GENERAL ADMINISTRATIVE REGULATIONS

I, Membathisi Mphumzi Shepherd Mdladlana, Minister of Labour, under Section 55 of the Employment Equity Act, 1998 (Act No. 55 of 1998), and on the advice of the Commission for Employment Equity, hereby make the regulations set out in the Schedule, which are to be effective from 01 December 1999.

MMS MDLADLANA
Minister of Labour

1. Definitions

In these regulations any expression that is defined in the Employment Equity Act, 1998, has that meaning and unless the context otherwise indicates -

"Director-General"
as it appears in sections 14 and 21 of the Act, means the Director-General of Labour, Employment Equity Registry, Department of Labour, Private Bag X1 17, Pretoria, 0001;

"Director-General"
as it appears in sections 34, 37, 39, 40, 42, 43, 44 and 45 of the Act, means the Provincial Director of the Department of Labour -

1. in the province of KwaZulu/Natal, the Provincial Director, Department of Labour, P 0 Box 940, Durban, 4000, Tel (031) 336 1500, Fax (031) 307 6882;
2. in the province of the Northern Cape, the Provincial Director, Department of Labour, Private Bag X5002, Kimberley, 8300, Tel (053) 838 1500, Fax (053) 832 4798;
3. in the Northern Province, the Provincial Director, Department of Labour, Private Bag X9368, Pietersburg, 0700, Tel (015) 290 1744, Fax (015) 290 1670;
4. in the province of North-West, the Provincial Director, Department of Labour, Private Bag X2040, Mmabatho, 2735, Tel (018) 384 2033, Fax (018) 384 2597;
5. in the province of Eastern Cape, the Provincial Director, Department of Labour, Private Bag X9005, East London, 5200, Tel (043) 701 3000, Fax (043) 743 9719;
6. in the province of Mpumalanga, the Provincial Director, Department of Labour, Private Bag X7263, Witbank, 1035, Tel (013) 655 8700, Fax (013) 690 2622;
7. in the province of the Free State, the Provincial Director, Department of Labour, P0 Box 522, Bloemfontein, 9300, Tel (051)430 3001, Fax (051) 447 9353;
8. in the province of Gauteng:
   Gauteng-South: in the Magisterial Districts of Alberton, Boksburg, Brakpan, Germiston, Heidelberg, Johannesburg, Kempton Park, Oberhoizer, Randburg, Roodepoort, Vanderbijlpark, Vereeniging and Westonaria, the Provincial Director, Department of Labour, P 0 Box 4560, Johannesburg, 2000, Tel (011) 497 3000, Fax (011) 834 1081;
   Gauteng-North: in the Magisterial Districts of Benoni, Bronkhorstspruit, Cullinan, Krugersdorp, Nigel, Pretoria, Randfontein, Soshanguvel, Soshanguve 2, Springs and Wonderboom, the Provincial Director, Department of Labour, P 0 Box 393, Pretoria, 0001, Tel (012) 309 5000, Fax (012) 323 5449;
9. in the province of the Western Cape, the Provincial Director, Department of Labour, P0 Box 872, Cape Town, 8000, Tel (021) 460 5911, Fax (021) 465 7318;

"the Act"
means the Employment Equity Act, 1998 (Act No. 55 of 1998).

2. Collecting information and conducting an analysis (Section 19)

1) When a designated employer collects information about individual employees for the purposes of compiling a workforce profile to determine the degree to which employees from designated groups might be underrepresented, the employer must either -

1. request each employee in the workforce to complete, on a voluntary basis, a declaration that must be in the form of EEA 1 or contain the information required by that form; or
2. use existing dependable records of the employer, containing the information required by form EEA 1.

2) If the designated employer uses form EEA 1, all employees who complete the form must at any time be able to make changes to the form at their request.

3) If the designated employer elects to use a source of information referred to in subregulation (1 )(b), each employee has the right to verify any information relating to that employee, and to request that changes be made to that information.

4) A designated employer may use section B of form EEA 2 to develop the workforce profile of the employer's employees as required by section 19(2) of the Act.

5) When a designated employer conducts the analysis required by section 19(1) of the Act, the employer may refer to -

1. EEA 8 Annexure 1, for the recording of demographic data;
2. EEA 9 Annexure 2, which contains a definition of occupational levels; and
3. EEA 10 Annexure 3, which contains a definition of occupational categories.

6) A designated employer may refer to the Code of Good Practice: Preparation, Implementation and Monitoring of Employment Equity Plans as a guide when collecting information and conducting the analysis required by section 19 of the Act.

