*Dr Emma Fergus Institute for Development and Labour Law, University of Cape Town

EMPLOYMENT EQUITY AMENDMENT BILL, 2012 An adequate response to the deficiencies of the current EEA? 2

OBJECTS OF THE EEA BILL *4 Formal themes: Giving effect to & regulating the Constitutional right to equality Giving effect to RSA’s obligations as a member state of the ILO Enhancing the efficiency of labour institutions Rectifying anomalies & clarifying uncertainties arising from current EEA *Explanatory Memorandum to the EE Bill 3

OBJECTS OF THE EEA BILL *Further apparent (sub)themes: Streamlining & refining text of current EEA – ‘Categories’ removed from phrase ‘categories and levels’ throughout EEA Enhancing consistency between EEA, LRA (& proposed amendments), PEPUDA & case law – TES provisions – Burden of proof – Listed & arbitrary grounds provided for in definition of unfair discrimination 4

OBJECTS OF THE EEA BILL Enhancing enforcement / compliance mechanisms – All designated employers to report annually on implementation of EE plans – Minister’s mandate, to provide for simplified forms & procedures for designated employers with fewer than 150 employees, replaced with a discretion – Max fines payable for noncompliance increased (x 3-4) – Annual turnover threshold increased (x 3) 5

Giving effect to the Constitutional right to equality *A few examples… Section 1: – Definition of ‘designated group’ amended to ensure that foreigners who became citizens of SA after 27 April 1994 (& who were not prevented from acquiring citizenship as a result of Apartheid before then), do not benefit from AA Consistent with repealed regulations (GNR 841 No of 18 August 2006) 6

Giving effect to RSA’s obligations as member of the ILO Section 6(4): – Introduced to clarify that differences in Ts & Cs of employment between employees (of the same employer) performing the same / substantially similar work / work of equal value, if linked to a listed or arbitrary ground, is unfair discrimination 7

Enhancing efficiencies of labour market institutions Section 10: – Amended to allow parties to refer disputes ito EEA to CCMA IF: Sexual harassment OR Employee/applicant earns less than annual salary threshold OR Consent of both parties – AND Parties may appeal to Labour Court against commissioner’s award Potential to undermine purpose and nature of CCMA? 8

Enhancing efficiencies of labour market institutions BUT… Section 48: – Amended to limit CCMA awards to annual salary threshold So proceed with caution! Section 53 – Minister may publish code of good practice to be taken into account when assessing EEA compliance for the purposes of state contracts Potentially useful 9

Enhancing efficiencies of labour market institutions *Sections 21(6): Introduced to allow D-G to apply directly to LC to impose fines for failure to file annual reports without submitting reasons for failure / without good cause *Similarly, section 20(7): Introduced to allow D-G to apply directly to LC to impose fines for failure to prepare / implement EE plans 10

Enhancing efficiencies of labour market institutions *Sections 36, 37, 39, 40, 42 & 45 Eliminate mandatory steps to be taken / criteria to be considered when assessing EEA compliance *EG: Revision & reduction of factors for consideration when assessing whether employer has implemented EE plan in compliance with EEA – Opportunity for employers to justify non-compliance (‘on reasonable grounds’) Removes provision for employers to object to / appeal against compliance orders 11

Rectifying anomalies & clarifying uncertainties with current EEA *Section 6(1) – Amended to clarify that discrimination = prohibited not only on listed grounds but also on arbitrary grounds 12

Rectifying anomalies & clarifying uncertainties with current EEA *Section 11 Burden of proof in unfair discrimination disputes amended as follows: ‘(1) If unfair discrimination is alleged on a ground listed in section 6(1), the employer against whom the allegation is made must prove, on a balance of probabilities, that: a) such discrimination did not take place as alleged; or b) such discrimination is rational and not unfair or is not otherwise justifiable. (2) If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that: a) the conduct complained of is not rational; b) the conduct complained about amounts to discrimination; and c) the discrimination is unfair.’ 13

Rectifying anomalies & clarifying uncertainties with current EEA *Section 11 Purpose (according to the Explanatory Memorandum) is to bring EEA in line with PEPUDA but… a) significant differences remain b) amended section 11 = arguably inconsistent with ILO Convention 111 of 1958 c) amended section = likely to cause confusion, rather than clarification 14

Rectifying anomalies & clarifying uncertainties with current EEA *Section 57 – Amends definition of TES to ensure consistency with Labour Relations Amendment Bill – Currently, EEA Bill reads: ‘…a person whose services have been procured for, or provided to, a client by a temporary employment service is deemed to be the employee of that client, where that person’s employment with the client is of indefinite duration or for a period of six months or longer.’ Threshold under the LRA amendments remains unclear however 15

QUESTIONS … Your thoughts? …