25 February 2000

The main purpose of the Employment Equity Act is to achieve equality in the work place by:

1. Promoting equal opportunity and fair treatment through the elimination of unfair discrimination.
2. Implementing positive measures (affirmative action) to ensure the equitable representation of black people, women and the disabled at all levels in the work place.

Chapter 2 of the Act, which deals with unfair discrimination, applies to all employees and employers. Chapter 3, which deals with affirmative action, applies only to designated groups (black people, women and the disabled) and certain categories of employers, which includes a firm with 50 or more employees. Other designated employers include employers whose annual turnover is equal to or above that contained in the schedule, municipalities, organs of state excluding local government, the SANDF, the NIA and the SASS, and employers who volunteer to comply with the Act.

Designated employers will be required to develop employment equity plans detailing the goals to achieve suitable representation in the workplace and the timetable within which this is to be achieved. Regulations will allow for simpler procedures for firms with fewer than 150 employees.

Designated employers have four main obligations (detailed in the following section), to achieve the equitable representation of black people, women and the disabled in the workplace. The central mechanism to achieve this objective is through the creation, implementation and monitoring of an Employment Equity Plan.

Contraventions to this Act may be brought to the attention of a number of persons including a union, a labour inspector, the Director General and the Employment Equity Commission. Labour inspectors are empowered to question persons and inspect the workplace for contraventions to the Act. Maximum penalties for contraventions to certain provisions of the Act (related to the implementation of the Plan) are set out in Schedule 1. These range from a fine of R500 000 for a first offence to R900 000 for the fifth offence over a period of 3 years.

1. Unfair discrimination

All employers must take steps to prevent discrimination in any employment policy or practice. Grounds for unfair discrimination are numerous and include race, sex, pregnancy, HIV status and religion amongst others.

2. Affirmative Action

An employer basically has four main duties. These are:

1. Process: This includes consultation with employees and employee representatives. The issues to be consulted must include the methodology for the conduct of the analysis, the preparation and implementation of the plan and the report to the Department of Labour. The employer must impart all relevant information, which would make consultation effective.
2. Research: Conduct an analysis of all employment practices, including access to medical aid and pension funds, recruitment procedure, remuneration, training etc. This analysis must also include the preparation of a work force profile in all levels from senior management to unskilled persons.
3. Prepare and implement an employment equity plan. This plan, arising from the analysis must cover a number of issues ranging from the objectives to be achieved for the following five years to time frames for achievement of objectives and goals.
4. Report: A report of the plan and progress toward its objectives must be submitted to the Department of Labour on an annual or bi-annual basis, depending on the size of the organisation. Designated employers with more than 150 employees must submit a new report each year. Other designated employers need only submit a report every two years. Designated employers who are public companies must publish a summary of the report in their annual financial statement. Designated employers who are state organs must table the report in Parliament. Every designated employer must assign one or more managers to take responsibility for implementing and monitoring the plan. Regulations, containing a standard notice summarising the provisions of the Act must be displayed in the workplace. The employer must keep all records relevant to the Act for a prescribed period of time.

The President: The President must after consultation with the Minister of Public Service and Administration publish a notice in the Government Gazette listing every designated employer within the organs of State.

The Minister: The Minister will make regulations summarising the provisions of the Act in a standard notice for display in the workplace. The Minister must appoint the chairperson and the eight other members of the Commission. The Minister must provide the Commission with sufficient staff. The Minister may also get involved other areas of the Commission such as conditions of appointment and the removal of the chairperson. The Minister must keep a register of designated employers that have submitted reports. The Minister may issue a code of good practice (an enabling act), which would assist in the implementation of the Act. The Minister must issue regulations regarding simplified forms and procedures in regard to analysis, the employment equity plan, the report, duty to inform and duty to keep records for smaller organisations that employ less then 150 employees.

Director General: The Director General may conduct a review to determine an employer’s compliance to the Act. After the review, the Director General may either approve the plan or recommend action that should be taken by the employer. The Director-General also has other duties to ensure compliance with the Act specifically in regard to instances where non-compliance has been notified.

The role of the Commission is to advise the Minister on Codes of Good Practice, the regulations and policy. The Commission may also make achievement awards to employers, and research and report to the Minister on issues relating to the Act. The Commission must submit an annual report to the Minister.

COMPILED BY THE PARLIAMENTARY INFORMATION SERVICES: RESEARCH