When elephant retire- EE These notes are insufficient for study purposes

Employment Equity Act 55 of 1998

These notes are insufficient for study purposes.

When elephant retire- EE


Bill of Rights, Chapter II of the ConstitutionDramatic changes effected over the last few yearsConstitutional equity as per section 9 of the

Constitution need to be kept in mind when studying this section of the work

Study section 9 of the Constitution- see the handbook.

Two prime rights:Right to equality.Right not to be discriminated against.


Do not get confused:Section 9 of the Constitution guarantees:

Equality before the law– applicable to all EE en ER’s and job seekers.

Affirmative action provisions – applicable only to certain employers and applies to certain categories of people.

Know the exceptions and to whom these two sections and the EE Act apply and who not.


Constitution of South Africa, s9: Equality

(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. Historically discrimination occurred and measures are

required to address the inequalities of the past. Equal opportunities in the workplace must be

ensured. Is Affirmative Action “reverse discrimination”? Affirmative Action = positive action to overcome

institutionalized discrimination.


(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one ore more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. Discrimination = treating people differently. Fair discrimination?? YES think of job applications and

vacancies. Unfair discrimination = treating people differently on an

arbitrary ground/inappropriate criteria to differentiate between persons.

Direct discrimination: Discrimination on grounds listed but not limited thereto. When persons belong to a certain category.

Indirect discrimination: Neutral criteria is used to differentiate or exclude.


Requirement for discrimination:Differentiation between listed and unlisted

grounds: Be careful. Differentiation must be proven. * the applicant must

prove that* Differentiation was unfair.

Burden of proof: Discrimination on listed grounds:

Presumption that the discrimination is unfair. Respondent must show it is not unfair.(employer

must prove that discrimination is fair) Discrimination on unlisted grounds:

Applicants must prove there was discrimination and that it was unfair.


(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. ILO defines discrimination as: “… any distinction, exclusion

or preference… which has the effect of nullifying or impairing equality of opportunity or treatment in employment and occupation… and any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.”

General definition of unfair discrimination: “…use of irrelevant criteria to distinguish between individuals or groups, which has the purpose/effect of less favourable consequences for members of a group in relation to those of another.”

Two (2) forms of discrimination are not considered unfair and consequently allowed;

Affirmative action. Differentiation based on inherent requirements of a job.


Objectives of the Employment Equity Act

To achieve equality through promotion of equal opportunities and fair employment practices.

Elimination of unfair discrimination through affirmative action measures.

To ensure equitable representation in all occupational categories and levels.

Designated employers must take measures to reduce disproportionate differentials.


Employment Equity Act applies to all employees and employers with the exclusion of:

NDFNIASA Secret ServiceSA National Academy of IntelligenceStaff and directors of COMSEC. (COMSEC (formally Electronic

Communications Security (Pty) Ltd) is a company owned by the Government of South Africa through its National Intelligence Agency. COMSEC’s main task is to secure South African government communications against any unauthorized access and also from technical, electronic or any other related threats. The company also provides verification services for electronic communications security systems, products and services used by the South African government.)

(Discrimination matters are dealt with by the Constitutional Court or a complaint lodges with the Human Rights Commission)

http://en.wikipedia.org/wiki/Government_of_South_Africa

http://en.wikipedia.org/wiki/National_Intelligence_Agency

http://en.wikipedia.org/wiki/Telecommunication


EEA, Chapter II:

Prohibits discrimination.Employers must take steps to promote

equality and eliminate unfair discrimination.

Applies to all employers and employees and jpb applicants


Provisions of Chapter II:Requires an employer to take steps to promote equal

opportunities by eliminating unfair discrimination in employment policies and practices.

Employer must address unfair discrimination in relation to wage differentials by way of collective bargaining / BCEA measures.

Medical testing of employees are prohibited unless permitted by legislation.

HIV testing is prohibited unless permitted by the LC.Psychometric testing is prohibited unless the test being

used has been scientifically validated as one that provides reliable results and is appropriate for the intended purpose. The test must be applied fairly to all employees irrespective of their culture to exclude bias to people from designated groups.


EEA, Chapter III:Refers to designated employers only and applies to

persons from designated groups only.

Designated employer: >50 employees. <50 employees but exceed the prescribed annual

turnover of a small business as stipulated in the Act. Municipality. Organ of State, excluding local government spheres,

NDF, NIA, SASS. Employer becomes a designated employer in terms of

a collective agreement.Employer excluded may become subject to the

provisions: By notification to the Director General. Order of the Labour Court.


Designated employees – with no preferential ranking specified;Black people (Africans, Colourdes and Indians).Women.People with disabilities.


Disputes about Unfair discrimination:Written referral to CCMA (not Bargaining

Council) within 6 months.Conciliation.Agreed Arbitration / Labour Court.


ADDITIONAL NOTES

Do the Activities as per the study guide and complete the vocabulary lists.

Do not forget to study section 9 of the ConstitutionStudy paragraphs 4.2.2 ,4.4-4.6 , 4.8Read par 4.1,4.3,4.7.4,9-4.10Study the relevant court cases as per your bundle.

Outcomes:Discuss the consequences and legal consequences of section 9(1)Discuss the provisions of affirmative actionDiscuss the provisions re anti-discriminationWhat is the purpose/aim of affirmative action?Harksen v Lane :How do you establish if unfair discrimination

occurred?

Documents

When elephant retire- EE These notes are insufficient for study purposes