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REPUBLIC OF SOUTH AFRICA. Employment Equity Act, 1998

 

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REPUBLIC OF SOUTH AFRICA

Employment Equity Act, 1998.


BE IT ENACTED by the Parliament of the Republic of South Africa as follows:-

ARRANGEMENT OF ACT

CHAPTER I - DEFINITIONS, PURPOSE, INTERPRETATION AND APPLICATION

CHAPTER II - PROHIBITION OF UNFAIR DISCRIMINATION

CHAPTER III - AFFIRMATIVE ACTION

CHAPTER IV - COMMISSION FOR EMPLOYMENT EQUITY

CHAPTER V - MONITORING, ENFORCEMENT AND LEGAL PROCEEDINGS

Part A

Monitoring

Enforcement

Part B

Legal proceedings

Part C

Protection of employee rights

CHAPTER VI - GENERAL PROVISIONS

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SCHEDULE 2 - Laws repealed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 I

DEFINITIONS, PURPOSE, INTERPRETATION AND APPLICATION

Definitions

1. In this Act. unless the context otherwise indicates-

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

"black people" is a generic term which means Africans. Coloureds and Indians; 35 "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-

"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-

"designated groups" means black people, women and people with disabilities;

"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-

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

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

"family responsibility" means the responsibility of employees in relation to their spouse or partner, their dependent 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 65 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;

"NLDLAC" 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-

"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 denned 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-

"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 to Chapter V of the Labour Relations Act.

Purpose of this Act

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

Interpretation of this Act

3. This Act must be interpreted-

Application of this Act

4. (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 Service*.

* These persons are not denned us "employees" under the Labour Relalions Act. However, they could bring unfair discrimination matters before the Constitutional Court, or lodge complaints with the Human Rights Commission.

CHAPTER II

PROHIBITION OF UNFAIR DISCRIMINATION

Elimination of unfair discrimination

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

Prohibition of unfair discrimination

6. (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 and birth.

(2) It is not unfair discrimination to-

(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).

Medical testing

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

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

Psychological testing and other similar assessments

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

Applicants

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

Disputes concerning this Chapter

10. (1) In this section, the word "dispute" excludes a dispute about an unfair dismissal, which must he 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-

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

(6) If the dispute remains unresolved after conciliation-

(7) The relevant provisions of Parts C and D of Chapter Vll of the Labour Relations Act. with the changes required by context, apply in respect of a dispute in terms of this Chapter.

Burden of proof

11. Whenever unfair discrimination* is alleged in terms of this Act, the employer against whom the allegation is made must establish that it is fair.

* Section 6(1) lists the following is prohibited grounds of discrimination:

"race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation age, disability, religion, H1V status, conscience, belief, political opinion, culture, language and birth".

CHAPTER III

AFFIRMATIVE ACTION

Application of this Chapter

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

Duties of designated employers

13. (1) Every designated employer must, in order to achieve employment equity. implement affirmative action measures tor people from designated groups in terms of this Act.

(2) A designated employer must-

Voluntary compliance with this Chapter

14. 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.

Affirmative action measures

15. (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 categories and levels in the workforce of a designated employer.

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

(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.

Consultation with employees

16. (1) A designated employer must take reasonable steps to consult and attempt to reach agreement on the matters referred to in section 17-

(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-

(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.

Matters for consultation

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

Disclosure of information

18. (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 16* of the Labour Relations Act. with the changes required by context, apply to disclosure of information.

* Section 16 of the Labour Relations Act contains detailed provisions about disclosure of information, and disputes concerning disclosure. Regulations concerning the conduct of an analysis may. under section 55. read with section 19. be made. However, the employment policies and practices denned in section I are an indication of the potential areas of both direct and indirect discrimination that should be subject to analysis.

Analysis

19. (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 (I) must include a profile, as prescribed, of the designated employer's workforce within each occupational category and level in order to determine the degree of underrepresentalion of people from designated groups in various occupational categories and levels in that employer's workforce.

Employment equity plan

20. (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 slate-

* Guidelines regarding the factors to be taken into account in determining numerical goals will he included in a Code of Good Practice- However, the factors listed in section 42(a) (Assessment of compliance) are relevant to selling numerical goals in each organisation.

