On 25 July 2014 the President proclaimed 1 August 2014 as the effective date for the implementation of the Employment Equity Amendment (EEA) Act.

The Amendment Act introduces a number of significant amendments to the Employment Equity Act 55 of 1998, the most notable of which include:

1. An amendment to the definition of who constitutes a designated employee for the purposes of the EEA which, for example, is now limited to citizens of South Africa by birth or descent.
2. The further regulation of the prohibition of unfair discrimination against employees, in particular the introduction of a new and very wide ground of discrimination, namely "any other arbitrary ground".
3.  In terms of the amendments it will constitute unfair discrimination to remunerate employees who provide work of the same or ‘substantially the same’ or ‘equal value’ differently.
4. The prohibition of psychological and similar testing, unless certified by the Health Professions Council.
5. Granting the CCMA jurisdiction to arbitrate a dispute regarding unfair discrimination on the grounds of sexual harassment and any other dispute if the employee earns below the threshold of section 6(3) of the BCEA, which is currently R205 433.30 per annum.
6. When the alleged discrimination occurs on an ‘arbitrary’ ground, the employee bears the onus that the conduct is irrational, and amounts to unfair discrimination.
7. The Director General may now proceed directly to the Labour Court to impose a fine on recalcitrant employers who have failed to prepare or implement their Employment Equity Plans without the option of first obtaining a written undertaking to comply or issuing a compliance order.
8. The deletion of the distinction between large and small employers when submitting annual reports in terms of the Employment Equity Plan. All designated employers must now submit a report annually.If the employer fails to submit or the Director General can apply to the Labour Court to impose a fine on the employer
9. By granting Labour inspectors the choice of either securing a written undertaking or issuing a compliance order when employers fail to consult, conduct an analysis, publish a summary of its report, assign responsibility to a senior manager, inform its employees of the EEA or fail to maintain records before submitting any Plan and/or report.  Should the employer fail to comply with its undertaking or the compliance order the Labour inspector may apply to the Labour court to have the undertaking or compliance order an order of court.
10. A change in the various factors that need to be taken into consideration when the Director General determines whether a designated employer is implementing employment equity in compliance with the EEA.
11. The imposition of increased fines and an increase to the annual thresholds applicable to employers.

Clients are welcome to contact Shepstone & Wylie's employment law department to discuss the amendments in further detail.

Jacqui Woodroffe, Associate

Contact: 031 575 7520 or jwoodroffe@wylie.co.za