Workinfo.com
332 Kent Avenue Randburg
PO Box 925 Lanseria
Gauteng South Africa 1748
Tel: +27 (0)11 781 4228
Fax: +27 (0)86 689 7862

   Home | Contact | Subscribe | Login | Previews | Newsletter | Caselaw | Service | Shop

    Workinfo.com Home PageContact Us Today Workinfo.com Alphabetical Index 

 

REPUBLIC OF SOUTH AFRICA

 

Employment Equity Act, No. 55 Of 1998

As amended by Act 47 of 2013

 

ACT

 

To provide for employment equity; and to provide for matters incidental thereto.

 

Recognising‑

 

·            that as a result of apartheid and other discriminatory laws and practices, there are disparities in employment, occupation and income within the national labour market; and

·            that those disparities create such pronounced disadvantages for certain categories of people that they cannot be redressed simply by repealing discriminatory laws,

 

Therefore, in order to‑

 

·            promote the constitutional right of equality and the exercise of true democracy;

·            eliminate unfair discrimination in employment;

·            ensure the implementation of employment equity to redress the effects of discrimination;

·            achieve a diverse workforce broadly representative of our people;

·            promote economic development and efficiency in the workforce; and

·            give effect to the obligations of the Republic as a member of the International Labour Organisation,

 

 

To amend  the  Employment Equity Act,  1998, so as to[1]

 

·            substitute or amend certain definitions;

·            to  further  regulate the  prohibition  of  unfair discrimination   against employees;

·            to  further  regulate the  certification  of  psychometric  testing used  to assess  employees;

·            to provide  for the  referral of certain disputes for arbitration  to the  Commission  for  Conciliation, Mediation  and  Arbitration;

·            to  make further provision  regarding  the evidentiary  burden  of  proof in  allegations  of  unfair discrimination;

·            to further   regulate  the preparation  and implementation  of employment equity  plans  and the submission  of reports  by designated employers  to the Director-General;

·            to further regulate  undertakings  by designated employers to comply with requests by  labour inspectors;

·            to  further  regulate the  issuing of compliance orders;  

·            to provide  afresh  for the assessment  of  compliance  by designated employers with  employment equity  and  the  failure  of those  employers to comply  with  requests and  recommendations   made  by the  Director-General;   

·            to extend  the powers  of commissioners in arbitration proceedings;

·            to provide  for that fines  payable in terms  of the Act must  be paid  into the National Revenue  Fund;

·            to extend  the Minister's power  to issue a code of good practice  and  to delegate  certain powers;

·            to increase and  provide for  the  increase by the  Minister of certain fines which may be  imposed under the  Act; 

·            and to  amend and to  provide for  the amendment by the Minister  of annual  turnover thresholds applicable to designated employers; 

·            and  to provide  for matters connected therewith.

 

BE IT ENACTED by the State President and the Parliament of the Republic of South Africa, as follows:-

 

TABLE OF CONTENTS

CHAPTER 1

Definitions, purpose, interpretation and application

1.   Definitions

2.   Purpose of this Act

3.   Interpretation of this Act

4.   Application of this Act

CHAPTER 2
Prohibition of unfair discrimination

5.   Elimination of unfair discrimination

6.   Prohibition of unfair discrimination

7.   Medical testing

8.   Psychometric testing

9.   Applicants

10. Disputes concerning this Chapter

11. Burden of proof

CHAPTER 3
Affirmative action

12. Application of this Chapter

13. Duties of designated employers

14. Voluntary compliance with this Chapter

15. Affirmative action measures

16. Consultation with employees

17. Matters for consultation

18. Disclosure of information

19. Analysis

20. Employment equity plan

21. Reports

22. Publication of report

23. Successive employment equity plans

24. Designated employer must assign manager

25. Duty to inform

26. Duty to keep records

27. Income differentials

 

CHAPTER 4
Commission for employment equity

28.  Establishment of Commission for Employment Equity

29.  Composition of Commission for Employment Equity

30.  Functions of Commission for Employment Equity

31.  Staff and expenses

32.  Public hearings

33.  Report by Commission for Employment Equity

CHAPTER 5
Monitoring, enforcement and legal proceedings

Part A: Monitoring and Enforcement

34.  Monitoring by employees and trade union representatives

35.  Powers of labour inspectors

36.  Undertaking to comply

37.  Compliance order

38.  Limitations

39.  Objections against compliance order

40.  Appeal from compliance order

41.  Register of designated employers

42.  Assessment of compliance

43.  Review by Director-General

44.  Outcome of Director-General's review

45.  Failure to comply with Director-General's recommendation

Part B: Legal Proceedings

46.  Conflict of proceedings

47.  Consolidation of proceedings

48.  Powers of commissioner in arbitration proceedings

49.  Jurisdiction of Labour Court

50.  Powers of Labour Court

Part C: Protection of Employee Rights

51.  Protection of employee rights

52.  Procedure for disputes

CHAPTER 6
General provisions

53.  State contracts

54.  Codes of good practice

55.  Regulations

56.  Delegations

57.  Temporary employment services

58.  Designation of organs of state

59.  Breach of confidentiality

60.  Liability of employers

61.  Obstruction, undue influence and fraud

62.  This Act binds the State

63.  Application of Act when in conflict with other laws

64.  Repeal of laws and transitional arrangements

65.  Short title and commencement

CHAPTER 6

Schedule 1:          Maximum permissible fines that may be imposed for contravening this Act

Schedule 2:         Laws repealed

Schedule 3:         Transitional arrangements

Schedule 4:       Turnover threshold applicable to designated employers


 

CHAPTER 1
Definitions, purpose, interpretation and application

1.           Definitions

In this Act, unless the context otherwise indicates-

"Basic Conditions of Employment Act" means the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997);

"black people" is a generic term which means Africans, Coloureds and Indians;

"CCMA" means the Commission for Conciliation, Mediation and Arbitration, established by section 112 of the Labour Relations Act;

"code of good practice" means a document issued by the Minister in terms of section 54;

"collective agreement" means a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand-

(a)    one or more employers;

(b)      one or more registered employers' organisations; or

(c) one or more employers and one or more registered employers' organisations; "Commission" means the Commission for Employment Equity, established by section 28; "Constitution" means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996); "designated employer" means-

(a)     a person who employs 50 or more employees;

(b)     a person who employs fewer than 50 employees but has a total annual turnover that is equal to or above the applicable annual turnover of a small business in terms of the Schedule 4 of this Act;

(c)     a municipality, as referred to in Chapter 7 of the Constitution;

(d)    an organ of state as defined in section 239 of the Constitution, but excluding the National Defence Force, the National Intelligence Agency and the South African Secret Service; and

(e)     an employer bound by collective agreement in terms of section 23 or 31 of the Labour Relations Act, which appoints it as a designated employer in terms of this Act, to the extent provided for in the agreement.

