LEGAL SNIPPETS: The Employment Equity Bill vs the Affirmative Action Act (a contribution by Carmen Diehl)

General approach

• The Bill seeks to establish a more responsive, comprehensive, and effective system for preventing, reporting, enforcing, and monitoring employment discrimination and to advance the implementation of affirmative action through an effective administrative system.?
• The Bill envisages the repeal of the current Act in its totality and renames it the ‘Employment Equity Act’. This is to recognise the ultimate objective of implementing affirmative action in employment and to address and dispel the notion that employment equity is a short-term or time-bound project.?

Definitions

• Add a few new definitions to enhance the interpretation of the Bill: Definitions such as bullying, gender-based violence and harassment, impractical, Namibian citizen, reasonable accommodation, reporting date, review cycle, review period, and violence and harassment were added.?
• The definition of disabilities is also improved, considering several questions raised by the Commission over the years on this aspect.?

Administration

• The Bill establishes the Employment Equity Commission as a separate juristic person. Currently the Employment Equity Commission resorts under the Ministry of Labour.?
• Under the Bill, the Commissioner is no longer responsible for the administration of the Commission but is limited to being the chairperson accountable for overseeing the activities of the Commission.?
• Provision is made for appointing an administrative head, the Executive Officer, and the necessary staff members for the proper administration of the Commission.?

Employment equity

• ?It adds “Marginalised/Indigenous groups” to the definition of designated groups, namely the San, Ovatua and Ovatjimba as a new group of designated groups. Also, the Minister is empowered to increase or decrease this list over the years and as the need arises through a Government Notice, avoiding the need to amend the Act.?
• The aspect of eliminating discrimination did not enjoy the necessary prominence in the current Act. It is therefore introduced in the Bill to address this oversight.?
• Equal Remuneration for Work of Equal Value: Addressed in a separate section in the Bill as it is an area the Commission needs to place specific focus on in the future.?
• Employers not required to take specific measures: This section creates the balance in affirmative action implementation by assuring employers that they are not required to create new employment positions, hire or promote an arbitrary number of persons, hire or promote persons who are not suitably qualified and take employment decisions that act as an absolute bar on the recruitment or promotion prospects of a person who does not belong to a designated group.?

Identification and duties of employers

• Duties of relevant employers: Section 26 is introduced to capture essential duties under one section.?
• Confirmation of non-relevant employer status: Regarding the Public Procurement Act 15 of 2015, the Commission must prove to employers below the threshold that such employer is irrelevant. The Bill provides that the Commission may exercise discretion to only issue this confirmation of non-relevant employer status upon paying a small fee.?

Employment equity plan and report

• ?Key provisions are retained. The main amendment is to provide some form of flexibility in the content and form of the affirmative action plan and report to enable the Commission to accommodate smaller entities and changes in the content that present realities may necessitate.?
• The Bill in section 33 seeks to provide additional clarity to what is meant and required under equitable representation and establishment of numerical goals.?
• The Bill provides for self-identification by persons with disabilities. This is principally based on individuals’ involvement and not a unilateral exercise by the employer.?
• The Bill requires employment equity plans to demonstrate reasonable progress toward implementing employment equity. The Bill pushes for the need to give more attention to the implementation coupled with regular monitoring and evaluation of affirmative action plans.?
• Submission of employment equity reports: The current 18 months after designation as a relevant employer is shortened to 15 months.?
• Employers are obliged to, on filing an employment equity report with the Commission, also provide their employees’ representatives with a copy of the report.?
• Electronic filing: The Bill makes provision for electronic submissions of affirmative action reports.?
• Public inspection of employment equity reports: The provision that every employment equity report must be available for public inspection at a designated place remains unchanged. The Bill provides that any person may obtain a copy of any of the reports from the Commission on payment of a prescribed fee. Further, on the application of an employer, the Commission may withhold the employer’s report from public inspection for a period not exceeding one year if, in the opinion of the Commission, particular circumstances warrant the withholding.?
• The employment equity compliance certificate is valid 12 months from the issue date.?

Compliance

• Compliance audits: The Bill provides for compliance audits to be carried out by compliance officers if there are reasonable grounds to believe or suspect that a relevant employer has not complied with the provisions of the Bill. Currently, the Commission only has powers to investigate and enforce compliance when a report is before it for review.?
• Employer undertaking: Where a compliance officer believes that an employer is non-compliant with the Act as listed in section 50(a) to (h), the compliance officer must inform the employer of the non-compliance and shall attempt to negotiate a written undertaking from the employer to take specified measures to remedy the non-compliance. This is a redirection from the current Act, in which all contraventions are treated as criminal.?
• Under the Bill, an employer could correct any shortcoming identified during the review of an employment equity report after the disapproval and before a review panel. This is not the case currently.?

Monetary penalties

• The Bill removes specific charges from criminal contraventions and creates a regime of assessment and penalties concerning these contraventions, naming them violations rather than contraventions. The following violations will attract penalties in terms of the Bill:Failure to submit the employment equity report by the due dateSubmission of incomplete employment equity reportProviding false or misleading information; andFailure to correct shortcomings within the period provided.?

Miscellaneous

• The Commission will keep a public register of designated employers that have submitted affirmative action reports for purposes of transparency and to enable the public to know and be able to inform the Commission of possible non-compliance.

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