DEPARTMENT OF LABOUR
EMPLOYMENT EQUITY AMENDMENT BILL, 2012
Objectives of the Amendments to the EEA
1. To give effect to fundamental Constitutional rights, e.g.
right to equality, fair labour practices and protection
against unfair discrimination;
2. To strengthen the implementation and enforcement
mechanisms of the Act, e.g. increased fines for noncompliance; and
3. To ensure South Africa’s compliance with International
Labour Standards (Conventions 100 & 111);
Definitions – Section 1
 Definition of designated groups is revised to ensure that:
 Beneficiaries of Affirmative Action are limited to persons who
were citizens of South Africa before the democratic era (27
April 1994), or those who would have been entitled to
citizenships, but due to Apartheid policies could not, and their
descendants.
 Foreign nationals or those that became citizens subsequent to
1994 do not assist employers to achieve their AA targets and
goals at the expense of the designated South Africans.
 Status: Agreed
Prohibition of unfair discrimination
(Section 6 (1))
 Section 6(1) which prohibits unfair discrimination is
amended to clarify that:
 Discrimination is not permitted, either on a ground listed in
the section or on any arbitrary ground.
 This change is consistent with the terminology of section
187(1)(f) of LRA, which prohibits discriminatory dismissals.
 Status: Agreed
Equal pay for work of equal value
(Section 6(4))
 A new section 6(4) is inserted to:
 Deal explicitly with unfair discrimination by employers in
respect of terms and conditions of employment of employees
doing the same work, similar work or work of equal value; and
 Differences in pay/conditions of work between employees
performing the same or substantially the same work or work
of equal value will amount to unfair discrimination unless the
employer can show that differences are fair in relation to
experience, skill, responsibility and qualifications.
Status: Agreed
Equal pay for work of equal value
(Section 6(5))
 Section 6(5) is inserted to enable the Minister to
issue a regulation dealing with the criteria and
methodologies for evaluation of work of equal value.
Status: Agreed
Psychometric testing (Section 8)
 Section 8 dealing Psychometric and similar tests of
employees is amended to ensure that:
 Only psychometric tests and similar assessment tests
certified by the Health Professions Council of South
Africa, or another body which is authorized to certify
such tests may be used to test employees.
Status: Agreed
Arbitration of certain unfair discrimination claims by
the CCMA (Section 10(6))
 Section 10(6) is amended to:
 Allow employees an option of referring unfair discrimination cases for
arbitration in the CCMA in two circumstances:
 If the employee’s cause of action arises from an allegation of sexual
harassment on a prescribed ground; or
 Lower paid employees (those earning less than the earnings threshold
prescribed under the section 6(3) of the BCEA) will be entitled to refer any
discrimination claim to the CCMA for arbitration.
Status: Agreed
Onus of proof in discrimination claims
(Section 11)
 Section 11 is amended to:
 Bring consistency with approach and provisions
regulating the onus of proof in discrimination claims
as per section 13 of the Promotion of Equality and
the Prevention of Unfair Discrimination Act, 2000
(the Equality Act).
Status: Agreed
Onus of proof in discrimination claims
(Section 11 Cont...)
 If unfair discrimination is alleged on a prohibited
ground listed in section 6 (1), e.g. race, gender, HIV
status, disability, etc. – employer must prove on a
balance of probabilities that discrimination did not
take place or was rational or not unfair or justifiable.
 However, if unfair discrimination is alleged on an
arbitrary ground, the complainant must prove, on a
balance of probabilities that conduct was not rational
and discrimination is unfair
Status: Agreed
Employment Equity Plan (Section 20)
 Section 20 is amended to ensure that:
 All designated employers who fail to prepare and implement
their EE Plan can be referred directly to the Labour Court by
the Director General for a fine, without first securing an
undertaking or issuing a compliance order.
Status: Disagreement with business
 NB: All reference to ‘occupational categories’ have also been
removed in sections 15, 16, 19, 20, 27 & 42 – only
occupational levels are remaining.
Status: Agreed
Employment Equity Reporting (Section 21)
 Section 21 is amended to ensure that:
 All designated employers, irrespective of size submit reports
on progress in implementing their Employment Equity Plan on
an annual basis.
 Failure to submit an EE Report by an employer can be referred
directly to the Labour Court by the Director General for a fine
without securing an undertaking or issuing of a compliance
order.
Status: Agreed
Income Differentials (Section 27)
 Section 27 is amended to:
 Cater for measures to eliminate unfair discrimination in
relation to terms and conditions of employment ; and
 To give effect to the provisions of new clauses 6(4) & 6(5)
dealing with ‘equal pay for work of equal value’.
Status: Agreed
Enforcement mechanisms (Sections 36 & 37)
 Written Undertaking (section 36(1) & (2)) are amended to:
 make the power to request employers to make undertaking discretionary;
and
 empower the Director General to apply to the Labour Court to make such
undertaking an order of the Labour Court in instances of non compliance.
 Compliance Order (section 37(1) & (3)) are amended to:
 Clarify by specifying the sections to which a labour inspector has powers
to issue a compliance order; and
 Eliminate the step of objections to a compliance order by employers.
Status: Disagreement with organised business on sections 36 & 37
Enforcement mechanisms
(Sections 39 & 40)
 Section 39: Objections to compliance order
 Provision has been repealed
 Section 40: Appeal from compliance order
 Provision has been repealed
 Simplify and eliminate unnecessary mandatory steps in the
enforcement mechanisms of the Act.