3. Duty to prepare and implement an employment equity plan (Section 20)

1) A designated employer may refer to the Code of Good Practice: Preparation, Implementation and Monitoring of Employment Equity Plans when preparing the employment equity plan required by section 20 of the Act.

2) A designated employer must retain the employment equity plan for a period of three years after the expiry of the plan, unless the employer employs fewer than 150 employees, in which case the plan must be retained for two years.

3) The employment equity plan must contain a description of the measures taken by the designated employer to ensure non-discrimination in relation to HI V/AIDS in that employer's workplace.

4) 'A workplace' means the place or places where the employees of an employer work. If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function, or organisation, the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation.

4. Duty to report (Section 21)

1) Each designated employer must submit a report in terms of section 21 of the Act, which must be in the form of EEA 2 or contain the information required by that form.

2) A designated employer whose operations extend across different geographical areas, functional units, workplaces or industry sectors may elect to submit a consolidated or separate report for each of these.

3) A designated employer must retain a copy of the report for a period of three years after it has been submitted to the Director-General, unless the employer employs fewer than 150 employees, in which case the report must be retained for two years.

4) Despite sub-clause (1) of this Regulation, a designated employer who employs less than 150 employees must submit a report in terms of Section 21 of the Act which must be in the form of either EEA 2 or EEA 2A or contain the information required by either such form.

5. Duty to inform (Section 25)

1) Each employer must display the notice required by section 25(1) of the Act in the form of EEA 3, in all the official languages spoken in that employer's workplace.

2) If there are employees in the workplace who are unable to read this notice, the employer must inform those employees verbally about the provisions of the Act.

3) The notice referred to in sub-regulation (1) is annexed in the following forms, each in the official language as indicated:

EEA 3 (English)      EEA 3A (Xitsonga)

6. Income Differentials (Section 27)

1) Each designated employer must submit a statement of income differentials required by section 27 of the Act in the form of EEA 4, or in a document that contains the information required by that form.

2) When completing the statement, designated employers may refer to EEA 10 for a definition of occupational categories.

3) Designated employers must submit the statement to: Employment Conditions Commission, do Employment Equity Registry, Department of Labour, Private Bag X117, Pretoria, 0001.

4) Designated employers must retain a copy of the statement for a period of three years after it has been submitted to the Employment Conditions Commission, unless the employer employs fewer than 150 employees, in which case the statement must be retained for two years.

5) Despite sub-clause (1) of this Regulation, a designated employer who employs less than 150 employees must submit a statement of income differentials required by Section 27 of the Act in the form of either EEA 4 or EEA 4A, or in a document that contains the information required by either such form.

7. Proof of submission

1) Whenever a person is required to satisfy any other person that a copy of any document required or prescribed by the Act or these regulations has been submitted to another party, that person may do so by providing -

1. a copy of the proof of mailing the document by registered post to the other party;
2. a copy of the telegram, telex, telefax or e-mail, including proof of transmission, communicating the document to the other party;
3. a copy of a receipt signed by the other party or on that party's behalf if the document was delivered by hand; or
4. a statement confirming delivery signed by the person who delivered the document.

8. Enforcement (Chapter 5)

1) Securing an undertaking (Section 36 of the Act)

Any undertaking secured by a labour inspector in terms of section 36 of the Act must be in the form of EEA 5 or contain the information required by that form.

2) Compliance order (Section 37 of the Act)

A compliance order issued by a labour inspector under section 37 of the Act must be in the form of EEA 6 or contain the information required by that form.

3) Objections to a compliance order (Section 39 of the Act)

1. An objection lodged by a designated employer under section 39 of the Act must be in the form of EEA 7 or contain the information required by that form.
2. The objection must be lodged with the Provincial Director at any provincial office of the Department of Labour listed in regulation 1(b).

9. Form EEA 11

1) Any person who applies to obtain a copy of any report submitted in terms of Section 21(6) of this Act must submit a completed Form EEA 11 to the Employment Equity Registry.

2) The prescribed fee for a copy of the report is R15,00 payable in revenue stamps, which must be affixed to the form referred to in sub-clause (1). An A5 sized self-addressed envelope. postage paid, must accompany the form.

EEA 3 Summary of the Act in terms of Section 25(1)

1) Chapter I. Definitions, purpose, interpretation and application

1.1) Purpose of the Act: Section 2

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

1. promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and
2. implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, to ensure their equitable representation in all occupational categories and levels in the workforce.

