CHAPTER FIVE MONITORING, ENFORCEMENT AND LEGAL PROCEEDINGS (ss 34-52)

PART A   Monitoring

34.   Monitoring by employees and trade union representatives

Any employee or trade union representative may bring an alleged contravention of this Act to the attention of--
  1. another employee;
  2. an employer;
  3. a trade union;
  4. a workplace forum;
  5. a labour inspector;
  6. the Director-General; or
  7. the Commission.

Enforcement

35.   Powers of labour inspectors

A labour inspector acting in terms of this Act has the authority to enter, question and inspect as provided for in sections 65 and 66 of the Basic Conditions of Employment Act.

36.   Undertaking to comply

  1. A labour inspector may request and obtain a written undertaking from a designated employer to comply with paragraphs (a), (b), (f), (h), (i) or (j) within a specified period, if the inspector has reasonable grounds to believe that the employer has failed to--
    1. consult with employees as required by section 16;
    2. conduct an analysis as required by section 19;
    3. .........................
    4. .........................
    5. .........................
    6. publish its report as required by section 22;
    7. .........................
    8. assign responsibility to one or more senior managers as required by section 24;
    9. inform its employees as required by section 25; or
    10. keep records as required by section 26.

  2. If a designated employer does not comply with a written undertaking within the period stated in the written undertaking, the Labour Court may, on application by the Director-General, make the undertaking, or any part of the undertaking, an order of the Labour Court.

37.   Compliance order

  1. A labour inspector may issue a compliance order to a designated employer if that employer has failed to comply with section 16, 17, 19, 22, 24, 25 or 26 of this Act

  2. A compliance order issued in terms of subsection (1) must set out--
    1. the name of the employer, and the workplaces to which the order applies;
    2. those provisions of Chapter III of this Act which the employer has not complied with and details of the conduct constituting non-compliance;
    3. any written undertaking given by the employer in terms of section 36 and any failure by the employer to comply with the written undertaking;
    4. any steps that the employer must take and the period within which those steps must be taken;
    5. the maximum fine, if any, that may be imposed on the employer in terms of Schedule 1 for failing to comply with the order; and
    6. any other prescribed information.

  3. A copy of the compliance order must be served on the employer named in it.

  4. A designated employer who receives a compliance order served in terms of subsection (3) must display a copy of that order prominently at a place accessible to the affected employees at each workplace named in it.

  5. A designated employer must comply with the compliance order within the time period stated in it

  6. If a designated employer does not comply with an order within the period stated in it, the Director-General may apply to the Labour Court to make the compliance order an order of the Labour Court.

38.   Limitations

A labour inspector may not issue a compliance order in respect of a failure to comply with a provision of Chapter III of this Act if--
  1. the employer is being reviewed by the Director-General in terms of section 43; or
  2. the Director-General has referred an employer's failure to comply with a recommendation to the Labour Court in terms of section 45.

39.   Objections against compliance order

Repealed by Employment Equity Amendment Act, 2013.

40.   Appeal from compliance order

Repealed by Employment Equity Amendment Act, 2013.

41.   Register of designated employers

  1. The Minister must keep a register of designated employers that have submitted the reports required by section 21.

  2. The register referred to in subsection (1) is a public document.

42.   Assessment of compliance

  1. In determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General or any person or body applying this Act may, in addition to the factors stated in section 15, take the following into account:

  2. a.   The extent to which suitably qualified people from and amongst the different designated groups are equitably represented within each occupational level in that employer's workforce in relation to the demographic profile of the national and regional economically active population;
    b.   reasonable steps taken by a designated employer to train suitably qualified people from the designated groups
    c.   reasonable steps taken by a designated employer to implement its employment equity plan;
    d.   the extent to which the designated employer has made progress in eliminating employment barriers that adversely affect people from designated groups;

    dA.   reasonable steps taken by an employer to appoint and promote suitably qualified people from the designated groups; and

    e.   any other prescribed factor.

