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]
070610nb
GENERAL
EXPLANATORY NOTE
[ ] Words in bold type in square brackets indicate omissions
from existing enactments.
___________ Words underlined with a solid line indicate insertions in
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--
one or more
employers;
one or more
registered employers' organisations; or
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--
a person who employs
50 or more employees;
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;
a municipality, as
referred to in Chapter 7 of the Constitution;
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
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--
works for another
person or for the State and who receives, or is entitled to
receive, any remuneration; and
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:
The Unemployment
Insurance Act, 1966 (Act No. 30 of 1966);
the Guidance and
Placement Act, 1981 (Act No. 62 of 1981);
the Manpower Training
Act, 1981 (Act No. 56 of 1981);
the Occupational Health and Safety Act, 1993 (Act No. 85 of
1993);
the Compensation for
Occupational Injuries and Diseases Act, 1993 (Act No. 130 of
1993);
the Labour Relations
Act, 1995 (Act No. 66 of 1995);
the Basic Conditions
of Employment Act, 1997 (Act No. 75 of 1997);
any other Act, whose
administration has been assigned to the Minister.
"employment policy or
practice" includes, but is not limited to--
recruitment
procedures, advertising and selection criteria;
appointments and the
appointment process;
job classification
and grading;
remuneration,
employment benefits and terms and conditions of employment;
job assignments;
the working
environment and facilities;
training and
development;
performance
evaluation systems;
promotion;
transfer;
demotion;
disciplinary measures
other than dismissal; and
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-
the National Defence
Force;
the National
Intelligence Agency; and
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--
take affirmative action measures consistent with the purpose
of this Act; or
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--
has been scientifically shown to be valid and reliable;
can be applied fairly to employees; and
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--
a copy of the referral has been served on every other party
to the dispute; and
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--
any party to the dispute may refer it to the Labour Court
for adjudication; or
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--
the objectives to be achieved for each year of the plan;
the affirmative action measures to be implemented as
required by section 15 (2);
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;
the timetable for each year of the plan for the achievement
of goals and objectives other than numerical goals;
the duration of the plan, which may not be shorter than one
year or longer than five years;
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;
the internal procedures to resolve any dispute about the
interpretation or implementation of the plan;
the persons in the workforce, including senior managers,
responsible for monitoring and implementing the plan; and
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--
formal qualifications;
prior learning;
relevant experience; or
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--
review all the factors listed in subsection (3); and
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--
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
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--
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
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--
report as contemplated in this section for the duration of
its current employment equity plan; and
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 [twoyears] 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--
collective bargaining;
compliance with sectoral determinations made by the Minister
in terms of section 51 of the Basic Conditions of Employment
Act;
applying the norms and benchmarks set by the Employment
Conditions Commission;
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--
consult with employees as required by section 16;
conduct an analysis as required by section 19;
prepare an employment equity plan as required by section 20;
implement its employment equity plan;
submit an annual report as required by section 21;
publish its report as required by section 22;
prepare a successive employment equity plan as required by
section 23;
assign responsibility to one or more senior managers as
required by section 24;
inform its employees as required by section 25; or
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--
refused to give a written undertaking in terms of section
36, when requested to do so; or
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--
the name of the employer, and the workplaces to which the
order applies;
those provisions of Chapter III of this Act which the
employer has not complied with and details of the conduct
constituting non-compliance;
any written undertaking given by the employer in terms of
section 36 and any failure by the employer to comply with the
written undertaking;
any steps that the employer must take and the period within
which those steps must be taken;
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
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--
may confirm, vary or cancel all or any part of the order to
which the employer objected; and
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--
comply with that order within the time period stated in it;
or
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--
the appeal by the Labour Court; or
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:
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--
demographic profile of the national and regional
economically active population;
pool of suitably qualified people from designated groups
from which the employer may reasonably be expected to
promote or appoint employees;
economic and financial factors relevant to the sector in
which the employer operates;
present and anticipated economic and financial
circumstances of the employer; and
the number of present and planned vacancies that exist
in the various categories and levels, and the employer's
labour turnover;
progress made in implementing employment equity by other
designated employers operating under comparable circumstances
and within the same sector;
reasonable efforts made by a designated employer to
implement its employment equity plan;
the extent to which the designated employer has made
progress in eliminating employment barriers that adversely
affect people from designated groups; and
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
[effortsmade]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--
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;
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;
directing the CCMA to conduct an investigation to assist the
Court and to submit a report to the Court;
awarding compensation in any circumstances contemplated in
this Act;
awarding damages in any circumstances contemplated in this
Act;
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);
imposing a fine in accordance with Schedule 1 for a
contravention of certain provisions of this Act;
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;
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
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--
payment of compensation by the employer to that employee;
payment of damages by the employer to that employee;
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;
an order directing an employer, other than a designated
employer, to comply with Chapter III as if it were a designated
employer;
an order directing the removal of the employer's name from
the register referred to in section 41; or
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--
the provision of counselling;
the maintenance of confidentiality;
the period during which the authorisation for any testing
applies; and
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--
any matter that this Act requires or permits to be
prescribed; and
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--
withdraw a delegation or assignment made in terms of
subsection (1); and
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
Member
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