"designated groups" means black people, women and people with disabilities who –[2]

(a)    are  citizens   of the  Republic   of  South  Africa   by  birth  or  descent;    or

(b)     became   citizens   of the  Republic   of South  Africa   by naturalisation-

(i)     before   27 April   1994;  or

(ii)     after   26  April   1994  and  who   would   have   been   entitled    to acquire    citizenship     by  naturalisation     prior   to  that   date   but who  were   precluded    by apartheid    policies;

"Director-General" means the Director-General of the Department of Labour;

 "dismissal" has the meaning assigned to it in section 186 of the Labour Relations Act; "dispute" includes an alleged dispute;

"employee" means any person other than an independent contractor who-

(a)      works for another person or for the State and who receives, or is entitled to receive, any

remuneration; and

(b)      in any manner assists in carrying on or conducting the business of an employer,

and "employed" and "employment" have corresponding meanings;

 

"employment law" means any provision of this Act or any of the following Acts:

(a)      The Unemployment Insurance Act, 1966 (Act No. 30 of 1966);

(b)      the Guidance and Placement Act, 1981 (Act No. 62 of 1981);

(c)      the Manpower Training Act, 1981 (Act No. 56 of 1981);

(d)     the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993);

(e)      the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993);

(f)      the Labour Relations Act, 1995 (Act No. 66 of 1995);

(g)     the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997);

(h)     any other Act, whose administration has been assigned to the Minister.

"employment policy or practice" includes, but is not limited to-

(a)      recruitment procedures, advertising and selection criteria;

(b)      appointments and the appointment process;

(c)      job classification and grading;

(d)     remuneration, employment benefits and terms and conditions of employment;

(e)      job assignments;

(f)      the working environment and facilities;

(g)     training and development;

(h)     performance evaluation systems;

(i)      promotion;

(j)      transfer;

(k)      demotion;

(l)      disciplinary measures other than dismissal; and

(m)      dismissal.

"family responsibility" means the responsibility of employees in relation to their spouse or partner, their dependant children or other members of their immediate family who need their care or support;

"HIV" means the Human Immunodeficiency Virus;

"labour inspector" means a person appointed in terms of section 63[3] of the Basic Conditions of Employment Act;

"Labour Relations Act" means the Labour Relations Act, 1995 (Act No. 66 of 1995);

"medical testing" includes any test, question, inquiry or other means designed to ascertain, or which has the effect of enabling the employer to ascertain, whether an employee has any medical condition;

"Minister" means the Minister of Labour;

"NEDLAC" means the National Economic, Development and Labour Council established by section 2 of the National Economic, Development and Labour Council Act, 1994 (Act No. 35 of 1994);

"organ of state" means an organ of state as defined in section 239 of the Constitution;

"people with disabilities" means people who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment;

"pregnancy" includes intended pregnancy, termination of pregnancy and any medical circumstances related to pregnancy;

"prescribed" means prescribed by a regulation made under section 55;

"public service" means the public service referred to in section 1 (1) of the Public Service Act, 1994 (promulgated by Proclamation No. 103 of 1994), and includes any organisational component contemplated in section 7 (4) of that Act and specified in the first column of Schedule 2 to that Act, but excluding-

(a)      the National Defence Force;

(b)      the National Intelligence Agency; and

(c)       the South African Secret Service.

"reasonable accommodation" means any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment;

"registered employers' organisation" means an employers' organisation as defined in section 213 of the Labour Relations Act and registered in terms of section 96 of that Act;

"registered trade union" means a trade union as defined in section 213 of the Labour Relations Act and registered in terms of section 96 of that Act;

"remuneration" means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State;

"representative trade union" means a registered trade union, or two or more registered trade unions acting jointly, that are sufficiently representative of the employees employed by an employer in a workplace;

"Republic" means the Republic of South Africa as defined in the Constitution; "serve" or "submit", in relation to any communication, means either-

(a)      to send it in writing delivered by hand or registered post;

(b)  to transmit it using any electronic mechanism as a result of which the recipient is capable of printing the communication; or

(c)  to  send  or  transmit    it in  any  other   prescribed    manner.[4]

"suitably qualified person" means a person contemplated in sections 20 (3) and (4); "this Act" includes any regulations made under section 55, but excludes any footnote;

"trade union representative" means a member of a registered trade union who is elected to represent employees in a workplace;

"workplace forum" means a workplace forum established in terms of Chapter V of the Labour Relations Act.

2.            Purpose of this Act

The purpose of this Act is to achieve equity in the workplace by-

(a)      promoting equal opportunity and fair treatment in employment through the elimination of unfair

discrimination; and

(b)      implementing affirmative action measures to redress the disadvantages in employment

experienced by designated groups, in order to ensure their equitable representation in all occupational levels[5] in the workforce.

3.               Interpretation of this Act

This Act must be interpreted-

(a)      in compliance with the Constitution;

(b)      so as to give effect to its purpose;

(c)      taking into account any relevant code of good practice issued in terms of this Act or any other

employment law; and

(d)     in compliance with the international law obligations of the Republic, in particular those contained

in the International Labour Organisation Convention (No. 111) concerning Discrimination in Respect of Employment and Occupation.

4.             Application of this Act

(1)      Chapter II of this Act applies to all employees and employers.

(2)       Except where Chapter III provides otherwise, Chapter III of this Act applies only to designated

employers and people from designated groups.

(3)     This Act does not apply to members of the National Defence Force, the National Intelligence Agency, or

the South African Secret Service1.

 

CHAPTER 2

Prohibition of unfair discrimination

 

5.               Elimination of unfair discrimination

Every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.

6.               Prohibition of unfair discrimination

(1)       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; and

(2)      It is not unfair discrimination to-

(a)      take affirmative action measures consistent with the purpose of this Act; or

(b)      distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.

(3)     Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a

combination of grounds of unfair discrimination listed in subsection (1).

(4)         A  difference  in  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  anyone  or  more of  the  grounds  listed in  subsection   (1), is  unfair discrimination. [6]

(5)         The  Minister,   after  consultation  with  the Commission,   may prescribe  the  criteria and  prescribe  the  methodology   for  assessing  work of  equal value  contemplated   in subsection  (4).[7]

 

7.           Medical testing

(1)               Medical testing of an employee is prohibited, unless-

(a)      legislation permits or requires the testing; or

(b)      it is justifiable in the light of medical facts, employment conditions, social policy, the fair

distribution of employee benefits or the inherent requirements of a job.