1.2) Application of the Act: Section 4

1. Chapter II (sections 5 - 11) applies to all employers and employees.
2. Chapter III (sections 12 - 27) applies to designated employers.
3. 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.
4. A designated group means black people, women and people with disabilities.
5. The South African National Defence Force, National Intelligence Agency, and South African Secret Services are excluded from this Act.

2) Chapter II. Prohibition of Unfair Discrimination

2.1) 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, 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.

2.2) It is not 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.

2.3) Medical Testing: Section 7

1. Medical testing of an employee is permissible only when legislation requires testing or when this is justifiable for various reasons.
2. HIV testing is prohibited unless such testing is determined to be justifiable by the Labour Court.

2.4) Psychological Testing: Section 8

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

2.5) Disputes concerning this Chapter: Section 10

1. An employee, or applicant for employment, may refer a dispute concerning alleged unfair discrimination (or medical or psychological testing) to the CCMA for conciliation. This must be done within six months of the alleged discrimination (or testing).
2. If a dispute is not resolved at conciliation, a party may refer it to the Labour Court for adjudication. The parties to a dispute may also agree to refer the dispute to arbitration.
3. Unfair dismissal disputes in which unfair discrimination is alleged must be dealt with in terms of the Labour Relations Act. The dismissal must be referred to the CCMA within 30 days.

3) Chapter III. Affirmative Action

3.1) Duties of a Designated Employer: Section 13

1. A designated employer must implement affirmative action measures for designated groups to achieve employment equity.

2. In order to implement affirmative action measures, a designated employer must:

   • consult with employees;
   • conduct an analysis;
   • prepare an employment equity plan; and
   • report to the Director-General on progress made in the implementation of the plan.

3.2) Affirmative Action measures: Section 15

1. Affirmative action measures are measures intended to ensure that suitably qualified employees from designated groups have equal employment opportunity and are equitably represented in all occupational categories and levels of the workforce.

2. Such measures must include:

   • identification and elimination of barriers with an adverse impact on designated groups;
   • measures which promote diversity;
   • making reasonable accommodation for people from designated groups;
   • retention, development and training of designated groups (including skills development); and

   • preferential treatment and numerical goals to ensure equitable representation. This excludes quotas.

3. Designated employers are not required to take any decision regarding an employment policy or practice that would establish an absolute barrier to prospective or continued employment or advancement of people not from designated groups.

3.3) Consultation: Sections 16 and 17

A designated employer must take reasonable steps to consult with representatives of employees representing the diverse interests of the workforce on the conducting of an analysis, preparation and implementation of a plan, and on reporting to the Director-General.

3.4) Disclosure of Information: Section 18

To ensure meaningful consultation, the employer must disclose relevant information to the consulting parties, subject to section 16 of the Labour Relations Act 66 of 1995.

3.5) Analysis: Section 19

A designated employer must conduct an analysis of employment policies, practices, procedures, and working environment so as to identify employment barriers that adversely affect members of designated groups. The analysis must also include the development of a workforce profile to determine to what extent designated groups are under-represented in the workplace.

3.6) Employment Equity Plan: Section 20

1. 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.

3.7) Report: Section 21

1. An employer who employs fewer than 150 employees must submit its first report to the Director-General within 12 months after the commencement of the Act, and thereafter every two years on the first working day of October.
2. An employer who employs 150 or more employees, must submit its first report 6 months after the commencement of the Act, and thereafter every year on the first working day of October.

3.8) Designated employer must assign a manager: Section 24

A designated employer must assign one or more senior managers to ensure implementation and monitoring of the employment equity plan and must make available necessary resources for this purpose.

3.9) Income Differentials: Section 27

A statement of remuneration and benefits received in each occupational category and level of the workforce must be submitted by a designated employer to the Employment Conditions Commission (ECC).

Where there are disproportionate income differentials, a designated employer must take measures to reduce it progressively. Such measures may include collective bargaining, compliance with sectoral determinations (section 51 of the Basic Conditions of Employment Act, 1997); the application of norms and benchmarks recommended by the ECC, relevant measures contained in skills development legislation, and any other appropriate steps.

4) Chapter V. Monitoring, Enforcement and Legal Proceedings

4.1) Monitoring: Section 34

Employee or trade union representatives can monitor contraventions of the Act and report to relevant bodies.

