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Employment Equity Plan-Amendments Part 2


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Employment Equity Plan

Following on from last weeks blog post we will continue with:


  1.          Chapter II – prohibition of unfair discrimination

(a)        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, consciencebelief, political opinion, culture, language, birth or on any other arbitrary ground.

(b)        It is not unfair discrimination to promote affirmative action consistent with the Act or to prefer or exclude any person on the basis of an inherent job requirement.

2.1.    Equal pay for work of equal value: Section 6(4)

(a)        Employers may not unfairly discriminate against employees by providing different terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more grounds listed in subsection 6(1) or on any other arbitrary ground.

2.1.      Medical testing: Section 7

(a)        Medical testing of an employee is permissible only when legislation requires testing or when this is justifiable for various reasons.

(b)        HIV testing is prohibited unless such testing is determined to be justifiable by the Labour Court.

2.2.      Psychometric testing: Section 8

Psychometric testing and other similar assessments of an employee are prohibited unless the test or assessment being used has been scientifically shown to be valid and reliable, can be applied fairly to all employees, is not biased against any employee; and has been certified by the Health Professions Council of South Africa (HPCSA) established under the Health Professions Act, 56 of 1974 or any other body which may be authorized by law to certify such tests or assessments.

2.3.      Disputes concerning Chapter 2: Section 10

(a)        An employee, or applicant for employment, may refer a dispute concerning alleged unfair discrimination, medical or psychological testing to the CCMA for conciliation. This must be done within six months of the alleged discrimination or testing.

(b)        If a dispute is not resolved after conciliation, any party to the dispute may refer it to the Labour Court for adjudication. The parties to a dispute may also agree to refer the dispute for arbitration.

(c)        Unfair dismissal disputes in which unfair discrimination is alleged must be dealt with in terms of the Labour Relations Act. The dismissal must be referred to the CCMA within 30 days.

(d)        An employee may refer a dispute to the CCMA for arbitration if :–

(i)         the employee alleges sexual harassment; and

(ii)        in any other case, where the employee earns less than the amount prescribed by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act; or

(e)        Any party may refer the dispute to the CCMA for arbitration. 

3.       Chapter III – Affirmative Action 

3.1       Duties of a designated employer: Section 13

(a)        A designated employer must implement affirmative action measures for designated groups to achieve employment equity.

(b)        In order to implement affirmative action measures, a designated employer must-

(i)         Consult with employees;

(ii)        Conduct analysis;

(iii)       Prepare an Employment Equity Plan; and

(iv)       Report to the Director-General on progress made in the implementation of the plan.

3.2       Affirmative action measures: Section 15 

(a)        Affirmative action measures are measures intended to ensure that suitably qualified employees from designated groups have equal employment opportunities and are equitably represented in all occupational levels of the workforce.

(b)        Such measures must include:

(i)         Identification and elimination of barriers with an adverse impact on designated groups;

(ii)        Measures which promote diversity;

(iii)       Making reasonable accommodation for people from designated groups;

(iv)       Retention, development and training of designated groups (including skills development); and

(v)        Preferential treatment and numerical goals to ensure equitable representation, which exclude quotas.

(c)        Designated employers are not required to take any decision regarding an employment policy or practice that would establish an absolute barrier to prospective or continued employment or advancement of people not from designated groups.

3.3       Consultation: Section 16 and 17

(a)        A designated employer must consult with its employees and their representatives on employment equity matters

(b)        Designated employers should consult with employees both from designated and non-designated groups, and employees representing the interests of individuals from the various occupational levels.

(c)        Matters for consultation must include issues relating to the conducting of an analysis, preparing and implementing an Employment Equity Plan and preparation and submission of employment equity reports.

3.4       Disclosure of information: Section 18

To ensure meaningful consultation, the employer must disclose relevant information to the consulting parties, subject to section 16 of the Labour Relations Act 66 of 1995.

3.5       Analysis: Section 19

A designated employer must conduct an analysis of employment policies, practices, procedures and the work environment so as to identify employment barriers that adversely affect members of the designated groups. The analysis must also include the development of a workforce profile to determine to what extent designated groups are under-represented in the workplace.