Lecture 1 and 2

When elephant retire- EE These notes are insufficient for study purposes.

Bill of Rights, Chapter II of the Constitution Dramatic changes effected over the last few years Constitutional equity as per section 9 of the Constitution need to be kept in mind when studying this section of the work Study section 9 of the Constitution- see the handbook. Two prime rights: Right to equality. Right not to be discriminated against. These notes are insufficient for study purposes.

Do not get confused: Section 9 of the Constitution guarantees: Equality before the law– applicable to all EE en ER’s and job seekers. Affirmative action provisions – applicable only to certain employers and apply to certain categories of people. Know the exceptions and to whom these two sections and the EE Act apply and who not. These notes are insufficient for study purposes.

Constitution of South Africa, s9: Equality (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. Historically discrimination occurred and measures are required to address the inequalities of the past. Equal opportunities in the workplace must be ensured. Is Affirmative Action “reverse discrimination”? Affirmative Action = positive action to overcome institutionalized discrimination. These notes are insufficient for study purposes.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one ore more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. Discrimination = treating people differently. Fair discrimination?? YES think of job applications and vacancies. Unfair discrimination = treating people differently on an arbitrary ground/inappropriate criteria to differentiate between persons. Direct discrimination: Discrimination on grounds listed but not limited thereto. When persons belong to a certain category. Indirect discrimination: Neutral criteria is used to differentiate or exclude. These notes are insufficient for study purposes.

Anti discrimination clause 4 possible meanings attached thereto: 1. Neutral meaning 2. Reverse Discrimination 3. Pejorative meaning of unfair difference in the legal, social or economic treatment of persons ( pregnant women- 4 months maternity leave- gender?) 4. Careful observation of distinctions, having good judgement (positive meaning- deciding on an appropriate sanction for misconduct) 5. DIFFERENTIATION IS NOT DISCRIMINATION!! 6. Unfairness is prohibited, not the distinction drawn! These notes are insufficient for study purposes.

Requirement for discrimination: Differentiation between listed and unlisted grounds: Be careful. Differentiation must be proven. * the applicant must prove that* and after that had been proven: Differentiation was fair/unfair – has to be proven by Burden of proof: Discrimination on listed grounds: Presumption that the discrimination is unfair. Respondent must show it is not unfair.(employer must prove that discrimination is fair) Discrimination on unlisted grounds: Applicants must prove there was discrimination and that it was unfair. These notes are insufficient for study purposes.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. ILO defines discrimination as: “… any distinction, exclusion or preference… which has the effect of nullifying or impairing equality of opportunity or treatment in employment and occupation… and any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.” General definition of unfair discrimination: “…use of irrelevant criteria to distinguish between individuals or groups, which has the purpose/effect of less favourable consequences for members of a group in relation to those of another.” Two (2) forms of discrimination are not considered unfair and consequently allowed; Affirmative action. Differentiation based on inherent requirements of a job. These notes are insufficient for study purposes.

Objectives of the Employment Equity Act To achieve equality through promotion of equal opportunities and fair employment practices. Elimination of unfair discrimination through affirmative action measures. To ensure equitable representation in all occupational categories and levels. Designated employers must take measures to reduce disproportionate differentials. These notes are insufficient for study purposes.

Employment Equity Act applies to all employees and employers with the exclusion of: NDF NIA SA Secret Service SA National Academy of Intelligence Staff and directors of COMSEC. (COMSEC (formally Electronic Communications Security (Pty) Ltd) is a company owned by the Government of South Africa through its National Intelligence Agency. COMSEC’s main task is to secure South African government communications against any unauthorized access and also from technical, electronic or any other related threats. The company also provides verification services for electronic communications security systems, products and services used by the South African government.) Government of South AfricaNational Intelligence Agency communications (Discrimination matters are dealt with by the Constitutional Court or a complaint lodges with the Human Rights Commission) These notes are insufficient for study purposes.

EEA, Chapter II: Prohibits discrimination. Employers must take steps to promote equality and eliminate unfair discrimination. Applies to all employers and employees and job applicants These notes are insufficient for study purposes.

Provisions of Chapter II: Requires an employer to take steps to promote equal opportunities by eliminating unfair discrimination in employment policies and practices. Employer must address unfair discrimination in relation to wage differentials by way of collective bargaining / BCEA measures. Medical testing of employees are prohibited unless permitted by legislation. HIV testing is prohibited unless permitted by the LC. Psychometric testing is prohibited unless the test being used has been scientifically validated as one that provides reliable results and is appropriate for the intended purpose. The test must be applied fairly to all employees irrespective of their culture to exclude bias to people from designated groups. These notes are insufficient for study purposes.

EEA, Chapter III: Refers to designated employers only and applies to persons from designated groups only. Designated employer: >50 employees. <50 employees but exceed the prescribed annual turnover of a small business as stipulated in the Act. Municipality. Organ of State, excluding local government spheres, NDF, NIA, SASS. Employer becomes a designated employer in terms of a collective agreement. Employer excluded may become subject to the provisions: By notification to the Director General. Order of the Labour Court. These notes are insufficient for study purposes.

Designated employees – with no preferential ranking specified; Black people (Africans, Colourdes and Indians). Women. People with disabilities. These notes are insufficient for study purposes.

Disputes about Unfair discrimination: Written referral to CCMA (not Bargaining Council) within 6 months. Conciliation. Agreed Arbitration / Labour Court. These notes are insufficient for study purposes.

ADDITIONAL NOTES Do the Activities as per the study guide and complete the vocabulary lists. Do not forget to study section 9 of the Constitution Study paragraphs 4.2.2, , 4.8 Read par 4.1,4.3,4.7.4, Study the relevant court cases as per your bundle. Outcomes: Discuss the consequences and legal consequences of section 9(1) Discuss the provisions of affirmative action Discuss the provisions re anti-discrimination What is the purpose/aim of affirmative action? Harksen v Lane :How do you establish if unfair discrimination occurred? These notes are insufficient for study purposes.

Prohibits discrimination/unfair discrimination? Employers must take steps to promote equality and eliminate unfair discrimination. Direct and indirect discrimination are prohibited. Examples of each? These notes are insufficient for study purposes. EEA, Chapter II:

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one ore more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. Discrimination = treating people differently. Fair discrimination?? YES think of job applications and vacancies. Unfair discrimination = treating people differently on an arbitrary ground/inappropriate criteria to differentiate between persons. Direct discrimination: Discrimination on grounds listed but not limited thereto. When persons belong to a certain category. Indirect discrimination: Neutral criteria is used to differentiate or exclude. These notes are insufficient for study purposes.

Study definitions on designated groups and designated employers Outcomes; What are the principal objectives of the EEA? How are these objectives achieved? How are they applied? Define designated employers and designated groups Who are excluded form Chapter III? Study par 4.5.1,4.5.2,4.5.3,4.6 Study