4.2) Powers of the Labour Inspector: Section 35

Labour Inspectors are authorised to conduct an inspection as provided for in sections 65 and 66 of the Basic Conditions of Employment Act, 1997.

4.3) Undertaking to Comply: Section 36

If the inspector has reasonable grounds to believe that a designated employer has failed to comply with its obligations in terms of the Act, the inspector will obtain a written undertaking to comply within a specified period.

4.4) Compliance Order: Section 37

If the designated employer refuses to comply with the written undertaking, the inspector will issue an order to comply.

4.5) Review by Director-General: Section 43

The Director-General may conduct a review to determine whether an employer is complying with the Act. On completion of the review, the Director-General may make recommendations for compliance within certain time frames.

4.6) Powers of the Labour Court: Section 50

The Labour Court has the powers to make any appropriate orders, award compensation, or impose fines.

4.7) Protection of Employee Rights: Section 51

The Act protects employees who exercise their rights and obligations under the Act against victimisation, obstruction and undue influence.

5) Chapter VI. General Provisions

5.1) State contracts: Section 53

Designated employers and employers who voluntarily comply with Chapter III, who seek to do business with any organ of state, will have to apply for a certificate from the Minister confirming their compliance with Chapters II and III of the Act. Non-designated employers' compliance certificates will pertain to Chapter II.

5.2) Liability of Employers: Section 60

Should employees contravene any provision of this Act, while performing their duties, the employer will be liable unless the employer can prove that it did everything in its power to prevent the undesired act.

EEA 8 Annexure 1: Demographic Data

What is the Purpose of this Annexure?

The data contained in this annexure were taken from the Census 96, published in 1998 by Statistics South Africa.

Instructions

Employers may use this data, when conducting an analysis of the workforce profile, to make a comparison with the relevant national and provincial demographics. Please note that the columns and rows do not always total exactly. This is because Statistics SA rounds off the numbers in their publications.

Should more demographic information be required, these may be obtained from Statistics SA.

EEA 9 Annexure 2: Occupational Levels

What is the Purpose of this Annexure?

Job evaluation or grading systems are used by many organisations to measure jobs according to their content and establish comparative worth between jobs.

This annexure provides a table of equivalent occupational levels which may be used by employers when completing forms EEA 2 and EEA 4.

Instructions

The table indicates the occupational levels within organisations as determined through the use of different job evaluation or grading systems. The table provides equivalent levels from each of these job evaluation systems.

Organisations that make use of neither one of the job evaluation systems in this table, nor a customised system linked to one of these, should use the Semantic Scale for guidance in determining occupational levels within that organisation.

EEA 10 Annexure 3: Occupational Categories

What is the Purpose of this Annexure?

This annexure provides a summary of definitions for occupational categories which may be used by employers when completing forms EEA 2 and EEA 4.

Instructions

Each occupational category contains a description and illustrative list of occupations that may be included in this category. The complete guideline to occupational categories may be included in that category. The complete guideline to occupational categories may be obtained from Statistics SA.

1) Legislators, Senior Officials and Managers

This group includes occupations whose main tasks consist of determining and formulating policy and strategic planning, or planning, directing and co-ordinating the policies and activities of the organisation in the private and public sectors, determining and formulating laws and for directing and controlling the functions of the organisation. Includes: chief executive officer; president: vice-president; chief operating officers; general managers and divisional heads; managers who provide the direction of a critical technical function; postmaster; superintendent; dean and school principal etc.

2) Professionals

This group includes occupations whose main tasks require a high level of professional knowledge and experience in the fields of physical and life sciences, or social sciences and humanities. The main tasks consist of increasing the existing stock of knowledge, applying scientific and artistic concepts and theories to the solution of problems, and teaching about the foregoing in a systematic manner. Includes: engineers (civil, mechanical, chemical, electrical, petroleum, nuclear, aerospace, etc.); architects; lawyers; biologists; geologists; psychologists; accountants; physicists, system analysts; assayers; valuators; town and traffic planners etc.

3) Technicians and Associate Professionals

This group includes occupations whose main tasks require technical knowledge and experience in one or more fields of the physical and life sciences, or the social sciences and humanities. The main tasks consist of carrying out technical work connected with the application of concepts and operational methods in the above-mentioned fields and in teaching at certain educational levels. Includes: computer programmers; nurses; physio-and-occupational therapists; draftsmen/women; musicians; actors; photographers; illustrating artists; product designers; radio and television announcers; translators and interpreters; writers and editors; specialised inspectors and testers of electronic, electrical, mechanical, etc. products; vocational instructors; technicians (medical, engineering, architectural, dental, physical science, life science, library, etc.); pilot; broker; designer; quality inspector etc.

