The Employment Equity Amendments Bill published on 19 October 2012 ("the Bill") signifies the first amendments to the Employment Equity Act ("the EEA") since it came into operation in 1998. The Bill seeks to rectify anomalies and clarify uncertainties that have arisen from the interpretation of the EEA in the past decade. We will also see the expansion of the powers of the Labour Inspectorate and the jurisdiction of the CCMA.
The following amendments proposed by the Bill are worth taking note of:
Discriminatory grounds expanded
The grounds for discrimination will no longer be limited to those listed in section six of the EEA (race, gender, sex, pregnancy, etc.), but will also include discrimination "on any other arbitrary ground". This change would create consistency with the terminology used in section 187(1)(f) of the Labour Relations Act, 1995 (Act No. 66 of 1995), that prohibits discriminatory dismissals.
Currently psychological tests may be used on employees (including prospective employees) if they have been shown to be scientifically valid and reliable, can be applied fairly to all employees and is not biased against any employee or group.
The Bill introduces an additional requirement that only psychometric tests that have been certified by the Health Professions Council of South Africa, or another body which is authorised to certify such tests, may be used.
CCMA to have jurisdiction
At present, all unfair discrimination claims fall within the exclusive jurisdiction of the Labour Court. According to the Bill an employee would also be able to refer the dispute to the CCMA for arbitration if the employee complains about sexual harassment (as a form of discrimination).
Any other discrimination claims may be referred to the CCMA for arbitration by lower-paid employees (those earning less than the earnings threshold prescribed under section 6(3) of the BCEA, which is currently at R183 008 per year).
In the case of discrimination claims by higher earning employees, the parties may consent to the referral of a discrimination dispute to the CCMA for arbitration. However, the maximum award that the CCMA can make in respect of damages will be an amount equal to the earnings threshold referred to above.
A person affected by an arbitrator’s award in a discrimination case will be entitled to appeal to the Labour Court.
Burden of proof
There will be some changes relating to the onus of proof in discrimination claims. In the case where an employee alleges one of the listed discriminatory grounds (race, gender, sex, pregnancy, etc), the onus will be on the employer to prove that discrimination did not take place as alleged, or is rational and not unfair, or is otherwise justifiable.
In the case of an allegation of unfair discrimination "based on any other arbitrary ground" the onus will be entirely on the employee.
Work of equal value
A new section is introduced in order to deal explicitly with unfair discrimination by an employer in respect of wages and other terms and conditions of employment of employees doing the same or similar work or work of equal value. A differentiation based on a ground envisaged by the EEA will amount to unfair discrimination unless the employer can show that differences in wages or other conditions of employment are in fact based on fair criteria such as experience, skill, responsibility, etc.
The Minister of Labour will be empowered to publish a code of good practice dealing with criteria and methodologies for assessing work of equal value.
Only apartheid victims to benefit
The definition of "designated groups" is amended to ensure that beneficiaries of affirmative action are limited to persons who were citizens of South Africa before the democratic era, or would have been entitled to citizenship, but for the policies of apartheid, and their descendants. As a result the employment of persons who are foreign nationals, or who have become citizens after April 1994, will not assist employers to meet their affirmative action targets.
Article continues on page two: occupational categories excluded, threshold for "designated employers", annual reports, enforcement procedures, assessment of compliance, labour brokers, increased fines...