3. Chapter 3 – Affirmative Action
3.1 Duties of a Designated Employer: Section 13
a. A designated employer must implement affirmative action measures for designated groups to achieve employment equity.
b. 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
a. 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.
b. 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.
c. 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
a. 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
a. 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 2 years on the first working day of October.
b. An employer who employers 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); the application of norms and benchmarks recommended by the ECC, relevant measures contained in skills development legislation, and any other appropriate steps.