  3. The Minister, after consultation with NEDLAC, may issue a regulation in terms of section 55 which must be taken into account by any person who is required to determine whether a designated employer is implementing employment equity in compliance with this Act.

  4. Without limiting subsection (1)(a), the regulation made in terms of subsection (2) may specify the circumstances under which an employer's compliance should be determined with reference to the demographic profile of either the national economically active population or the regional economically active population.

  5. In any assessment of its compliance with this Act or in any court proceedings, a designated employer may raise any reasonable ground to justify its failure to comply.

43.   Review by Director-General

  1. The Director-General may conduct a review to determine whether an employer is complying with this Act.

  2. In order to conduct the review the Director-General may--
    1. request an employer to submit to the Director-General a copy of its current analysis or employment equity plan;
    2. request an employer to submit to the Director-General any book, record, correspondence, document or information that could reasonably be relevant to the review of the employer's compliance with this Act;
    3. request a meeting with an employer to discuss its employment equity plan, the implementation of its plan and any matters related to its compliance with this Act; or
    4. request a meeting with any--
      1. employee or trade union consulted in terms of section 16;
      2. workplace forum; or
      3. other person who may have information relevant to the review.

44.   Outcome of Director-General's review

Subsequent to a review in terms of section 43, the Director-General may--
  1. approve a designated employer's employment equity plan; or
  2. make a recommendation to an employer, in writing, stating--
    1. steps which the employer must take in connection with its employment equity plan or the implementation of that plan, or in relation to its compliance with any other provision of this Act; and
    2. the period within which those steps must be taken; and
    3. any other prescribed information.

45.   Failure to comply with Director-General's request or recommendation -

  1. If an employer fails to comply with a request made by the Director-General in terms of section 43 (2) or a recommendation made by the Director-General in terms of section 44 (b), the Director-General may apply to the Labour Court.
    1. for an order directing the employer to comply with the request or recommendation; or
    2. if the employer fails to justify the failure to comply with the request or recommendation, to impose a fine in accordance with Schedule 1 on the employer.

  2. If an employer notifies the Director-General in writing within the period specified in a request or recommendation that it does not accept the request or recommendation, the Director-General must institute proceedings in terms of subsection (1) within-
    1. 90 days of receiving the employer's notification, in the case of a request; or
    2. 180 days of receiving the employer's notification, in the case of a recommendation.

  3. If the Director-General does not institute proceedings within the relevant period contemplated in subsection (2), the request or recommendation, as the case may be, lapses.

  4. Any challenge to the validity of the Director-General's request or recommendation may only be made in the proceedings contemplated in subsection (1).

PART B   Legal proceedings

46.   Conflict of proceedings

  1. If a dispute has been referred to the CCMA by a party in terms of Chapter II and the issue to which the dispute relates also forms the subject of a referral to the Labour Court by the Director-General in terms of section 45, the CCMA proceedings must be stayed until the Labour Court makes a decision on the referral by the Director-General.

  2. If a dispute has been referred to the CCMA by a party in terms of Chapter II against an employer being reviewed by the Director-General in terms of section 43, there may not be conciliation or adjudication in respect of the dispute until the review has been completed and the employer has been informed of the outcome.

47.   Consolidation of proceedings

Disputes concerning contraventions of this Act by the same employer may be consolidated.

48.   Powers of commissioner in arbitration proceedings

  1. A commissioner of the CCMA may, in any arbitration proceedings in terms of this Act, make any appropriate arbitration award that gives effect to a provision of this Act.

  2. An award made by a commissioner of the CCMA hearing a matter in terms of section 10(6)(aA) or (b) may include any order referred to in section 50(2)(a) to (c), read with the changes required by the context, but an award of damages referred to in section 50(2)(b) may not exceed the amount stated in the determination made by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act.

49.   Jurisdiction of Labour Court

The Labour Court has exclusive jurisdiction to determine any dispute about the interpretation or application of this Act, except where this Act provides otherwise.