(2)               Testing of an employee to determine that employee's HIV status is prohibited unless such testing is determined justifiable by the Labour Court in terms of section 50 (4) of this Act.

8.            Psychometric testing

Psychometric testing and other similar assessments of an employee are prohibited unless the test or assessment being used-

(a)      has been scientifically shown to be valid and reliable;

(b)      can be applied fairly to employees; and

(c)      is not biased against any employee or group; and

(d)     has    been    certified     by   the   Health    Professions      Council     of   South    Africa established by section   2 of  the  Health   Professions    Act,   1974  (Act  No.  56  of 1974),  or any  other  body  which   may be authorised    by law to certify   those  tests or  assessments.[8]

9.    Applicants

For purposes of sections 6, 7 and 8, "employee" includes an applicant for employment.

10.     Disputes concerning this Chapter

(1)        In this section, the word "dispute" excludes a dispute about an unfair dismissal, which must be referred

to the appropriate body for conciliation and arbitration or adjudication in terms of Chapter VIII of the Labour Relations Act.

(2)        Any party to a dispute concerning this Chapter may refer the dispute in writing to the CCMA within six

months after the act or omission that allegedly constitutes unfair discrimination.

(3)        The CCMA may at any time permit a party that shows good cause to refer a dispute after the relevant

time limit set out in subsection (2).

(4)        The party that refers a dispute must satisfy the CCMA that-

(a)       a copy of the referral has been served on every other party to the dispute; and

(b)       the referring party has made a reasonable attempt to resolve the dispute.

(5)      The CCMA must attempt to resolve the dispute through conciliation.

(6)      If the dispute remains unresolved after conciliation-

(a)       any party to the dispute may refer it to the Labour Court for adjudication;

(aA)   an  employee    may  refer   the  dispute   to  the  CCMA   for  arbitration if-[9]

(i)    the  employee    alleges   unfair   discrimination      on  the  grounds of  sexual   harassment;[10]     or

(ii)     in any  other  case,  that  employee    earns  less  than  the  amount stated   in the determination     made  by the  Minister   in terms  of section    6(3)   of  the  Basic   Conditions     of  Employment     Act[11]; or

(b)       any  party  to the  dispute   may  refer  it to the  CCMA   for  arbitration    if all  the  parties    to  the  dispute   consent    to  arbitration     of  the    dispute[12]; and

(7)      The relevant provisions of Parts C and D of Chapter VII of the Labour Relations Act, with the changes

required by context, apply in respect of a dispute in terms of this Chapter.

(8)        A person   affected   by  an  award   made   by  a commissioner      of  the CCMA   pursuant    to  a  dispute   contemplated      in  subsection    (6)( aA)  may appeal   to the  Labour   Court  against   that  award   within   14 days  of the  date of  the  award,   but  the  Labour   Court,   on  good  cause   shown,   may  extend the  period   within   which   that  person   may  appeal.

 

11. Burden of proof[13]

11. (1)  If  unfair   discrimination      is alleged   on  a ground    listed   in  section 6(1),  the  employer    against   whom   the  allegation    is made   must   prove,   on  a balance   of  probabilities,     that  such  discrimination-

(a)        did  not  take  place   as alleged;   or

(b)        is rational   and  not  unfair,   or  is otherwise   justifiable.

(2)        If   unfair    discrimination       is   alleged    on   an   arbitrary     ground,    the complainant     must  prove,   on  a balance   of probabilities,     that-

(a)     the  conduct   complained     of  is not  rational;

(b)     the  conduct   complained     of  amounts   to discrimination;      and

( c)     the  discrimination      is unfair.".

 

CHAPTER 3
Affirmative action

12.    Application of this Chapter

Except where otherwise provided, this Chapter applies only to designated employers.

13.    Duties of designated employers

(1)      Every designated employer must, in order to achieve employment equity, implement affirmative action

measures for people from designated groups in terms of this Act.

(2)      A designated employer must--

(a)       consult with its employees as required by section 16;

(b)       conduct an analysis as required by section 19;

(c)       prepare an employment equity plan as required by section 20; and

(d)       report to the Director-General on progress made in implementing its employment equity plan, as

required by section 21.

14.     Voluntary compliance with this Chapter

An employer that is not a designated employer may notify the Director-General that it intends to comply with this Chapter as if it were a designated employer.

15.     Affirmative action measures

(1)      Affirmative action measures are measures designed to ensure that suitably qualified people from

designated groups have equal employment opportunities and are equitably represented in all occupational levels in the workforce of a designated employer.

(2)      Affirmative action measures implemented by a designated employer must include-

(a)       measures to identify and eliminate employment barriers, including unfair discrimination, which

adversely affect people from designated groups;

(b)       measures designed to further diversity in the workplace based on equal dignity and respect of all

people;

(c)       making reasonable accommodation for people from designated groups in order to ensure that

they enjoy equal opportunities and are equitably represented in the workforce of a designated employer;

(d)       subject to subsection (3), measures to‑

(i)         ensure the equitable representation of suitably qualified people from designated groups in

all occupational levels in the workforce; and

(ii)        retain and develop people from designated groups and to implement appropriate training

measures, including measures in terms of an Act of Parliament providing for skills development.

(3)      The measures referred to in subsection (2) (d) include preferential treatment and numerical goals, but

exclude quotas.

(4)      Subject to section 42, nothing in this section requires a designated employer to take any decision

concerning an employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups.

16. Consultation with employees

(1)        A designated employer must take reasonable steps to consult and attempt to reach agreement on the

matters referred to in section 17-

(a)        with a representative trade union representing members at the workplace and its employees or

representatives nominated by them; or

(b)        if no representative trade union represents members at the workplace, with its employees or

representatives nominated by them.

(2)      The employees or their nominated representatives with whom an employer consults in terms of

subsection (1) (a) and (b), taken as a whole, must reflect the interests of-

(a)      employees from across all occupational levels of the employer's workforce;

(b)      employees from designated groups; and

(c)     employees who are not from designated groups.

(3)     This section does not affect the obligation of any designated employer in terms of section 86 of the

Labour Relations Act to consult and reach consensus with a workplace forum on any of the matters referred to in section 17 of this Act.

17. Matters for consultation

A designated employer must consult the parties referred to in section 16 concerning-

(a)      the conduct of the analysis referred to in section 19;

(b)      the preparation and implementation of the employment equity plan referred to in section 20; and

(c)       a report referred to in section 21.

18. Disclosure of information

(1)      When a designated employer engages in consultation in terms of this Chapter, that employer must

disclose to the consulting parties all relevant information that will allow those parties to consult effectively.

