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EMPLOYMENT EQUITY AMENDMENT BILL

General Explanatory Note. Substitute and insert certain definitionsProhibit difference in the terms and conditions of employees performing the same work or work of equal valueProvide for the certification of psychometric testingProvide for the referral of certain disputes to the CCMA. General Ex

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EMPLOYMENT EQUITY AMENDMENT BILL

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    1. EMPLOYMENT EQUITY AMENDMENT BILL Hedda Schensema

    2. General Explanatory Note Substitute and insert certain definitions Prohibit difference in the terms and conditions of employees performing the same work or work of equal value Provide for the certification of psychometric testing Provide for the referral of certain disputes to the CCMA

    3. General Explanatory Note To empower the Director-General to impose fines To provide for connected matters

    4. DEFINITIONS Substitution of subsection (d) in definition of who is a designated employer. Current subsection: an organ of state as defined in section 239 of the Constitution, but excluding local spheres of government, the National Defence Force, the National Intelligence Agency and the South African Secret Service;

    5. DEFINITIONS Proposed amendment: 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. Local spheres of government included as a designated employer.

    6. DEFINITIONS Addition to definition of designated groups. Current definition: 'designated groups' means black people, women and people with disabilities. Amendment: adds that must be citizens by birth or descent or who became citizens by naturalisation before April 1994 or after April but would have been entitled to acquire citizenship but for Apartheid policies.

    7. DEFINITIONS Insertion of definition of independent contractor: a person who works for or supplies services to a client or customer as part of the persons business, undertaking or professional practice.

    8. DEFINITIONS Insertion of the definition of turnover The total annual turnover of an employer for the preceding year calculated in accordance with the provisions of the Competition Act, 1998

    9. SECTION 6 Section 6 deals with the prohibition of unfair discrimination. Insertion : Different terms and conditions for the same or substantially the same work , or work of equal value is introduced as a form of unfair discrimination; Minister may issue a code of good practice setting criteria and methodology for assessing work of equal value.

    10. SECTION 8 Psychometric testing Additional requirement added to make testing valid. Test must be certified by the Health Professions Council of South Africa.

    11. SECTION 10 Section 10 : Disputes concerning discrimination Section 10 amendment permits employees earning under the threshold prescribed by the BCEA, to refer a dispute concerning unfair discrimination to the CCMA for arbitration

    12. SECTION 11 Deals with the burden of proof in a unfair discrimination allegation. Currently : Whenever unfair discrimination (discrimination based on any ground listed in section 6(1)) is alleged, the employer against whom the allegation is made must establish that it is fair.

    13. SECTION 11 Amendment: (1) If the employee makes out a prima facie case of unfair discrimination, the respondent must prove that- (a) the discrimination did not take place as alleged; or (b) the conduct is not based on one or more of the prohibited grounds listed in section 6(1).

    14. SECTION 11 (2) Discrimination is unfair, unless the respondent proves that the discrimination is fair, if the discrimination did take place- (a) on a prohibited ground listed in section 6(1); (b) on a ground not listed in section 6(1), and the discrimination- (i) causes or perpetuates systematic disadvantage in the workplace; (ii) undermines human dignity; or (iii) adversely affects the equal enjoyment of a person's right and freedom in a manner that is comparable to discrimination on a ground listed in section 6(1).

    15. SECTION 11 (3) For the purposes of this section, a respondent includes an employer of the employee or any other person contemplated in section 6(1).

    16. SECTION 20 Section deals with the employment equity plan. Amendment introduces fine for designated employer who fails to prepare and implement employment equity plan. Fines are determined by schedule 1. Proposed repeal of schedule 1 so that fines would be based on turn over and whether the infringer has previously contravened the section.

    17. SECTION 21 Employment equity report. Amendment removes distinction between designated employers with fewer than 150 employees and those with more than 150 employees for the purposes of reporting. All designated employers will now have to submit a report once every year.

    18. SECTION 21 New requirement that an employer who is unable to submit a report by first day of October must notify the director general by 31 August with reasons for the inability to submit. Failure to do so or submission of false or invalid reasons will result in a fine.

    19. SECTION 27 Heading of section to change to Income differentials and discrimination. Amendment requires that employers whose reports reflect unfair discrimination in respect of equal pay for work of equal value must take measures to progressively reduce such discrimination subject to guidance from the Minister.

    20. SECTION 36 AND 37 Repealed. Dealt with a labour inspector obtaining a undertaking to comply and the grounds for which the labour inspector could require an undertaking. These ground have been inserted in section 37. Section 37 empowers a inspector to issue a compliance order.

    21. Section 39 and 40 Both repealed. 39 permitted objections against compliance order 40 permitted appeal from compliance order.

    22. SECTION 42 In determining whether employer is implementing employment equity in compliance with the Act. The following factors will no longer be considered: pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees; economic and financial factors relevant to the sector in which the employer operates; present and anticipated economic and financial circumstances of the employer progress made in implementing employment equity by other designated employers operating under comparable circumstances and within the same sector

    23. SECTION 42 The following insertions will be considered: Reasonable steps taken by an employer to train suitably qualified people from designated groups. Reasonable steps taken by an employer to appoint and promote suitably qualified people from the designated groups.

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