(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-

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

(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.

Report*

* The first report will refer to the initial development of and consultation around an employment equity plan. The subsequent reports will detail the progress made in implementing the employment equity plan.

21. (1) A designated employer that employs fewer than 150 employees must-

(2) A designated employer that employs 150 or more employees must-

(3) Despite subsections (I) and (2), a designated employer that submits its first report in the 12-month period preceding the first working day of October, should only submit its second report on the first working day of October in the following year.

(4) The reports referred to in subsections (1) and (2) must contain the prescribed information and must be signed by the chief executive officer of the designated employer.

(5) An employer who becomes a designated employer in terms of this Act must-

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

Publication of report

22. (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.

Successive employment equity plans

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

Designated employer must assign manager

24. (1) Every designated employer must-

(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.

Duty to inform

25. (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*.

* Regulations may. under section 55, be made containing a standard notice, in all official languages, summarising the provisions of this Act, which all employers should display in every workplace.

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

(3) An employer who has an employment equity plan, must make a copy of the plan available to its employees for copying and consultation.

Duty to keep records

26. 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.

Income differentials

27. (1) Every designated employer, when reporting in terms of section 21(1) and (2), must submit a statement, as prescribed, to the Employment Conditions Commission established by section 59 of the Basic Conditions of Employment Act, on the remuneration and benefits received in each occupational category and level of that employer's workforce.

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

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

(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 collective bargaining purposes subject to section 16(4) and (5) of the Labour Relations Act.

CHAPTER IV

COMMISSION FOR EMPLOYMENT EQUITY

Establishment of Commission for Employment Equity

28. The Commission for Employment Equity is hereby established.

Composition of Commission for Employment Equity

29. (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-

(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-

(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-

(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-

Functions of Commission for Employment Equity

30. (1) The Commission advises the Minister on-

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

Staff and expenses

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

Public hearings

32. In performing its functions, the Commission may-

Report by Commission for Employment Equity

33. The Commission must submit an annual report to the Minister.

CHAPTER V

MONITORING, ENFORCEMENT AND LEGAL PROCEEDINGS

Part A

Monitoring

Monitoring by employees and trade union representatives

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

Enforcement

Powers of labour inspectors

35. 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.

Undertaking to comply

36. A labour inspector must request and obtain a written undertaking from a designated employer to comply with paragraphs (a) to (j) within a specified period, if the inspector has reasonable grounds to believe that the employer has failed to-

Compliance order

37. (1) A labour inspector may issue a compliance order to a designated employer if that employer has-

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

(3) A labour inspector who issues a compliance order must serve a copy of that order 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, unless the employer objects to that order in terms of section 39.

(6) If a designated employer does not comply with an order within the period stated in it, or does not object to that order in terms of section 39, the Director-General may apply to the Labour Court to make the compliance order an order of the Labour Court.

Limitations

38. 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-

Objections against compliance order

39. (1) A designated employer may object to a compliance order by making written representations to the Director-General within 21 days after receiving that order.

(2) If the employer shows good cause at any time, the Director-General may permit the employer to object after the period of 21 days has expired.

(3) After considering the designated employer's representations and any other relevant information, the Director-General-

(4) The Director-General must, after making a decision in terms of subsection (3), and within 60 days after receiving the employer's representations, serve a copy of that decision on that employer.

(5) A designated employer who receives an order of the Director-General must either-

(6) If a designated employer does not comply with an order of the Director-General, or does not appeal against that order, the Director-General may apply to the Labour Court for that order to be made an order of the Labour Court.

Appeal from compliance order

40. (1) A designated employer may appeal to the Labour Court against a compliance order of the Director-General within 21 days after receiving that order.

(2) The Labour Court may at any time permit the employer to appeal after the 21 -day time limit has expired, if that employer shows good cause for failing to appeal within that lime limit.

(3) If the designated employer has appealed against an order of the Director-General, that order is suspended until the final determination of- (a) the appeal by the Labour Court: or (b) any appeal against the decision of the Iabour Court in that matter.