(2)      Unless this Act provides otherwise, the provisions of section 163 of the Labour Relations Act, with the

changes required by context, apply to disclosure of information.

19. Analysis

(1)      A designated employer must collect information and conduct an analysis, as prescribed, of its

employment policies, practices, procedures and the working environment, in order to identify employment barriers which adversely affect people from designated groups.

(2)      An analysis conducted in terms of subsection (1) must include a profile, as prescribed, of the designated

employer's workforce within each occupational level in order to determine the degree of underrepresentation of people from designated groups in various occupational levels in that employer's workforce.

20. Employment equity plan

(1)      A designated employer must prepare and implement an employment equity plan which will achieve

reasonable progress towards employment equity in that employer's workforce.

(2)      An employment equity plan prepared in terms of subsection (1) must state-

(a)      the objectives to be achieved for each year of the plan;

(b)      the affirmative action measures to be implemented as required by section 15 (2);

(c)    where underrepresentation of people from designated groups has been identified by the analysis,

the numerical goals4 to achieve the equitable representation of suitably qualified people from designated groups within each occupational level in the workforce, the timetable

within which this is to be achieved, and the strategies intended to achieve those goals;

(d)       the timetable for each year of the plan for the achievement of goals and objectives other than

numerical goals;

(e)       the duration of the plan, which may not be shorter than one year or longer than five years;

(f)        the procedures that will be used to monitor and evaluate the implementation of the plan and

whether reasonable progress is being made towards implementing employment equity;

(g)       the internal procedures to resolve any dispute about the interpretation or implementation of the

plan;

(h)       the persons in the workforce, including senior managers, responsible for monitoring and

implementing the plan; and

(i)        any other prescribed matter.

(3)       For purposes of this Act, a person may be suitably qualified for a job as a result of any one of, or any

combination of that person's-

(a)     formal qualifications;

(b)     prior learning;

(c)     relevant experience; or

(d)     capacity to acquire, within a reasonable time, the ability to do the job.

(4)        When determining whether a person is suitably qualified for a job, an employer must-

(a)       review all the factors listed in subsection (3); and

(b)       determine whether that person has the ability to do the job in terms of any one of, or any

combination of those factors.

(5)      In making a determination under subsection (4), an employer may not unfairly discriminate against a

person solely on the grounds of that person's lack of relevant experience.

(6)      An employment equity plan may contain any other measures that are consistent with the purposes of

this Act.

(7)      The  Director-General      may  apply  to the  Labour   Court  to impose   a fine   in  accordance     with   Schedule     I,  if  a  designated     employer     fails   to prepare     or   implement     an   employment      equity    plan    in   terms    of   this section.[14]

21. Reports

(1)        A designated employer must submit a report to the Director-General every year, on the first working day of October or on such other date as may be prescribed.[15]

(2)        …[deleted]

(3)      Despite subsection (1), an employer that becomes a designated employer on or after the first working day of April but before the first working day of October, must only submit its first report on the first working day of October in the following year or on such other date contemplated in subsection (1).

(4)        The report referred to in subsection (1) must contain the prescribed information and must be

signed by the chief executive officer of the designated employer.

"(4A)    An   employer     that   is   not   able    to   submit    a   report    to   the Director-General        by   the   first   working     day   of   October     in   terms    of subsection    (1) must  notify  the Director-General      in writing   before   the  last    working   day  of August   in the same  year  giving   reasons   for  its inability   to do  so.

(4B)  The  Director-General      may  apply  to the Labour   Court  to impose   a fine  in  accordance    with  Schedule    1, if an employer-

(a)        fails  to submit   a report   in terms   of  this  section;

(b)        fails  to notify   and  give  reasons   to the  Director-General      in  terms   of subsection    (4A);  or

(c)        has  notified   the  Director-General     in terms  of subsection    (4A)  but  the reasons   are  false  or  invalid.

(5)        … [deleted]

(6)      Every report prepared in terms of this section is a public document.

22. Publication of report

(1)       Every designated employer that is a public company must publish a summary of a report required by

section 21 in that employer's annual financial report.

(2)        When a designated employer within any organ of state has produced a report in terms of section 21, the

Minister responsible for that employer must table that report in Parliament.

23. Successive employment equity plans

Before the end of the term of its current employment equity plan, a designated employer must prepare a subsequent employment equity plan.

24. Designated employer must assign manager

(1)        Every designated employer must-

(a)      assign one or more senior managers to take responsibility for monitoring and implementing an

employment equity plan;

(b)      provide the managers with the authority and means to perform their functions; and

(c)       take reasonable steps to ensure that the managers perform their functions.

(2)     The assignment of responsibility to a manager in terms of subsection (1) does not relieve the designated

employer of any duty imposed by this Act or any other law.

25. Duty to inform

(1)        An employer must display at the workplace where it can be read by employees a notice in the prescribed

form, informing them about the provisions of this Act 6.

(2)        A designated employer must, in each of its workplaces, place in prominent places that are accessible to

all employees-

(a)      the most recent report submitted by that employer to the Director-General;

(b)      any compliance order, arbitration award or order of the Labour Court concerning the provisions of

this Act in relation to that employer; and

(c)     any other document concerning this Act as may be prescribed.

(3)        An employer who has an employment equity plan, must make a copy of the plan available to its

employees for copying and consultation.

26.    Duty to keep records

An employer must establish and, for the prescribed period, maintain records in respect of its workforce, its employment equity plan and any other records relevant to its compliance with this Act.

27.    Income differentials and discrimination[16]

(1)                      Every designated employer, when reporting in terms of section 21 (1), must submit a

statement, as prescribed, to the Employment Conditions of Commission established by section 59 of the Basic Conditions of Employment Act, on the remuneration and benefits received in each occupational

level of that employer's workforce.

(2)      Where disproportionate income differentials, or unfair discrimination by virtue of a difference in terms and conditions of employment contemplated in section 6(4) are reflected in the statement contemplated in subsection

(1), a designated employer must take measures to progressively reduce such differentials subject to guidance as may be given by the Minister as contemplated in subsection (4).

(3)      The measures referred to in subsection (2) may include-

(a)     collective bargaining;

(b)     compliance with sectoral determinations made by the Minister in terms of section 51 of the Basic

Conditions of Employment Act;

(c)     applying the norms and benchmarks set by the Employment Conditions Commission;

(d)     relevant measures contained in skills development legislation;

(4)      The Employment Conditions Commission must research and investigate norms and benchmarks for

proportionate income differentials and advise the Minister on appropriate measures for reducing disproportional differentials.

