1. EMPLOYMENT EQUITY AMENDMENT ACT Anastasia Vatalidis

2. EMPLOYMENT EQUITY ACT Came into effect of 1 August 2014 2

3. PURPOSE To substitute or insert definitions To further prohibit unfair discrimination To impose harsher fines or penalties for non-compliance 3

4. DESIGNATED GROUPS Black people, women and people with disabilities who - are citizens of the RSA by birth or descent; became citizens of the RSA by naturalization prior to 27 April 1994; or after 26 April 1994 and who would have been entitled to acquire citizenship prior to that date but for Apartheid policies 4

5. NEW GROUNDS OF DISCRIMINATION a difference in terms and conditions of employment between - employees performing the same or substantially the same work; or work of equal value that is directly or indirectly based on one or more of the grounds already contemplated in the EEA. 5

6. EQUAL PAY FOR EQUAL WORK What does it mean? 6

7. EQUAL PAY FOR EQUAL WORK - INTERNATIONAL STANDARDS ILO Equal Remuneration Convention Convention 100 of 1951 (ratified 30 March 2000) Each member shall, by means appropriate to the methods in operation for determining rates of remuneration, promote and, in so far as is consistent with such methods, ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value 7

8. EQUAL PAY FOR EQUAL WORK INTERNATIONAL STANDARDS Universal Declaration Of Human Rights Everyone, without any discrimination, has the right to equal pay for equal work. ILO Discrimination (Employment and Occupation) Convention Convention 111 of 1958 (ratified 5 March 1997) Each member undertakes to declare and pursue a national policy designed to promote, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof. 8

9. EQUAL PAY FOR EQUAL WORK - EEA REGULATIONS Equal work - work that is identical or interchangeable; work performed by employees that is sufficiently similar that they can reasonably be considered to be performing the same job, even if their work is not identical or interchangeable; or if their respective occupations are accorded the same value in accordance with regulations 5 - 7 9

10. DETERMINING EQUAL WORK? Same Value (regulation 5) step one - is the work of equal value (in accordance with regulation 6); and is there a difference in terms and conditions of employment, including remuneration; step two - whether any difference constitutes unfair discrimination. 10

11. DETERMINING EQUAL WORK? Criteria for equal value (regulation 6) responsibility demanded of the work, responsibility for people, finances and material; skills, qualifications, including prior learning and experience required, whether formal or informal; physical, mental and emotional effort required; conditions under which work is performed, including physical environment, psychological conditions, time when and geographic location; any other factor indicating the value of the work may be taken into account in evaluating work. 11

12. DETERMINING EQUAL WORK? the assessment of equal value conducted in a manner that is free from bias on grounds of race, gender or disability, any other listed or arbitrary ground employer may justify the value assigned to work with reference to the classification of a relevant job in terms of a sectoral determination made by the Minister of Labour in terms of BCEA 12

13. EQUAL BUT DIFFERENT (?) Unequal terms and conditions in respect of employees performing work of equal value, is not unfair discrimination if the difference is - fair; rational; based on any one or a combination of the grounds (regulation 7); 13

14. EQUAL BUT DIFFERENT (?) REGULATION 7 - seniority; length of service; qualifications; ability; competence or potential above the minimum; performance; quantity or quality of work (provided that employees are equally subject to the employer's performance evaluation system); 14

15. EQUAL BUT DIFFERENT (?) REGULATION 7 demotion (organisational restructuring or other legitimate reason) without a pay reduction and fixing the employee's salary until the remuneration of employees in the same job category reaches this level; individual employed temporarily in a position for purposes of gaining experience or training, receiving different remuneration or different terms and conditions; skill shortage or the market value in a particular job classification; any other relevant factor that is not unfairly discriminatory. 15

16. DISPUTES unfair discrimination and prohibited medical or psychological testing, all disputes CCMA, unless the employee earns in excess of the earnings threshold (R205 433.30), in which case the dispute must be referred to the Labour Court; sexual harassment cases - CCMA; certain arbitration awards can be appealed to the Labour Court 16

