So as an employer what does this mean to you?
Here are a few exerpts from an article done by Global Business Solutions
This past Friday, the 25th of July 2014, saw the gazetting of the effective date of the amended Employment Equity Act, mere days before its implementation date of 1 August 2014. The passage of the amended Act has been subject to much debate and criticism. The substantially increased fines together with the discretion given to inspectors by the amended section 42 in order to determine substantive compliance, will almost certainly lead to an increase in litigation and possible corruption.
Fundamental changes you need to be aware of :
- Extension of grounds of discrimination to include “any other arbitrary ground”. In the past the grounds for discrimination were limited to issues such as age, race, gender, etc. Whilst this was not an exhaustive list, the extension bars unfair discrimination on any arbitrary ground;
- Equal treatment included. This topic has been the point of much discussion as the concept is not fully or consistently understood by all parties. This led to a group of Employment Equity Commissioners visiting foreign shores to research the topic and return to our shores with some definitive direction. It is important to note that the concept goes beyond “equal work for equal pay” and is all encompassing. In a nutshell “equal treatment” means that unless you have justification for differential treatment on the grounds listed, you will be in breach of the Act. This principle also finds a home in the new proposed Labour Relations Bill which calls for equal treatment between your perm staff and your TES, fixed term or part-time staff earning below the threshold(R 205 433.30 per annum) and after 3 months service unless you have a justifiable reason for differential treatment
- Psychometric tests are to be certified by HPCSA or a similar body. This has proven to be the change that has caused the least debate amongst the social partners. By inserting this definition we move away from the current grey definition which often leads to references to “Dr Google” and unfair practices;
- One of the eye-raising changes is that the CCMA is to be given jurisdiction in sexual harassment matters; or in unfair discrimination matters where employees earn below the threshold; or finally by consent. This not only represents a departure from the norm in terms of the settled process of dispute resolution involving the Labour Court as the forum where such disputes were previously exclusively settled, but also raises the question of whether damages will be claimable in the CCMA.
- The burden of proof in discrimination cases has also changed with the onus now shifting to employers to prove that discrimination did not take place and, if it did, that it was fair;
- There will be aligned reporting periods for large and small employers. This particular change will inevitably place an administrative burden on small business that previously only needed to report every alternate year;
- The most controversial of the changes must be the increase of fines. There will be a variety of fines ranging from 2% – 10% of turnover with alternative rand values should they be greater than a fine based on turnover, or for certain offences. Whilst non-compliance is not condoned, what is concerning is that discretion is given to labour inspectors in terms of their assessment of compliance. This, linked to the ability to refer matters straight to the Labour Court (applying discretion) will pose a massive challenge in respect of possible corruption and the increase in litigation.
Employment Equity Regulations
The regulations are still under discussion and it appears that there may be a strong chance of moving towards regional demographics rather than national.