2. EMPLOYMENT EQUITY ACT Came into effect of 1 August 2014
2
3. PURPOSE To substitute or insert definitions To further
prohibit unfair discrimination To impose harsher fines or penalties
for non-compliance 3
4. DESIGNATED GROUPS Black people, women and people with
disabilities who - are citizens of the RSA by birth or descent;
became citizens of the RSA by naturalization prior to 27 April
1994; or after 26 April 1994 and who would have been entitled to
acquire citizenship prior to that date but for Apartheid policies
4
5. NEW GROUNDS OF DISCRIMINATION a difference in terms and
conditions of employment between - employees performing the same or
substantially the same work; or work of equal value that is
directly or indirectly based on one or more of the grounds already
contemplated in the EEA. 5
6. EQUAL PAY FOR EQUAL WORK What does it mean? 6
7. EQUAL PAY FOR EQUAL WORK - INTERNATIONAL STANDARDS ILO Equal
Remuneration Convention Convention 100 of 1951 (ratified 30 March
2000) Each member shall, by means appropriate to the methods in
operation for determining rates of remuneration, promote and, in so
far as is consistent with such methods, ensure the application to
all workers of the principle of equal remuneration for men and
women workers for work of equal value 7
8. EQUAL PAY FOR EQUAL WORK INTERNATIONAL STANDARDS Universal
Declaration Of Human Rights Everyone, without any discrimination,
has the right to equal pay for equal work. ILO Discrimination
(Employment and Occupation) Convention Convention 111 of 1958
(ratified 5 March 1997) Each member undertakes to declare and
pursue a national policy designed to promote, equality of
opportunity and treatment in respect of employment and occupation,
with a view to eliminating any discrimination in respect thereof.
8
9. EQUAL PAY FOR EQUAL WORK - EEA REGULATIONS Equal work - work
that is identical or interchangeable; work performed by employees
that is sufficiently similar that they can reasonably be considered
to be performing the same job, even if their work is not identical
or interchangeable; or if their respective occupations are accorded
the same value in accordance with regulations 5 - 7 9
10. DETERMINING EQUAL WORK? Same Value (regulation 5) step one
- is the work of equal value (in accordance with regulation 6); and
is there a difference in terms and conditions of employment,
including remuneration; step two - whether any difference
constitutes unfair discrimination. 10
11. DETERMINING EQUAL WORK? Criteria for equal value
(regulation 6) responsibility demanded of the work, responsibility
for people, finances and material; skills, qualifications,
including prior learning and experience required, whether formal or
informal; physical, mental and emotional effort required;
conditions under which work is performed, including physical
environment, psychological conditions, time when and geographic
location; any other factor indicating the value of the work may be
taken into account in evaluating work. 11
12. DETERMINING EQUAL WORK? the assessment of equal value
conducted in a manner that is free from bias on grounds of race,
gender or disability, any other listed or arbitrary ground employer
may justify the value assigned to work with reference to the
classification of a relevant job in terms of a sectoral
determination made by the Minister of Labour in terms of BCEA
12
13. EQUAL BUT DIFFERENT (?) Unequal terms and conditions in
respect of employees performing work of equal value, is not unfair
discrimination if the difference is - fair; rational; based on any
one or a combination of the grounds (regulation 7); 13
14. EQUAL BUT DIFFERENT (?) REGULATION 7 - seniority; length of
service; qualifications; ability; competence or potential above the
minimum; performance; quantity or quality of work (provided that
employees are equally subject to the employer's performance
evaluation system); 14
15. EQUAL BUT DIFFERENT (?) REGULATION 7 demotion
(organisational restructuring or other legitimate reason) without a
pay reduction and fixing the employee's salary until the
remuneration of employees in the same job category reaches this
level; individual employed temporarily in a position for purposes
of gaining experience or training, receiving different remuneration
or different terms and conditions; skill shortage or the market
value in a particular job classification; any other relevant factor
that is not unfairly discriminatory. 15
16. DISPUTES unfair discrimination and prohibited medical or
psychological testing, all disputes CCMA, unless the employee earns
in excess of the earnings threshold (R205 433.30), in which case
