Employment Equity Act and its compliance.

Why EE Act?

South Africa is one of the most culturally, racially and economically diverse countries globally. In order to ensure that everyone has equal opportunity and fair treatment in the workplace, the Employment Equity Act, No 55 of 1998 was enacted into law.

What is the Employment Equity Act?

The Employment Equity Act is a law that promotes equity in the workplace, ensures that all employees receive equal opportunities and treated fairly by their employers.

The law protects employees from unfair treatment and any form of discrimination. The law states that your employer can't discriminate against you directly or indirectly.

It aims to redress injustices of the past by implementing affirmative action measures. According to the legislation, it isn't unfair discrimination to promote affirmative action consistent with the Act or to prefer or exclude any person on the basis of an inherent job requirement.

The purpose of the Act

The purpose of the act is to achieve equity in the workplace, by

·      Promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination.

·      Implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups (A designated group means black people, women, or people with disabilities) to ensure their equitable representation in all occupational categories and levels in the workforce.

The act applies to all employees and employers, except to the South African National Defence Force, National Intelligence Agency, and South African Secret Services.

The act also protects employees from unfair medical testing and evaluation, it states:

·      Medical testing of an employee is permissible only when legislation requires testing or when this is justifiable for various reasons.

·      HIV testing is prohibited unless such testing is determined to be justifiable by the Labour Court.

·      Psychological testing and similar assessments are prohibited, unless the test is scientifically valid and reliable, can be applied fairly to all employees, and isn't biased against any employee or group.

Application of the Act

According to the legislation the act applies to:

·      Chapter II (sections 5 – 11) all employers and employees.

·      Chapter III (sections 12 – 27) applies to designated employers.

·      A designated employer means an employer who employs 50 or more employees or has a total annual turnover as reflected in Schedule 4 of the Act, municipalities and organs of state. Employers can also volunteer to become designated employers.

·      A designated group means black people, women, or people with disabilities.

·      The South African National Defence Force, National Intelligence Agency, and South African Secret Services are excluded from this Act.

What's the responsibility of the employer to ensure that the EEA is being implemented? 

A designated employer must prepare and implement a plan to achieve employment equity, which must:

·      have objectives for each year of the plan,

·      include affirmative action measures,

·      have numerical goals for achieving equitable representation,

·      have a timetable for each year,

·      have internal monitoring and evaluation procedures, including internal dispute resolution mechanisms, and

·      identify persons, including senior managers, to monitor and implement the plan.

Its affect on the BBBEE Act

Employment Equity relates to BBBEE in that it is included in the Management Control component of the BBBEE Scorecard for measuring the BBBEE compliance of a business in terms of the BBBEE Codes of Good Practice. BBBEE thus incorporates Employment Equity as part of the Management Control component of the BBBEE scorecard for measuring how prescribed Employment Equity criteria for the employment of Black people in senior, middle and junior management positions are met, with points being awarded or lost based on levels of compliance.

Although BBBEE verification agencies often require businesses to show that they have complied with the EEA (if applicable) before awarding points under the Management Control element of the BBBEE scorecard, businesses that comply with BBBEE legislation do not automatically comply with the EEA and vice versa. Under the BBBEE Scorecard you can lose points for non-compliance but under the EAA non-compliance can result in stringent penalties.

Compliance with BBBEE and Employment Equity legislation is a complex and resource intensive exercise for businesses. Government is also prioritizing stricter enforcement of BBBEE and Employment Equity legislation and are imposing larger penalties for non-compliance. All of this implies that businesses should pay attention to their compliance with both the BBBEE Act and the EEA and not just assume that they are either not applicable, or that compliance with one equals compliance with the other. These are inter-related but still separate pieces of legislation with differing objectives and requirements for compliance and the assistance of a BBBEE or legal expert should be obtained to assist you to be fully compliant.

How can we help?

Business Lab a proud member of Timmal Holdings has for the past 17 years been assisting organisations national ensure their compliance with various pieces of legislation. Allow us to do the same for your organisation. To find out more on how we can assist you contact our team on 0100300080 press option 1, or drop me an email on [email protected] with the heading “ EEA 2019.”

“Do today what others won’t, so tomorrow you can do what others can’t.”

Regards

Kamal P. Timmal