Lecture 4

OUTCOMES What must the equity plan include?. What must affirmative action measures include? Which factors are taken into account in determining whether a person is suitably qualified for a specific job? Name and discuss the duties of designated employers in terms of sect 13 of the Act? Class notes are insufficient to study from

Affirmative Action Chapter III only applies to “designated employers” and “designated employees”. Non-designated employers may notify the Director-General of Labour that it intends to comply with Chapter III as if it were a designated employer. Employers who intentionally try not to qualify as a “designated employer” commits an offence in terms of the act and can be fined. The purpose of AA is to ensure that suitably qualified persons from designated groups have equal employment opportunities and are equitably represented at all occupational levels in the workplace. A person may be suitably qualified for a job as a result of any one or more of the following: formal qualifications; prior learning; relevant experience or the capacity to acquire, within a reasonable time, the ability to do the job. Class notes are insufficient to study from

… the capacity to acquire, within a reasonable time, the ability to do the job. When determining whether a person is suitably qualified an employer must review all the above factors and determine whether that person has the ability to do the job. Public Servants Association of SA v Minister of Justice, 1997: Court held that it would be irrational if it was allowed that persons who are totally unqualified for a position are appointed when measured against the constitutional requirement of effectiveness. Stoman v Minister of Safety and Security,2002 : High Court held “the appointment of people who are wholly unqualified, or less than suitably qualified, or incapable, in responsible positions cannot be justified.” Coetzer v Minister of Safety and Security, 2003: Labour Court held that the Constitution has the objective to create balance between AA and effectiveness. Class notes are insufficient to study from

Affirmative action measures must include: Identify and eliminate employment barriers which adversely affect people from designated groups. Measures designed to further diversity in the workplace based on equal dignity and respect of all people. Reasonable accommodation (modification or adjustment) for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented in the workplace. Measures to ensure the equitable representation of suitably qualified people from designated groups at all occupational levels. Measures to retain and develop people from designated groups and to implement appropriate training measures. Class notes are insufficient to study from

Duties of designated employers Consult with his employees. Conduct a staff analysis or staff audit. Prepare and implement an employment equity plan. Report to the Director-General on progress made in implementing the plan. Class notes are insufficient to study from

Commission for Employment Equity Established in terms of Chapter IV of the Act. Advisory body who advises the Minister on: Codes of good practice Regulations made by the Minister Policy Any other matter relating to the Act CEE may research and report to the Minister. Award employers for their achievements in furthering the purposes of the Act. CEE is required to submit an annual report to the Minister. Class notes are insufficient to study from

Monitoring, enforcement and legal proceedings Employers, trade unions, labour inspectors, DG and the Labour Court play a role in monitoring and compliance with the Act. Labour inspectors (s 35-40) May enter any workplace, question any person and inspect documents, books, etc in an attempt to establish whether the employer is complying with the provisions of the Act. Request a written undertaking from an employer to comply with certain matters. Issue compliance order. Klasnotas is onvoldoende vir studie doeleindes.

Compliance orders are issued when a designated employer refuses to give a written undertaking when requested to do so. Compliance order must contain the name of the employer and the workplaces to which the order applies, the provisions of the Act which have not been met, details of the conduct constituting non-compliance, any written undertaking given by the employer and its failure to comply with it, steps the employer is required to take within a specified time to comply and the maximum fine that may be imposed for non- compliance. A copy of the compliance order must be served on the employer, who must display it at the workplace. Non-compliance / no objection = DG may apply to the Labour Court to have the compliance order made an order of the Court. Class notes are insufficient to study from.

Objection to a compliance order: An employer may object to a compliance order by submitting written representations to the DG within 21days after receipt thereof. DG has 60days to make his decision. He can confirm, vary or cancel any part of the order and specify the period of compliance. Copy is served on the employer. Employer must comply with the order or appeal to the Labour Court. Appeal has to be lodged within 21days and order is suspended until the Labour Court hears the appeal. Class notes are insufficient to study from

Director-General (s41-43) Assessment of compliance: Has the designated employer made reasonable efforts( new proposed legislation refers to reasonable STEPS taken) to implement an equity plan? Factors to take into consideration: Extend to which suitably qualified people from the designated groups are equitably represented within each occupational category. Demographic profile of the national and regional economically active population. Pool of suitably qualified people from designated groups available. Economic and financial factors. The number of present and planned vacancies and the employer’s labour turnover. Review Whether an employer is complying with the Act? DG can request a copy of the employer’s analysis, equity plan, etc. Meetings can be held. Approve, an employers EE plan or make recommendations. Non compliance of recommendations are referred to the Labour Court. Class notes are insufficient to study from

Labour Court(s49-50) Exclusive jurisdiction to determine any dispute about interpretation or application of the Act. Compensation / damages Fine. Make a compliance order an order of the Labour Court. Direct the CCMA to conduct an investigation. Hear an appeal of the employer. Make an appropriate order that is just and equitable in the circumstances. Direct an employer to comply with Chapter III. May order medical testing of an employee justifiable and may impose conditions related to the testing. Disputes referred in terms of Chapter II & Review of an employer at CCMA: CCMA proceedings are stayed until LC determines the DG’s referral. Class notes are insufficient to study from

Protection of employee rights Definition of an employee includes: Previous employees. Job applicants. No person may prevent an employee from exercising any right. Employee may not be prejudiced for exercising his rights. Employee may not be favoured for not exercising his rights. Disputes are referred to CCMA – conciliation / arbitration or LC. Disclosure of confidential information obtained during the performance of any function in terms of the Act constitutes a criminal offence, unless disclosure is required by law or ito a court order. All employers who want to contract with the State must comply with the Act. Non-designated employers must get a certificate from the Minister to confirm that they comply with the Act. Non-compliance may lead to cancellation of current contracts. Fines for non-compliance varies between R – R Class notes are insufficient to study from