the dispute must be referred to the Labour Court; sexual harassment
cases - CCMA; certain arbitration awards can be appealed to the
Labour Court 16
17. BURDEN OF PROOF If discrimination alleged on section 6(1)
grounds the employer must- prove that discrimination did not take
place; or is rational, not unfair, justifiable. If discrimination
alleged on arbitrary grounds the complainant must prove - conduct
not rational; conduct amounts to discrimination; discrimination
unfair. 17
18. PENALTIES AND FINES The Act significant changes to the
fines and penalties provided for previously. The previous fines and
penalties have been amended by increasing the fines payable in
respect of contraventions. Fines currently range from R500 000 to
R900 000. 18
19. PROPOSED PENALTIES AND FINES Consultation, analysis,
appoint manager, displaying information, retention or records -
First contravention R1 500 000; Four previous contraventions R2 700
000. Non-compliance with the employment equity plan or employment
equity reporting obligations of the Act First contravention the
greater of R1 500 000 or 2% of turnover; Four previous the greater
of R2 700 000 or 10% of turnover. 19
20. SOUTH AFRICAN POLICE SERVICE V SOLIDARITY OBO BARNARD
[2014] ZACC 23
21. SAPS V SOLIDARITY OBO BARNARD [2014] ZACC 23 Section 6(1)
of the EEA provides that No person may unfairly discriminate,
directly or indirectly, against an employee, in any employment
policy or practice, on one or more grounds, including race, gender,
sex, pregnancy, marital status, family responsibility, ethnic or
social origin, colour, sexual orientation, age, disability,
religion, HIV status, conscience, belief, political opinion,
culture, language, birth or on any other arbitrary ground. 21
22. SAPS V SOLIDARITY OBO BARNARD [2014] ZACC 23 Section 9(2)
of the Constitution of the Republic of South Africa provides
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. 22
23. SAPS V SOLIDARITY OBO BARNARD [2014] ZACC 23 Background of
dispute the dispute relates to the question of whether or not the
decision of the National Commissioner of the SAPS not to promote
Barnard to the position of superintendent in the SAPS National
Evaluation Service, constitutes unfair discrimination on grounds of
race. 23
24. SAPS V SOLIDARITY OBO BARNARD [2014] ZACC 23 Labour Court
(24 February 2010)- upheld Barnards claim that the failure to
promote amounted to unfair discrimination; held that SAPS failed to
discharge onus to prove that decision was fair and therefore the
decision not to appoint Barnard was unfair and invalid; Employment
Equity Plan must be applied fairly with due regard to the affected
individuals right to equality. 24
25. SAPS V SOLIDARITY OBO BARNARD [2014] ZACC 23 Labour Appeal
Court (2 November 2012) upheld the appeal and set aside the order
of the Labour Court; no discrimination had occurred because no
appointment had been made; the decision not to promote Barnard was
justifiable. 25
26. SAPS V SOLIDARITY OBO BARNARD [2014] ZACC 23 Supreme Court
of Appeal (28 November 2013) reversed the decision of the Labour
Appeal Court; held Barnard should be paid compensation calculated
as the difference between what she would have earned had she been a
superintendent and what she continued to earn as a captain, but
limited to a two-year period; National Commissioners decision not
to appoint her amounted to discrimination on the ground of race;
SAPS did not discharge onus to prove the discrimination was not
fair. 26
27. SAPS V SOLIDARITY OBO BARNARD [2014] ZACC 23 Constitutional
Court (2 September 2014) appeal against SCA decision upheld;
decision of the LAC affirmed; SCA misconceived the issues before
it; SCA obliged to examine the equality claim through the prism of
section 9(2) of the Constitution and section 6(2) of the EEA
because the validity of the SAPS Employment Equity Plan was not
under challenge by Barnard; 27
28. SAPS V SOLIDARITY OBO BARNARD [2014] ZACC 23 in addition,
the review of the National Commissioners decision, was only raised
for the first time on appeal and was therefore not properly before
the Constitutional Court; the claim that was brought before the
other Courts was that of unfair discrimination and not the National
Commissioners decision. 28
29. THANK YOU Date 18 September 2014 Legal notice: Nothing in
this presentation should be construed as formal legal advice from
any lawyer or this firm. Readers are advised to consult
professional legal advisors for guidance on legislation which may
affect their businesses. 2014 Werksmans Incorporated trading as
Werksmans Attorneys. All rights reserved.