Download ABR224 Lecture 1 and 2 2011 EEA

Lecture 1 and 2
When elephant retire- EE
These notes are insufficient for study purposes.
Bill of Rights, Chapter II of the
Constitution
 Dramatic changes effected over the last few years
 Constitutional equity as per section 9 of the Constitution
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need to be kept in mind when studying this section of the
work
Study section 9 of the Constitution- see the
handbook.
Two prime rights:
Right to equality.
Right not to be discriminated against.
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Do not get confused:
 Section 9 of the Constitution guarantees:
 Equality before the law– applicable to all EE en ER’s
and job seekers.
 Affirmative action provisions – applicable only to
certain employers and apply to certain categories of
people.
 Know the exceptions and to whom these two sections
and the EE Act apply and who not.
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Constitution of South Africa, s9: Equality
 (1) Everyone is equal before the law and has the right to
equal protection and benefit of the law.
 (2) 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.
 Historically
discrimination occurred and measures are
required to address the inequalities of the past.
 Equal opportunities in the workplace must be ensured.
 Is Affirmative Action “reverse discrimination”?
 Affirmative Action = positive action to overcome
institutionalized discrimination.
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 (3) The state may not unfairly discriminate directly or
indirectly against anyone on one or more grounds, including
race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.
 (4) No person may unfairly discriminate directly or indirectly
against anyone on one ore more grounds in terms of subsection
(3).
 National legislation must be enacted to prevent or prohibit
unfair discrimination.
 Discrimination = treating people differently.
 Fair discrimination?? YES think of job applications and vacancies.
 Unfair discrimination = treating people differently on an arbitrary
ground/inappropriate criteria to differentiate between persons.
 Direct discrimination:
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Discrimination on grounds listed but not limited thereto.
When persons belong to a certain category.
 Indirect discrimination:
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Neutral criteria is used to differentiate or exclude.
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Anti discrimination clause
4 possible meanings attached thereto:
1. Neutral meaning
2. Reverse Discrimination
3. Pejorative meaning of unfair difference in the legal,
social or economic treatment of persons ( pregnant
women- 4 months maternity leave- gender?)
4. Careful observation of distinctions, having good
judgement (positive meaning- deciding on an
appropriate sanction for misconduct)
5. DIFFERENTIATION IS NOT DISCRIMINATION!!
6. Unfairness is prohibited, not the distinction drawn!
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 Requirement for discrimination:
 Differentiation between listed and unlisted grounds:
Be careful.
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Differentiation must be proven. * the applicant must prove
that* and after that had been proven:
Differentiation was fair/unfair – has to be proven by .......
 Burden of proof:
 Discrimination on listed grounds:
 Presumption that the discrimination is unfair.
 Respondent must show it is not unfair.(employer must prove
that discrimination is fair)
 Discrimination on unlisted grounds:
 Applicants must prove there was discrimination and that it
was unfair.
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 (5) Discrimination on one or more of the grounds listed in
subsection (3) is unfair unless it is established that the
discrimination is fair.
 ILO defines discrimination as: “… any distinction, exclusion or
preference… which has the effect of nullifying or impairing
equality of opportunity or treatment in employment and
occupation… and any distinction, exclusion or preference in
respect of a particular job based on the inherent requirements
thereof shall not be deemed to be discrimination.”
 General definition of unfair discrimination: “…use of
irrelevant criteria to distinguish between individuals or
groups, which has the purpose/effect of less favourable
consequences for members of a group in relation to those of
another.”
 Two (2) forms of discrimination are not considered unfair and
consequently allowed;
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Affirmative action.
Differentiation based on inherent requirements of a job.
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Objectives of the Employment Equity Act
 To achieve equality through promotion of equal
opportunities and fair employment practices.
 Elimination of unfair discrimination through
affirmative action measures.
 To ensure equitable representation in all occupational
categories and levels.
 Designated employers must take measures to reduce
disproportionate differentials.
