Affirmative Action South African labour law

1 affirmative action

1.1 designated employers
1.2 employment-equity plans
1.3 enforcement

1.3.1 self-regulation
1.3.2 administrative procedures
1.3.3 court action
1.3.4 state contracts

affirmative action

alongside prohibition against unfair discrimination, affirmative action second cornerstone of eea.

according section 2(b) of eea, goal of affirmative action ensure equitable representation of groups in occupational categories , levels in workplace.

equitable representation not defined in eea, section 42 states may determined consideration of

the demographic profile of economically active population, nationally , regionally;
the pool of suitably qualified people in designated groups employer may reasonably expected promote or appoint employees; and
the economic , financial factors relevant sector in employer operates.

affirmative action is, nature, temporary measure. once goal of equality in workplace has been achieved, reason measure fall away.

a potential beneficiary of affirmative action must meet 2 requirements:

there are, in regard, 4 key definitions in eea:

employees 1 of designated groups may approach labour court, citing unfair discrimination, enforce lack of affirmative action. labour court has held, however, there no individual right affirmative action, collective in nature.

designated employers

the prohibition of unfair discrimination applies employers, regardless of size, affirmative-action provisions of eea apply designated employers.

a designated employer defined follows:

an employer employs fifty or more employees; or
an employer employs fewer fifty employees annual turnover in given year exceeds level, employer in agriculture total annual turnover of r2,000,000;
municipalities;
organs of state; or
an employer appointed designated employer in terms of collective agreement.

employers not fall within ambit of definition may still voluntarily indicate intend comply act.

employment-equity plans

the employment-equity plan centrepiece of procedure implementing affirmative action in workplace.

a designated employer has consult workforce on

the conduct of analysis of employment policies, practices , procedures, working environment;
the preparation , implementation of employment-equity plan, achieve reasonable progress towards employment equity in workforce; and
the submission of reports department of labour.

the analysis described above must contain profile of employer s workforce. using profile, employer must determine degree of under-representation of people designated groups in various categories , levels.

the employment-equity plan must include

annual objectives;
the affirmative-action measures have implemented;
annual timetables achievement of goals;
the duration of plan; and
internal procedures resolve disputes interpretation or implementation of plan.

if there under-representation of people designated groups, plan must outline

the numerical goals achieved;
the timetable within these goals have achieved; and
the strategies achieve such goals.

a copy of plan must made available employees. designated employer must assign 1 or more senior manager responsibility , authority , means monitor , implement plan.

designated employers must submit reports department of labour:

if fewer 150 employees employed, report must made every 2 years.
if more 150 employees employed, report must made every year.

designated employers required submit statement employment conditions commission remuneration , benefits received employees in each occupational category , level. if statement reflects disproportionate income differentials, employer must take steps progressively reduce such differentials.

enforcement

the eea provides 4 ways in compliance affirmative-action provisions may ensured:

self-regulation

employment equity plans must include dispute-resolution procedures. employers , employees must use these procedures first.

administrative procedures

a labour inspector, reasonable grounds believing employer not complying eea, may try obtain written undertaking employer comply. if refuses, inspector may issue compliance order, employer may object within 21 days.

court action

the labour court has power

to make compliance order order of court;
to direct commission conciliation, mediation , arbitration conduct investigation assist court;
to order compliance provision of eea;
to hear appeals against compliance orders imposed director-general; and
to impose fines on employers if fail comply eea.

state contracts

designated employers wish enter commercial contracts organs of state must comply eea. must attach offer either

a certificate of compliance issued minister of labour; or
a statement comply.

if these requirements not met, organ of state may reject offer; may constitute grounds cancellation of contract has been concluded.