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

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

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

3. 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

4. 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

5. 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)

6. 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prevented from acquiring citizenship as a result of Apartheid before then), do not benefit from AA • Consistent with repealed regulations (GNR 841 No. 29130 of 18 August 2006)

7. 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

8. 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?

9. 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

10. 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

11. 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

12. 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

13. 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.’

14. 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

15. 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

16. QUESTIONS … Your thoughts? …