Register of designated employers

41. (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.

Assessment of compliance

42. 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 must, in addition to the factors stated in section 15, take into account all of the following:

Review by Director-General

43. (I) 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.
  • Outcome of Director-General's review

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

    Failure to comply with Director-General's recommendation

    45. 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 refer the employer's non-compliance to the Labour Court.

    Part B

    Legal proceedings

    Conflict of proceedings

    46. (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.

    Consolidation of proceedings

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

    Powers of commissioner in arbitration proceedings

    48. 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.

    Jurisdiction of Labour Court

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

    Powers of Labour Court

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

    (2) If the Labour Court decides that an employee has been 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: and
  • (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-

    Part C

    Protection of employee rights

    Protection of employee rights

    51. (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.

    Procedure for disputes

    52. (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-

    (4) In respect of a dispute in terms of this Pan. 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.

    CHAPTER VI - GENERAL PROVISIONS

    State contracts

    53. (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-

    (2) An employer referred to in subsection (1) may request a certifcate from the Minister confirming its compliance with Chapter 11, or Chapters II and 111, 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 agreement*.

    * Regulations under section 13 of the Slate Tender Board Act. Nu. 86 of 1986, may provide that supplies and services shall not be procured for and on behalf of the State, unless an employer has attached to its otter a certincate in terms of section 53( I )(b)(i) or a declaration in terms of section 53(l)(b)(ii) of the Employment Equity Act.

    Codes of good practice

    54. (1 The Minister may, on the advice of the Commission-

    * This is an enabling Act. The codes of good practice are intended to provide employers with information that may assist them in implementing this Act. particularly Chapter III. Issues that are likely to be the subject of codes include the following-

    - the preparation of employment equity plans:

    - advertising, recruitment procedures and selection criteria;

    - special measures to be taken in relation to persons with disabilities including benefit schemes;

    - special measures to be taken in relation to persons with family responsibilities;

    - sexual harassment and racial harassment;

    -internal procedures to resolve disputes about the interpretation or application of this Act; and sector-specific issues;

    - guidelines lor employees on the prioritisatlon of certain designated groups.

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

    Regulations

    55. (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 must 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 150 or fewer employees.

    Delegations

    56. (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), 53(2), 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-

    (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).

    Temporary employment services

    57. (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.

    Designation of organs of state

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

    Breach of confidentiality

    59. (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-

    (3) A person convicted of an offence in terms of this section may be sentenced to a fine not exceeding R 10 000,00.

    (4) The Minister may, with the concurrence of the Minister of Justice and 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.

    Liability of employers

    60. (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.

    Obstruction, undue influence and fraud

    61. (1) No person may-

    (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 RIO 000,00.

    (4) The Minister may, with the concurrence of the Minister of Justice and 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.

    This Act binds State

    62. This Act binds the State.

    Application of Act when in conflict with other laws

    63. 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.

    Repeal of laws and transitional arrangements

    64. 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.

    Short title and commencement

    65. (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 I6, 19, 20, 21, 22 AND 23
    No previous contravention

    R500 000

    A previous contravention in respect of the same provision

    R600 000

    A previous contravention within the previous 12 months or two previous contraventions in respect of the same provision within three years

    R700 000

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

    R800 000

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

    R900 000

    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 Definitions

    1. 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.

    Disputes arising before commencement of this Act

    2. 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 he dealt with as if the repealed provisions of the Labour Relations Act had not been repealed.

    Courts

    3. (1) In any pending dispute contemplated in item (2)(l)(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

    R2,00 m

    Mining and Quarrying

    R7,50 m

    Manufacturing

    R10,00 m

    Electricity, Gas and Water

    R10,00 m

    Construction

    R5,00 m

    Retail and Motor Trade and Repair Services

    R15,00 m

    Wholesale Trade, Commercial Agents and Allied Services

    R25,00 m

    Catering, Accommodation and other Trade

    R5,00 m

    Transport, Storage and Communications

    R10,00 m

    Finance and Business Services

    R10,00 m

    Community, Social and Personal Services

    R5,00 m



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