In order to avoid confusion and simplify the procedures relating to affirmative action, reference will only be made to "occupational levels" in the workforce. Reference to "occupational categories" will be removed.
Threshold for "designated employers"
The total annual turnover thresholds set for employers in various industries (in order to be classified as a "designated employers" for the purposes of the affirmative action provisions of the EEA), will be increased to three times the current amount. This means that some employers that were obliged to comply by virtue of their turnover will no longer have to do so. Employers that employ 50 or more employees will still be regarded as "designated employers" irrespective of their turnover.
All designated employers, including those with 150 and less employees, will have to submit their EE reports annually.
Enforcement procedures will be truncated to promote more effective and efficient enforcement. For example, a labour inspector would be able to issue a compliance order without first having to obtain a written undertaking from an employer. The opportunity to object to a compliance order has been removed, but a decision may still be challenged at an appropriate juncture.
Assessment of compliance
The factors that may be taken into account in determining whether an employer is implementing employment equity in compliance with the EEA have been revised. The Minister will be empowered to make regulations dealing with the assessment of compliance, including specifying the circumstances under which an employer’s compliance should be assessed by reference to the demographic profile of either the national or regional economically active population.
An employer may raise any reasonable ground to justify failure to comply with the implementation of employment equity.
Employees who are placed with a client by a temporary employment service (labour broker) for longer than six months will be deemed to be employees of the client for the purposes of affirmative action.
The maximum fines that may be imposed for contraventions of the EEA will be increased threefold (in order to reflect the change in the value of money since 1998). In addition, an employer’s turnover could be taken into account in determining the maximum fine that may be imposed for substantive failures to comply with the EEA.
This Bill follows extensive consultation between the Department of Labour, organised business and organised labour. It is therefore unlikely that we will see any significant changes before it becomes law.
Jan Truter is a labour legislation expert at www.labourwise.co.za.
Article published courtesy of Sanlam Cobalt.