4) Clerks

This group includes occupations whose main tasks require the knowledge and experience necessary to organise, store, compute and retrieve information. The main tasks consist of performing secretarial duties, operating word processors and other office machines, recording and computing numerical data, and performing a number of customer orientated clerical duties, mostly in connection with mail services, money-handling operations and appointments. Includes all clerical work, regardless of difficulty, in which the activities are predominantly non-manual. Includes: bookkeepers; tellers; cashiers; collectors (bills and accounts); messengers and office helpers; office machine operators; mail clerks; typists; telephone operators; electronic data processing equipment operators; clerks (production, shipping and receiving, stock, scheduling, ticket, freight, library, reception, travel, hotel, personnel, statistical, general office); secretaries etc.

5) Service and Sales Workers

This group includes occupations whose main tasks require the knowledge and experience necessary to provide persona) and protective services and to sell goods in shops or markets. The main tasks consist of providing services related to travel, housekeeping, catering, personal care, protection of individuals and property, and maintaining law and order, or selling goods in shops or markets.

Includes: attendants (hospital and other institutions, including nurses' aides and orderlies); barbers; bartenders; guides; food and beverage serving occupations; housekeepers; childcare occupations; conductors; fire-fighters; police officers; advertising agents; real estate agents; sales workers and sales clerks; shop attendants; stock brokers; insurance brokers; travel agents; sales people of technical and business services; etc.

6) Skilled Agricultural and Fishery Workers

This group includes occupations whose main tasks require the knowledge and experience necessary to produce farm, forestry and fishery products. The main tasks consist of growing crops, breeding or hunting animals, catching or cultivating fish, conserving and working forests, and selling agricultural and fishery products to purchasers. Includes: farmers; growers: planter; viticulturists; winemakers; skilled horticultural workers: greenkeepers; skilled fishermen/women etc.

7) Craft and Related Trades

This group includes occupations whose main tasks require the knowledge and experience of skilled trades and handicrafts which, among other things, involve an understanding of materials and tools to be used, as well as all stages of the production process, including the characteristics and the intended use of the final product. They are frequently journeymen/women who have received an extensive period of training. The main tasks consist of extracting raw materials, constructing buildings and other structures and making various products, as well as handicraft goods. Includes: miners; quarriers; stoneworkers; bricklayers; stonemasons; carpenters; shopfitters; plasterers; plumbers; electricians; painters; mechanics; glass-makers; locksmiths; sheet metal workers; etc.

8) Plant and Machine Operators and Assemblers

This group includes occupations whose main tasks require the knowledge and experience necessary to operate and monitor large-scale and often highly automated industrial machinery and equipment. The main tasks consist of operating and monitoring of mining, processing, and production machinery and equipment, as well as driving vehicles and driving and operating mobile plant, or assembling products from components. Includes: truck and tractor drivers; bus drivers; paving, surfacing and related occupations; roofers; photographic processors; sound and video recording equipment operators; those in apprenticeship training; textile workers; production machine workers etc.

9) Elementary Occupations

This group covers occupations which require relatively low/elementary levels of knowledge and experience necessary to perform mostly simple and routine tasks, involving the use of hand held tools and in some cases considerable physical effort, and, with few exceptions, limited personal initiative and judgement. The main tasks consist of selling goods in streets, door-keeping and property watching, as well as cleaning, washing, pressing, and working as labourers in the fields of mining, agriculture and fishing, construction and manufacturing. Includes: news and other vendors; garage attendants; car washers and greasers; gardeners; farm labourers; unskilled railway track workers; labourers performing lifting, digging, mixing, loading, and pulling operations; garbage collectors; stevedores; sweepers; charworkers etc.

EEA 11 Application for an Employment Equity Report

What is the purpose of this form?

This form contains the format for requesting an employers Employment Equity Report (Form EEA 2) from the Department of Labour.

Who fills in this form?

The applicant who is requesting this report.

Instructions

Complete this form and mail to the Employment Equity Registry.
Enclose revenue stamp to the value of R15,00 as well as a self-addressed (postage paid) envelope.

Send to?

Employment Equity Registry
(Application for Employment Equity Report)
The Department of Labour
Private Bag X117
Pretoria
0001
e-mail: ee@labour.gov.za

Section A: Applicant details:

Section B: Reason for this request:

Section C: Report requested: