (5) and (7), 53 (2), 54, 55, 59 (4) and 61 (4).

(2)  A delegation or assignment must be in writing and may be subject to any conditions or restrictions determined by the Minister.

(3)  The Minister may at any time--

  1. withdraw a delegation or assignment made in terms of subsection (1); and
  2. withdraw or amend any decision made by a person exercising a power or performing a duty delegated or assigned in terms of subsection (1).

(4)  The Director-General may delegate any power conferred, or assign any duty imposed, upon the Director-General in terms of this Act, to any employee in the Department.

(5)  Subsections (2) and (3) apply with the changes required by the context to any delegation or assignment by the Director-General under subsection (4).

 

16.       Section 56 of the principal Act is hereby amended by the substitution of subsection (1) of the following subsection:

"(1)      The Minister may delegate any power conferred, or assign any duty imposed, upon the Minister in terms of this Act[, except the powers and duties contemplated in sections 29(1), (5) and (7), 53(2), 54, 55, 59(4) and 61(4)].".

 

Repeal of section 57 of Act 55 of 1998

 

57.   Temporary employment services.--(1)  For purposes of Chapter III of this Act, 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 three months or longer.
 

17.       Section 57 of the principal Act is hereby repealed.

 

Substitution of Schedule 1 of Act 55 of 1998

 

Schedule 1

MAXIMUM PERMISSIBLE FINES THAT MAY BE IMPOSED FOR CONTRAVENING THIS ACT

This Schedule sets out the maximum fine that may be imposed in terms of this Act for the contravention of certain provisions of this Act.

Previous Contravention Contravention of any Provision of
Sections 16, 19, 20, 21, 22 and 23
No previous contravention R500 000
A previous contravention in respect of the same provision R600 000
A previous contravention within the previous 12 months or two previous contraventions in respect of the same provision within three years R700 000
Three previous contraventions in respect of the same provision within three years R800 000
Four previous contraventions in respect of the same provision within three years R900 000

 

18.   The following Schedule is hereby substituted for Schedule 1 of the     Principal Act:

 

Previous Contravention

Contravention of any Provision of Sections 16, 19, 20, 21, 22, 23 and 27

No previous  contravention

2% of turnover

A previous contravention in respect of the same provision

4% of turnover

A previous contravention within the previous 12 months or two previous contraventions in respect of the sane provision within three years

6% of turnover

Three previous contraventions in respect of the same provision within three years

8% of turnover

Four previous contraventions in respect of the same provisions within three years

10% of turnover

 

Substitution of Schedule 4 of Act 55 of 1998

 

Schedule 4

TURNOVER THRESHOLD APPLICABLE TO DESIGNATED EMPLOYERS

Sector or subsectors in accordance with the Standard Industrial Classification Total annual turnover
Agriculture
Mining and Quarrying
Manufacturing
Electricity, Gas and Water
Construction
Retail and Motor Trade and Repair Services
Wholesale Trade, Commercial Agents and Allied Services
Catering, Accommodation and other Trade
Transport, Storage and Communications
Finance and Business Services
Community, Special and Personal Services
R2,00 m
R7,50 m
R10,00 m
R10,00 m
R5,00 m
R15,00 m
R25,00 m
R5,00 m
R10,00 m
R10,00 m
R5,00 m
 
 

19.       The following Schedule is hereby substituted for Schedule 4 of the principal Act:-

"Schedule 4

Turnover threshold applicable to designated employers

Sector or subsectors in accordance with the Standard Industrial Classification

Total annual turnover

Agriculture

[R2,00m]R5,00m

Mining and Quarring

R7,50m

Manufacturing

R10,00m

Electricity, Gas and Water

R10,00m

Construction

R5,00m

Retail and Motor Trade and Repair Services

R15,00m

Wholesale Trade, Commercial Agents and Allied Services

R25,00m

Catering, Accommodation and other Trade

R5,00m

Transport, Storage and Communications

R10,00m

Finance and Business Services

R10,00m

Community, Social and Personal Services

R5,00m

 


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Gary Watkins

Gary Watkins

Managing Director

BA LLB

C: +27 (0)82 416 7712

T: +27 (0)10 035 4185 (Office)

F: +27 (0)86 689 7862

Website: www.workinfo.com
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