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Employment Equity Act applies to all employees and
employers with the exclusion of:
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NDF
NIA
SA Secret Service
SA National Academy of Intelligence
Staff and directors of COMSEC. (COMSEC (formally Electronic
Communications Security (Pty) Ltd) is a company owned by the
Government of South Africa through its National Intelligence Agency.
COMSEC’s main task is to secure South African government
communications against any unauthorized access and also from
technical, electronic or any other related threats. The company also
provides verification services for electronic communications security
systems, products and services used by the South African government.)
(Discrimination matters are dealt with by the Constitutional Court or a
complaint lodges with the Human Rights Commission)
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EEA, Chapter II:
 Prohibits discrimination.
 Employers must take steps to promote equality and
eliminate unfair discrimination.
 Applies to all employers and employees and job
applicants
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Provisions of Chapter II:
 Requires an employer to take steps to promote equal
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opportunities by eliminating unfair discrimination in
employment policies and practices.
Employer must address unfair discrimination in relation
to wage differentials by way of collective bargaining / BCEA
measures.
Medical testing of employees are prohibited unless
permitted by legislation.
HIV testing is prohibited unless permitted by the LC.
Psychometric testing is prohibited unless the test being
used has been scientifically validated as one that provides
reliable results and is appropriate for the intended purpose.
The test must be applied fairly to all employees irrespective
of their culture to exclude bias to people from designated
groups.
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EEA, Chapter III:
 Refers to designated employers only and applies to
persons from designated groups only.
 Designated employer:
 >50 employees.
 <50 employees but exceed the prescribed annual turnover of a
small business as stipulated in the Act.
 Municipality.
 Organ of State, excluding local government spheres, NDF,
NIA, SASS.
 Employer becomes a designated employer in terms of a
collective agreement.
 Employer excluded may become subject to the provisions:
 By notification to the Director General.
 Order of the Labour Court.
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 Designated employees – with no preferential ranking
specified;
Black people (Africans, Colourdes
and Indians).
Women.
People with disabilities.
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Disputes about Unfair
discrimination:
 Written referral to CCMA (not Bargaining Council)
within 6 months.
 Conciliation.
 Agreed Arbitration / Labour Court.
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ADDITIONAL NOTES
 Do the Activities as per the study guide and complete the
vocabulary lists.
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Do not forget to study section 9 of the Constitution
Study paragraphs 4.2.2 ,4.4-4.6 , 4.8
Read par 4.1,4.3,4.7.4,9-4.10
Study the relevant court cases as per your bundle.
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Outcomes:
Discuss the consequences and legal consequences of section 9(1)
Discuss the provisions of affirmative action
Discuss the provisions re anti-discrimination
What is the purpose/aim of affirmative action?
Harksen v Lane :How do you establish if unfair discrimination
occurred?
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EEA, Chapter II:
 Prohibits discrimination/unfair discrimination?
 Employers must take steps to promote equality
 and eliminate unfair discrimination.
 Direct and indirect discrimination are prohibited.
 Examples of each?
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 (3) The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race, gender,
sex, pregnancy, marital status, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth.
 (4) No person may unfairly discriminate directly or indirectly
against anyone on one ore more grounds in terms of subsection
(3). National legislation must be enacted to prevent or prohibit
unfair discrimination.
 Discrimination = treating people differently.
 Fair discrimination?? YES think of job applications and
vacancies.
 Unfair discrimination = treating people differently on an
arbitrary ground/inappropriate criteria to differentiate
between persons.
 Direct discrimination:
 Discrimination on grounds listed but not limited thereto.
 When persons belong to a certain category.
 Indirect discrimination:
 Neutral criteria is used to differentiate or exclude.
These notes are insufficient for study purposes.
Study
 Study definitions on designated groups and designated
employers
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Outcomes;
What are the principal objectives of the EEA?
How are these objectives achieved?
How are they applied?
Define designated employers and designated groups
Who are excluded form Chapter III?
Study par 4.5.1,4.5.2,4.5.3,4.6