17. BURDEN OF PROOF If discrimination alleged on section 6(1) grounds the employer must- prove that discrimination did not take place; or is rational, not unfair, justifiable. If discrimination alleged on arbitrary grounds the complainant must prove - conduct not rational; conduct amounts to discrimination; discrimination unfair. 17

18. PENALTIES AND FINES The Act significant changes to the fines and penalties provided for previously. The previous fines and penalties have been amended by increasing the fines payable in respect of contraventions. Fines currently range from R500 000 to R900 000. 18

19. PROPOSED PENALTIES AND FINES Consultation, analysis, appoint manager, displaying information, retention or records - First contravention R1 500 000; Four previous contraventions R2 700 000. Non-compliance with the employment equity plan or employment equity reporting obligations of the Act First contravention the greater of R1 500 000 or 2% of turnover; Four previous the greater of R2 700 000 or 10% of turnover. 19

20. SOUTH AFRICAN POLICE SERVICE V SOLIDARITY OBO BARNARD [2014] ZACC 23

21. SAPS V SOLIDARITY OBO BARNARD [2014] ZACC 23 Section 6(1) of the EEA provides that 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, birth or on any other arbitrary ground. 21

22. SAPS V SOLIDARITY OBO BARNARD [2014] ZACC 23 Section 9(2) of the Constitution of the Republic of South Africa provides Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. 22

23. SAPS V SOLIDARITY OBO BARNARD [2014] ZACC 23 Background of dispute the dispute relates to the question of whether or not the decision of the National Commissioner of the SAPS not to promote Barnard to the position of superintendent in the SAPS National Evaluation Service, constitutes unfair discrimination on grounds of race. 23

24. SAPS V SOLIDARITY OBO BARNARD [2014] ZACC 23 Labour Court (24 February 2010)- upheld Barnards claim that the failure to promote amounted to unfair discrimination; held that SAPS failed to discharge onus to prove that decision was fair and therefore the decision not to appoint Barnard was unfair and invalid; Employment Equity Plan must be applied fairly with due regard to the affected individuals right to equality. 24

25. SAPS V SOLIDARITY OBO BARNARD [2014] ZACC 23 Labour Appeal Court (2 November 2012) upheld the appeal and set aside the order of the Labour Court; no discrimination had occurred because no appointment had been made; the decision not to promote Barnard was justifiable. 25

26. SAPS V SOLIDARITY OBO BARNARD [2014] ZACC 23 Supreme Court of Appeal (28 November 2013) reversed the decision of the Labour Appeal Court; held Barnard should be paid compensation calculated as the difference between what she would have earned had she been a superintendent and what she continued to earn as a captain, but limited to a two-year period; National Commissioners decision not to appoint her amounted to discrimination on the ground of race; SAPS did not discharge onus to prove the discrimination was not fair. 26

27. SAPS V SOLIDARITY OBO BARNARD [2014] ZACC 23 Constitutional Court (2 September 2014) appeal against SCA decision upheld; decision of the LAC affirmed; SCA misconceived the issues before it; SCA obliged to examine the equality claim through the prism of section 9(2) of the Constitution and section 6(2) of the EEA because the validity of the SAPS Employment Equity Plan was not under challenge by Barnard; 27

28. SAPS V SOLIDARITY OBO BARNARD [2014] ZACC 23 in addition, the review of the National Commissioners decision, was only raised for the first time on appeal and was therefore not properly before the Constitutional Court; the claim that was brought before the other Courts was that of unfair discrimination and not the National Commissioners decision. 28

29. THANK YOU Date 18 September 2014 Legal notice: Nothing in this presentation should be construed as formal legal advice from any lawyer or this firm. Readers are advised to consult professional legal advisors for guidance on legislation which may affect their businesses. 2014 Werksmans Incorporated trading as Werksmans Attorneys. All rights reserved.