Status: Disagreement with organised business on sections 39 & 40
Enforcement mechanisms
(Section 42)
 Assessment of compliance (section 42) is amended to:
 empower the Minister to make regulations dealing with the
assessment of compliance, including specifying circumstances
in which it should be assessed by reference to the national or
regional economically active population; and
 make it explicit that an employer may raise any reasonable
ground to justify why it has not complied.
Status: Agreed
Enforcement mechanisms Cont…
(Sections 45)
Section 45 is amended:
 To empower the Director General to apply to the Labour Court for an
order directing an employer to comply with a request made during a
review of the employer’s compliance with the Act or a recommendation
made as a result of such a review.
 If the employer notifies the DG that it does not accept a request or
recommendation, the request or recommendation lapses unless the DG
institutes proceedings within the stipulated period, i.e. 90 days for a
request and 120 days for a recommendation.
Status: Agreed
Arbitrations (Section 48(2))
and Powers of the Labour Court (Section 50(h))
 Section 48(2) is amended:
 To empower an arbitrator hearing an unfair discrimination
claim to make an award.
 Section 50(h) is amended:
 To ensure that the power of the Labour Court to review an
administration action in terms of the Act is made consistent
with the Promotion of Administrative Justice Act, 2000
Status: Agreed
Code of good practice (Section 53(5))
A new section 53(5) is inserted to:
Empower the Minister to make a code of good
practice dealing with the assessment of
whether employers are complying with the
Act for the purpose of awarding state
contracts.
Status: Agreed
Simplified forms and procedures (Section 55(2))
Section 55(2) is amended to:
Ensure that the Minister is got discretionary
powers to make simplified rules and
procedures for employers that employ fewer
than 150 employees in relation to the
reporting requirements.
Status: Agreed
Delegations (Section 56(1))
 Delegations - Section 56(1) is amended:
 To Ensure that the Minister’s power to issue certificates of
compliance with the Act is a delegable power. This will allow
for section 53, which requires persons contracting with the
state to comply with the Act, to be brought into effect.
Status: Agreed
Temporary employment services (Section 57)
 Temporary employment services - Section 57 is amended:
 To be consistent with the new approach to temporary
employment services proposed in the LRA Bill.
 For the purposes of Affirmative Action, employees who are
placed by a temporary employment service with a client for
longer than 3 months will be deemed to be employees of the
client.
Status: Agreed
Criminal Penalties (Sections 59 & 61)
 Sections 59 and 61 are amended:
 To increase the maximum fines that can be imposed for
criminal offences in terms of the Act is increase from R10 000
to R30 000.
 To ensure that the Minister may exercise the power to adjust
the maximum fine to counter inflation without the
concurrence of the minister of Justice.
Status: Agreed
Adjustment of annual turnover threshold
(section 64A)
 A new section 64A is inserted to:
 To empower the Minister to adjust the annual turnover
threshold, which is used to determine whether employers are
classified as designated employers in line with inflation.
Status: Agreed
Increase in fines (Schedule 1)
 Schedule 1 is amended to:
 Adjust the maximum fines that may be imposed for
contravention of the Act to reflect the change in the value of
money.
 In addition, the employer’s turnover may be taken into account
in determining the maximum fine that may be imposed for
substantive failures to comply with the Act.
Status: Disagreement with organised business on linking of fines
to turnover
Maximum permissible fines that may be imposed for
contravening this Act (Schedule 1)
Previous Contravention
Contravention of any
provision sections 16 (read
with 17), 19, 22, 24, 25 and
43(2)
Contravention of any
provisions of sections 20,
21, 23 and 44(b)
No previous contravention
[R500 000] R1 500 000
The greater of R1 500 000 or
2% of the employer’s
turnover
A previous contravention in
respect of the same
provision
[R600 000] R1 800 000
The greater of R1 800 000 or
4% of the employer’s
turnover
A previous contravention
within the previous 12
months or two previous
contraventions in respect of
the same provision within
three years
[R700 000] R2 100 000
The greater of R2 100 000 or
6% of the employer’s
turnover
Maximum permissible fines that may be imposed for
contravening this Act (Schedule 1) Cont…
Previous Contravention
Contravention of any
provision sections 16 (read
with 17), 19, 22, 24, 25 and
43(2)
Contravention of any
provisions of sections 20,
21, 23 and 44(b)
Three previous
contravention in respect of
the same provision within
three years
[R800 000] R2 400 000
The greater of R2 400 000 or
8% of the employer’s
turnover
Four previous contravention
in respect of the same
provision within three years
[R900 000] R2 700 000
The greater of R2 700 000 or
10% of the employer’s
turnover
Turnover threshold applicable to designated
employers (Schedule 4)
Schedule 4 is amended to:
Increase by 200% the total annual turnover
that an employer must exceed to be classified
as a designated employer.
Status: Agreed
Summary of the NEDLAC Report
Areas of agreement
Areas of disagreement
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Section 1
Section 6
Section 8
Section 10
Section 11
Section 21
Section 42
Section 45
Section 48
Section 20
Section 36
Section 37
Section 39
Section 40
Schedule 1
Summary of the NEDLAC Report
Cont…
Areas of agreement
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Section 50
Section 53
Section 55
Section 56
Section 59
Section 61
Section 64(A)
Schedule 4
Areas of disagreement
Thank You…