50.   Powers of Labour Court

  1. Except where this Act provides otherwise, the Labour Court may make any appropriate order including--
    1. on application by the Director-General in terms of section 37 (6) or 39 (6) making a compliance order an order of the Labour Court;
    2. subject to the provisions of this Act, condoning the late filing of any document with, or the late referral of any dispute to, the Labour Court;
    3. directing the CCMA to conduct an investigation to assist the Court and to submit a report to the Court;
    4. awarding compensation in any circumstances contemplated in this Act;
    5. awarding damages in any circumstances contemplated in this Act;
    6. ordering compliance with any provision of this Act; including a request made by the Director-General in terms of section 43 (2) or a recommendation made by the Director-General in terms of section 44 (b);
    7. imposing a fine in accordance with Schedule 1 for a contravention of certain provisions of this Act;
    8. reviewing an administrative action in terms of this Act on any grounds that are permissible in law;
    9. in an appeal under section 40, confirming, varying or setting aside all or part of an order made by the Director-General in terms of section 39; and
    10. dealing with any matter necessary or incidental to performing its functions in terms of this Act.

  2. If the Labour Court decides that an employee has unfairly discriminated against, the Court may make any appropriate order that is just and equitable in the circumstances, including--
    1. payment of compensation by the employer to that employee;
    2. payment of damages by the employer to that employee;
    3. an order directing the employer to take steps to prevent the same unfair discrimination or a similar practice occurring in the future in respect of other employees;
    4. an order directing an employer, other than a designated employer, to comply with Chapter III as if it were a designated employer;
    5. an order directing the removal of the employer's name from the register referred to in section 41; or
    6. the publication of the Court's order.

  3. The Labour Court, in making any order, may take into account any delay on the part of the party who seeks relief in processing a dispute in terms of this Act.

  4. If the Labour Court declares that the medical testing of an employee as contemplated in section 7 is justifiable, the court may make any order that it considers appropriate in the circumstances, including imposing conditions relating to--
    1. the provision of counselling;
    2. the maintenance of confidentiality;
    3. the period during which the authorisation for any testing applies; and
    4. the category or categories of jobs or employees in respect of which the authorisation for testing applies.

  5. A fine payable in terms of this Act must be paid into the National Revenue Fund referred to in section 213 of the Constitution.

PART C   Protection of employee rights

51.   Protection of employee rights

  1. No person may discriminate against an employee who exercises any right conferred by this Act.

  2. Without limiting the general protection conferred by subsection (1), no person may threaten to do, or do any of the following:
    1. Prevent an employee from exercising any right conferred by this Act or from participating in any proceedings in terms of this Act; or
    2. prejudice an employee because of past, present or anticipated--
      1. disclosure of information that the employee is lawfully entitled or required to give to another person;
      2. exercise of any right conferred by this Act; or
      3. participation in any proceedings in terms of this Act.

  3. No person may favour, or promise to favour, an employee in exchange for that employee not exercising any right conferred by this Act or not participating in any proceedings in terms of this Act.

  4. Nothing in this section precludes the parties to a dispute arising out of an alleged breach of any right conferred by this Part, from concluding an agreement to settle the dispute.

  5. For the purposes of this section ";employee"; includes a former employee or an applicant for employment.

52.   Procedure for disputes

  1. If there is a dispute about the interpretation or application of this Part, any party to the dispute may refer it in writing to the CCMA.

  2. The CCMA must attempt to resolve a dispute referred to it in terms of this Part through conciliation.

  3. If the dispute remains unresolved after conciliation--
    1. any party to the dispute may refer it to the Labour Court for adjudication; or
    2. all the parties to the dispute may consent to arbitration of the dispute by the CCMA.

  4. In respect of a dispute in terms of this Part, the relevant provisions of Part C and D of Chapter VII of the Labour Relations Act apply, read with the changes required by the context.