(5)      The Employment Conditions Commission may not disclose any information pertaining to individual

employees or employers.

(6)      Parties to a collective bargaining process may request the information contained in the statement

contemplated in subsection (1) for the collective bargaining purposes subject to section 16 (4) and (5) of the Labour Relations Act.

 

CHAPTER IV
Commission for employment equity

28.     Establishment of Commission for Employment Equity

The Commission for Employment Equity is hereby established. (Date of commencement 14 May, 1999)

29.     Composition of Commission for Employment Equity

(1)      The Commission consists of a chairperson and eight other members appointed by the Minister to hold

office on a part-time basis.

(2)      The members of the Commission must include-

(a)      two people nominated by those voting members of NEDLAC who represent organised labour;

(b)      two people nominated by those voting members of NEDLAC who represent organised business;

(c)      two people nominated by those voting members of NEDLAC who represent the State; and

(d)     two people nominated by those voting members of NEDLAC who represent the organisations of

community and development interests in the Development Chamber in NEDLAC.

(3)      A party that nominates persons in terms of subsection (2) must have due regard to promoting the

representivity of people from designated groups.

(4)      The Chairperson and each other member of the Commission-

(a)      must have experience and expertise relevant to the functions contemplated in section 30;

(b)      must act impartially when performing any function of the Commission;

(c)      may not engage in any activity that may undermine the integrity of the Commission; and

(d)     must not participate in forming or communicating any advice on any matter in respect of which

they have a direct financial interest or any other conflict of interest.

(5)      The Minister must appoint a member of the Commission to act as chairperson whenever the office of

chairperson is vacant.

(6)      The members of the Commission must choose from among themselves a person to act in the capacity of

chairperson during the temporary absence of the chairperson.

(7)        The Minister may determine-

(a)        the term of office for the chairperson and for each member of the Commission, but no member's

term of office may exceed five years;

(b)        the remuneration and allowances to be paid to members of the Commission with the concurrence

of the Minister of Finance; and

(c)   any other conditions of appointment not provided for in this section.

(8)      The chairperson and members of the Commission may resign by giving at least one month's written

notice to the Minister.

(9)        The Minister may remove the chairperson or a member of the Commission from office for-

(a)    serious misconduct;

(b)    permanent incapacity;

(c)      that person's absence from three consecutive meetings of the Commission without the prior

permission of the chairperson, except on good cause shown; or

(d)   engaging in any activity that may undermine the integrity of the Commission.

(Date of commencement of s. 29: 14 May, 1999)

30. Functions of Commission for Employment Equity

(1)        The Commission advises the Minister on-

(a)      codes of good practice issued by the Minister in terms of section 54;

(b)      regulations made by the Minister in terms of section 55; and

(c)     policy and any other matter concerning this Act.

(2)        In addition to the functions in subsection (1) the Commission may-

(a)      make awards recognising achievements of employers in furthering the purpose of this Act;

(b)      research and report to the Minister on any matter relating to the application of this Act, including

appropriate and well-researched norms and benchmarks for the setting of numerical goals in various sectors; and

(c)      perform any other prescribed function.

(Date of commencement of s. 30: 14 May, 1999)

31. Staff and expenses

Subject to the laws governing the public service, the Minister must provide the Commission with the staff necessary for the performance of its functions.

(Date of commencement 14 May, 1999)

32. Public hearings

In performing its functions, the Commission may-

(a)      call for written representations from members of the public; and

(b)      hold public hearings at which it may permit members of the public to make oral representations.

(Date of commencement of s. 32: 14 May, 1999)

33. Report by Commission for Employment Equity

The Commission must submit an annual report to the Minister.

(Date of commencement 14 May, 1999)

 

CHAPTER V
Monitoring, enforcement and legal proceedings

Part A: Monitoring and Enforcement

 

34. Monitoring by employees and trade union representatives

Any employee or trade union representative may bring an alleged contravention of this Act to the attention of-

(a)    another employee;

(b)    an employer;

(c)    a trade union;

(d)    a workplace forum;

(e)    a labour inspector;

(f)     the Director-General; or

(g)     the Commission.

35. Powers of labour inspectors

A labour inspector acting in terms of this Act has the authority to enter, question and inspect as provided for in sections 65 and 66 of the Basic Conditions of Employment Act.

36. Undertaking to comply

(1)                A labour inspector may request and obtain a written undertaking from a designated employer to comply with paragraph (a), (b), (f), (h), (i) or ( j) within a specified period, if the inspector has reasonable grounds to believe that the employer has failed to-

(a)      consult with employees as required by section 16;

(b)      conduct an analysis as required by section 19;

(c)      …;

(d)     …;

(e)      …;

(f)      publish its report as required by section 22;

(g)     …;

(h)     assign responsibility to one or more senior managers as required by section 24;

(i)      inform its employees as required by section 25; or

(j)      keep records as required by section 26.

(2)                If a designated  employer does not comply with a written undertaking within the period stated in the written undertaking,  the Labour Court may, on application  by the Director-General,  make the undertaking,  or any part of the undertaking,  an order of the Labour Court

37. Compliance order

(1)        A labour inspector may issue a compliance order to a designated employer if that employer has failed to comply with section 16, 17, 19, 22, 24, 25 or 26 of this Act.

(2)        A compliance order issued in terms of subsection (1) must set out-

(a)       the name of the employer, and the workplaces to which the order applies;

(b)       those provisions of Chapter III of this Act which the employer has not complied with and details

of the conduct constituting non-compliance;

(c)       any written undertaking given by the employer in terms of section 36 and any failure by the

employer to comply with the written undertaking;

(d)       any steps that the employer must take and the period within which those steps must be taken;

(e)       the maximum fine, if any, that may be imposed on the employer in terms of Schedule 1 for failing

to comply with the order; and

(f)        any other prescribed information.

(3)   A copy of the compliance order must be served on the employer named in it.

(4)      A designated employer who receives a compliance order served in terms of subsection (3) must display

a copy of that order prominently at a place accessible to the affected employees at each workplace named in it.

(5)   A designated employer must comply with the compliance order within the time period stated in it..

(6)   If a designated employer does not comply with an order within the period stated in it, the Director-General may apply to the Labour Court to make the compliance order an order of the Labour Court.

38. Limitations

A labour inspector may not issue a compliance order in respect of a failure to comply with a provision of Chapter III of this Act if--

(a)      the employer is being reviewed by the Director-General in terms of section 43; or

(b)      the Director-General has referred an employer's failure to comply with a recommendation to the

Labour Court in terms of section 45.

39.  [Deleted]

40.  [Deleted].

