Proposed amendments to the Employment Equity Act

2012-09-26 00:00

THE Employment Equity Act 55 of 1998 (EEA) was introduced to promote the constitutional right of equality while eliminating unfair discrimination in employment. It also set out requirements designed to bring about a diverse workforce that would be broadly representative of the South African population.

Changes

The proposed amendments to the EEA are designed to speed up these objectives. Some of the more telling changes proposed are to the current legislation that defines designated groups as black people, women and people with disabilities. One amendment would limit the definition to persons who are citizens of South Africa.

Another is that recruitment of black foreign nationals will not assist an employer to comply with affirmative action goals.

There is also an emphasis on applying the principle of equal pay for work of equal value. The proposed amendment would allow the Minister of Labour to publish a code of good practice to help parties deal with pay disputes. Lengthy service and skill affect this principle, and its implementation might lead to limited competitiveness in the workplace.

Affirmative action

The bill makes significant changes to the enforcement of affirmative action in an effort to speed up compliance. It proposes the following:

• Written undertakings by any employer are to be discretionary;

• Any written undertaking, if not complied with, can be made an order of court;

• Employers lose the right to appeal against compliance orders;

• An employer may raise any reasonable ground to justify why it has not complied.

The Director-General may apply to the Labour Court for an order directing an employer to comply with a request made during a review of an employer’s compliance or to impose a fine for not complying with a request or recommendation.

The bill extends its rights to workers employed by temporary employment services. Employees who are placed by a temporary employment service with a client for longer than six months will be deemed to be employees of the client and thus will have to be incorporated into any affirmative action plans.

Demographics

One of the most important features of the bill is that an employer must now take into account the demographic profile of the national and regional economically active population.

Employers will also be measured against other employers operating under comparable circumstances in implementing employment equity. Employers will also be expected to take reasonable steps to train suitably qualified people from the designated group.

The minister would have the power to issue a regulation specifying the circumstances under which an employer’s compliance should be determined in line with the demographic profile of either the national or regional economically active population.

*Michael Maeso is a partner, and head of the Employment & Pension Law department at Shepstone & Wylie Attorneys.

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