41. Register of designated employers

(1)        The Minister must keep a register of designated employers that have submitted the reports required by

section 21.

(2)        The register referred to in subsection (1) is a public document.

42. Assessment of compliance

(1)                In determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General or any person or body applying this Act may, in addition to the factors stated in section 15, take the following into account:

(a)         The extent to which suitably qualified people from and amongst the different designated groups

are equitably represented within each occupational level in that employer's workforce in relation to the demographic profile of the national and regional economically active population;

(b)      reasonable steps taken by a designated employer to train suitably qualified people from designated groups;

(c)      reasonable steps taken by a designated employer to implement its employment equity plan;

(d)   the extent to which the designated employer has made progress in eliminating employment barriers that adversely affect people from designated groups;

(dA) reasonable    steps  taken  by an employer   to appoint   and  promote   suitably qualified    people   from  the  designated    groups;   and

(e)  any other prescribed factor.

(2)                The    Minister,     after    consultation      with    NEDLAC,      may    issue    a regulation    in terms   of section   55  which   must  be  taken   into  account   by  any person    who   is  required    to  determine     whether    a  designated     employer     is implementing     employment     equity   in compliance     with  this  Act.

(3)                Without    limiting    subsection    (1)( a), the  regulation    made   in  terms   of subsection     (2)  may  specify   the  circumstances      under   which an  employer's compliance    should   be determined    with  reference   to the demographic     profile of   either    the   national     economically active    population      or   the   regional economically     active   population.

(4)                In  any  assessment     of  its  compliance     with   this  Act  or  in  any  court proceedings,      a  designated     employer     may  raise   any  reasonable     ground    to justify   its  failure   to comply.

43. Review by Director-General

(1)      The Director-General may conduct a review to determine whether an employer is complying with this

Act.

(2)      In order to conduct the review the Director-General may-

(a)      request an employer to submit to the Director-General a copy of its current analysis or

employment equity plan;

(b)      request an employer to submit to the Director-General any book, record, correspondence,

document or information that could reasonably be relevant to the review of the employer's

compliance with this Act;

(c)        request a meeting with an employer to discuss its employment equity plan, the implementation of

its plan and any matters related to its compliance with this Act; or

(d)        request a meeting with any‑

(i)      employee or trade union consulted in terms of section 16;

(ii)     workplace forum; or

(iii)    other person who may have information relevant to the review.

44. Outcome of Director-General's review

Subsequent to a review in terms of section 43, the Director-General may-

(a)      approve a designated employer's employment equity plan; or

(b)      make a recommendation to an employer, in writing, stating‑

(i)         steps which the employer must take in connection with its employment equity plan or the

implementation of that plan, or in relation to its compliance with any other provision of this Act; and

(ii)        the period within which those steps must be taken; and

(iii)     any other prescribed information.

45. Failure to comply with Director-General's recommendation

(1)      If an employer fails to comply with a request made by the Director-General in terms of section 43 (2) or a recommendation made by the Director-General in terms of section 44 (b), the Director-General may apply to the Labour Court:-

(a)      for an  order directing  the  employer   to  comply  with the request  or recommendation;   or

(b)      if the  employer  fails  to justify the failure to comply with  the  request or recommendation,   to  impose a fine  in  accordance  with  Schedule  1 on the  employer.

(2)      If  an  employer  notifies the  Director-General   in  writing  within the period specified in a request or recommendation  that  it does  not  accept the  request  or  recommendation,   the  Director-General  must institute  proceedings  in  terms of  subsection  (1)  within-

(a)      90  days of  receiving   the employer's  notification,   in  the case of  a request;  or

(b)      180  days of  receiving  the  employer's  notification,   in  the  case of  a  recommendation.

(3)      If the  Director-General   does   not  institute  proceedings   within the relevant  period contemplated   in  subsection  (2),  the  request or  recommendation, as  the  case  may  be,  lapses.

(4)      Any challenge  to  the  validity  of  the  Director-General's    request  or  recommendation   may only be  made in  the  proceedings   contemplated  in subsection  (1).

 

 

PART B: Legal proceedings

46. Conflict of proceedings

(1)        If a dispute has been referred to the CCMA by a party in terms of Chapter II and the issue to which the

dispute relates also forms the subject of a referral to the Labour Court by the Director-General in terms of section 45, the CCMA proceedings must be stayed until the Labour Court makes a decision on the referral by the Director-General.

(2)        If a dispute has been referred to the CCMA by a party in terms of Chapter II against an employer being

reviewed by the Director-General in terms of section 43, there may not be conciliation or adjudication in respect of the dispute until the review has been completed and the employer has been informed of the outcome.

47. Consolidation of proceedings

Disputes concerning contraventions of this Act by the same employer may be consolidated.

48.     Powers of commissioner in arbitration proceedings

(1)                A commissioner of the CCMA may, in any arbitration proceedings in terms of this Act, make any appropriate arbitration award that gives effect to a provision of this Act.

(2)                An  award   made  by  a commissioner     of the  CCMA   hearing   a matter   in terms of section    10(6)( aA)   or (b)  may  include   any  order  referred   to in section   50(2)(  a)  to (c),    read   with   the   changes    required    by  the   context,    but   an  award    of  damages referred      to    in   section     50(2)(b)   may    not   exceed     the    amount     stated     in   the determination      made  by the Minister   in terms  of section   6(3)  of the Basic  Conditions       35 of  Employment     Act.

49.     Jurisdiction of Labour Court

The Labour Court has exclusive jurisdiction to determine any dispute about the interpretation or application of this Act, except where this Act provides otherwise.

50. Powers of Labour Court

(1)        Except where this Act provides otherwise, the Labour Court may make any appropriate order including-

(a)        on application by the Director-General in terms of section 37 (6) or 39 (6) making a compliance

order an order of the Labour Court;

(b)        subject to the provisions of this Act, condoning the late filing of any document with, or the late

referral of any dispute to, the Labour Court;

(c)        directing the CCMA to conduct an investigation to assist the Court and to submit a report to the

Court;

(d)        awarding compensation in any circumstances contemplated in this Act;

(e)        awarding damages in any circumstances contemplated in this Act;

(f)         ordering compliance with any provision of this Act; including a request made by the Director-

General in terms of section 43 (2) or a recommendation made by the Director-General in terms of section 44 (b);

(g)        imposing a fine in accordance with Schedule 1 for a contravention of certain provisions of this

Act;

(h)        reviewing an administrative action in terms of this Act on any grounds that are permissible in law;

(i)         in an appeal under section 40, confirming, varying or setting aside all or part of an order made by

the Director-General in terms of section 39; and

(j)         dealing with any matter necessary or incidental to performing its functions in terms of this Act.

(2)        If the Labour Court decides that an employee has unfairly discriminated against, the Court may make

any appropriate order that is just and equitable in the circumstances, including-

(a)      payment of compensation by the employer to that employee;

(b)      payment of damages by the employer to that employee;

(c)      an order directing the employer to take steps to prevent the same unfair discrimination or a

similar practice occurring in the future in respect of other employees;

(d)     an order directing an employer, other than a designated employer, to comply with Chapter III as

if it were a designated employer;

(e)      an order directing the removal of the employer's name from the register referred to in section 41;

or

(f)      the publication of the Court's order.

(3)        The Labour Court, in making any order, may take into account any delay on the part of the party who

seeks relief in processing a dispute in terms of this Act.

(4)       If the Labour Court declares that the medical testing of an employee as contemplated in section 7 is

justifiable, the court may make any order that it considers appropriate in the circumstances, including imposing conditions relating to-

(a)    the provision of counselling;

(b)    the maintenance of confidentiality;

(c)    the period during which the authorisation for any testing applies; and

(d)    the category or categories of jobs or employees in respect of which the authorisation for testing

applies.

(5)       A fine  payable   in terms   of this  Act  must  be paid  into  the  National Revenue    Fund   referred    to  in section   213  of  the  Constitution.

 

Part C: Protection of employee rights

51. Protection of employee rights

(1)      No person may discriminate against an employee who exercises any right conferred by this Act.

(2)      Without limiting the general protection conferred by subsection (1), no person may threaten to do, or do

any of the following:

(a)          Prevent an employee from exercising any right conferred by this Act or from participating in any

proceedings in terms of this Act; or

(b)          prejudice an employee because of past, present or anticipated‑

(i)      disclosure of information that the employee is lawfully entitled or required to give to

another person;

(ii)     exercise of any right conferred by this Act; or

(iii)    participation in any proceedings in terms of this Act.

(3)        No person may favour, or promise to favour, an employee in exchange for that employee not exercising

any right conferred by this Act or not participating in any proceedings in terms of this Act.

(4)        Nothing in this section precludes the parties to a dispute arising out of an alleged breach of any right

conferred by this Part, from concluding an agreement to settle the dispute.

(5)     For the purposes of this section "employee" includes a former employee or an applicant for employment.

52. Procedure for disputes

(1)      If there is a dispute about the interpretation or application of this Part, any party to the dispute may

refer it in writing to the CCMA.

(2)      The CCMA must attempt to resolve a dispute referred to it in terms of this Part through conciliation.

(3)        If the dispute remains unresolved after conciliation-

(a)       any party to the dispute may refer it to the Labour Court for adjudication; or

(b)       all the parties to the dispute may consent to arbitration of the dispute by the CCMA.

(4)        In respect of a dispute in terms of this Part, the relevant provisions of Part C and D of Chapter VII of the

Labour Relations Act apply, read with the changes required by the context.

(5)        The  Minister    may  in the  code  of good  practice   set  out  factors   that  must  be taken   into  account    by  any  person   assessing    whether    an  employer    complies    with    Chapter    II  or  Chapter III.

 

 

CHAPTER VI
General provisions

53. State contracts

(1)       Every employer that makes an offer to conclude an agreement with any organ of state for the furnishing

of supplies or services to that organ of state or for the hiring or letting of anything-

(a)       must‑

(i)      if it is a designated employer, comply with Chapters II and III of this Act; or

(ii)     if it is not a designated employer, comply with Chapter II of this Act; and

(b)       attach to that offer either‑

(i)      a certificate in terms of subsection (2) which is conclusive evidence that the employer

complies with the relevant Chapters of this Act; or

(ii)     a declaration by the employer that it complies with the relevant Chapters of this Act,

which, when verified by the Director-General, is conclusive evidence of compliance.

(2)         An employer referred to in subsection (1) may request a certificate from the Minister confirming its

compliance with Chapter II, or Chapters II and III, as the case may be.

(3)      A certificate issued in terms of subsection (2) is valid for 12 months from the date of issue or until the

next date on which the employer is obliged to submit a report in terms of section 21, whichever period is the longer.

(4)      A failure to comply with the relevant provisions of this Act is sufficient ground for rejection of any offer

to conclude an agreement referred to in subsection (1) or for cancellation of the agreement7.

54. Codes of good practice

(1) The Minister may, on the advice of the Commission-

(a)      issue any code of good practice8; and

(b)      change or replace any code of good practice.

(2) Any code of good practice, or any change to, or replacement of, a code of good practice must be published in the Gazette.

55. Regulations

(1)       The Minister may, by notice in the Gazette and on the advice of the Commission, make any regulation

regarding-

(a)      any matter that this Act requires or permits to be prescribed; and

(b)      any administrative or procedural matters that may be necessary or expedient to achieve the

proper and effective administration of this Act.

(2)        The Minister may by notice in the Gazette make a regulation providing for separate and simplified forms

and procedures in respect of the obligations created by sections 19, 20, 21, 25 and 26 for employers that employ fewer than 150 employees.

56. Delegations

(1)     The Minister may delegate any power conferred, or assign any duty imposed, upon the Minister in terms

of this Act, except the powers and duties contemplated in sections 29 (1), (5) and (7), 54, 55, 59 (4) and 61 (4).

(2)      A delegation or assignment must be in writing and may be subject to any conditions or restrictions

determined by the Minister.

(3)      The Minister may at any time-

(a)      withdraw a delegation or assignment made in terms of subsection (1); and

(b)      withdraw or amend any decision made by a person exercising a power or performing a duty

delegated or assigned in terms of subsection (1).

(4)        The Director-General may delegate any power conferred, or assign any duty imposed, upon the Director-

General in terms of this Act, to any employee in the Department.

(5)        Subsections (2) and (3) apply with the changes required by the context to any delegation or assignment

by the Director-General under subsection (4).

57. Temporary employment services

(1)          For purposes of Chapter III of this Act, a person whose services have been procured for, or provided to,

a client by a temporary employment service is deemed to be the employee of that client, where that person's employment with the client is of indefinite duration or for a period of three months or longer.

(2)        Where a temporary employment service, on the express or implied instructions of a client, commits an

act of unfair discrimination, both the temporary employment service and the client are jointly and severally liable.

58. Designation of organs of state

The President must, within six months after the commencement of this Act, and after consultation with the Minister responsible for the Public Service and Administration, publish a notice in the Gazette listing every designated employer within any organ of state.

59. Breach of confidentiality

(1)        Any person who discloses any confidential information acquired in the performance of a function in terms

of this Act, commits an offence.

(2)        Subsection (1) does not apply if the information-

(a)      is disclosed to enable a person to perform a function in terms of this Act; or

(b)      must be disclosed in terms of this Act, any other law or an order of court.

(3)        A person convicted of an offence in terms of this section may be sentenced to a fine not exceeding R30 000,00.

(4)        The Minister may by notice in the Gazette, amend the maximum amount of the fine referred to in subsection (3) in order to counter the effect of inflation.

60. Liability of employers

(1)      If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any

conduct that, if engaged in by that employee's employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer.

(2)      The employer must consult all relevant parties and must take the necessary steps to eliminate the

alleged conduct and comply with the provisions of this Act.

(3)      If the employer fails to take the necessary steps referred to in subsection (2), and it is proved that the

employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision.

(4)          Despite subsection (3), an employer is not liable for the conduct of an employee if that employer is able

to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.

61. Obstruction, undue influence and fraud

(1)        No person may-

(a)          obstruct or attempt to improperly influence any person who is exercising a power or performing a

function in terms of this Act; or

(b)          knowingly give false information in any document or information provided to the Director-General

or a labour inspector in terms of this Act.

(2)     No employer may knowingly take any measure to avoid becoming a designated employer.

(3)        A person who contravenes a provision of this section commits an offence and may be sentenced to a fine

not exceeding R30 000,00.

(4)    The Minister may by notice in the Gazette, amend the maximum amount of the fine referred to in subsection (3) in order to counter the effect of inflation.

62.    This Act binds the State

This Act binds the State.

63.    Application of Act when in conflict with other laws

If any conflict relating to a matter dealt with in this Act arises between this Act and the provisions of any other law other than the Constitution or an Act of Parliament expressly amending this Act, the provisions of this Act prevail.

64.    Repeal of laws and transitional arrangements

Each of the laws referred to in the first two columns of Schedule 2 is repealed to the extent specified opposite that law in the third column of that Schedule.

64A          Amendment   of  annual  turnover  thresholds  in  Schedule 4

The   Minister    may,   after   consultation      with   the   Commission,      by notice    in   the   Gazette,   amend    the   total    annual    turnover     thresholds      in   Schedule    4 in order   to  counter   the  effect  of  inflation.

65.    Short title and commencement

(1)      This Act is called the Employment Equity Act, 1998.

(2)      This Act takes effect on a date to be determined by the President by proclamation in the Gazette. The

President may determine different dates in respect of different provisions of this Act.

(3)        If, in terms of subsection (2), different dates are determined for particular provisions of this Act-

(a)       Schedule 2 must take effect at the same time as section 6 (1) takes effect; and

(b)       a reference in a provision of this Act to a time when this Act took effect must be construed as a

reference to the time when that provision takes effect.

SCHEDULE 1

Maximum permissible fines that may be imposed for contravening this Act

 

This Schedule sets out the maximum fine that may be imposed in terms of this Act for the contravention of certain provisions of this Act.

 

Previous Contravention

Contravention of any Provision of sections 16 read with 17, 19, 22, 24, 25, 26 and 43(2)

Contravention of any Provision of sections 20, 21,23 and 44(b)

No previous contravention

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

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

R2 100 000

The greater of R2 100 000 or 6% of the employer’s turnover

Three previous contraventions in respect of the same provision within three years

R2 400 000

The greater of R2 400 000 or 8% of the employer’s turnover

Four previous contraventions in respect of the same provision within three years

R2 700 00

The greater of R2 700 000 or 10% of the employer’s turnover

 

SCHEDULE 2

Laws repealed

 

Number and year of law

Short title

Extent of repeal

Act No. 66 of 1995

Labour Relations Act, 1995

Item 2 (1) (a), 2 (2) and 3 (4) (a) of Schedule 7

 

SCHEDULE 3

Transitional arrangements

1.    Definitions

In this Schedule, unless the context indicates otherwise-

"pending" means existing immediately before this Act came into operation; and

"repealed provisions of the Labour Relations Act" means the provisions of the Labour Relations Act repealed by Schedule 2.

2.    Disputes arising before commencement of this Act

Any dispute contemplated in item (2) (1) (a) of Schedule 7 of the Labour Relations Act that arose before the commencement of this Act, must be dealt with as if the repealed provisions of the Labour Relations Act had not been repealed.

3.          Courts

(1)      In any pending dispute contemplated in item (2) (1) (a) of Schedule 7 of the Labour Relations Act in

respect of which the Labour Court or the Labour Appeal Court had jurisdiction and in respect of which proceedings had not been instituted before the commencement of this Act, proceedings must be instituted in the Labour Court or Labour Appeal Court (as the case may be) and dealt with as if the repealed provisions of the Labour Relations Act had not been repealed.

(2)      Any dispute contemplated in item (2) (1) (a) of Schedule 7 of the Labour Relations Act in respect of

which proceedings were pending in the Labour Court or Labour Appeal Court must be proceeded with as if the repealed provisions of the Labour Relations Act had not been repealed.

(3)      Any pending appeal before the Labour Appeal Court must be dealt with by the Labour Appeal Court as if

the repealed provisions of the Labour Relations Act had not been repealed.

(4)      When acting in terms of subitems (1) to (3), the Labour Court or Labour Appeal Court may perform or

exercise any function or power that it had in terms of the repealed provisions of the Labour Relations Act.

 

SCHEDULE 4

Turnover threshold applicable to designated employers

 

Sector or subsectors in accordance with the Standard Industrial Classification

Total annual turnover

Agriculture

R6,00 m

Mining and Quarrying

R22,50 m

Manufacturing

R30,00 m

Electricity, Gas and Water

R30,00 m

Construction

R15,00 m

Retail and Motor Trade and Repair Services

R45,00 m

Wholesale Trade, Commercial Agents and Allied Services

R75,00 m

Catering, Accommodation and other Trade

R15,00 m

Transport, Storage and Communications

R30,00 m

Finance and Business Services

R30,00 m

Community, Special and Personal Services

R15,00 m

 



[1] As amended by Act 47 of 2013

[2] As amended by Act 47 of 2013

[3] As amended by Act 47 of 2013

[4] Act 47 of 2013

[5] Act 47 of 2013

[6] Act 47 of 2013

[7] Act 47 of 2013

[8] Act 47 of 2013

[9] Act 47 of 2013

[10] Act 47 of 2013

[11] Act 47 of 2013

[12] Act 47 of 2013

[13] Act 47 of 2013

[14] Act 47 of 2013

[15] Act 47 of 2013

[16] Act 47 of 2013