CHAPTER SIX GENERAL PROVISIONS (ss 53-65)
53. State contracts
- Every employer that makes an offer to conclude an agreement with any organ of state for the furnishing of supplies or services to that organ of state or for the hiring or letting of anything--
- must--
- if it is a designated employer, comply with Chapters II and III of this Act; or
- if it is not a designated employer, comply with Chapter II of this Act; and
- attach to that offer either--
- a certificate in terms of subsection (2) which is conclusive evidence that the employer complies with the relevant Chapters of this Act; or
- a declaration by the employer that it complies with the relevant Chapters of this Act, which, when verified by the Director-General, is conclusive evidence of compliance.
- An employer referred to in subsection (1) may request a certificate from the Minister confirming its compliance with Chapter II, or Chapters II and III, as the case may be.
- A certificate issued in terms of subsection (2) is valid for 12 months from the date of issue or until the next date on which the employer is obliged to submit a report in terms of section 21, whichever period is the longer.
- A failure to comply with the relevant provisions of this Act is sufficient ground for rejection of any offer to conclude an agreement referred to in subsection (1) or for cancellation of the agreement7.
- The Minister may in the code of good practice set out factors that must be taken into account by any person assessing whether an employer complies with Chapter II or Chapter III.
54. Codes of good practice
- The Minister may, on the advice of the Commission--
- issue any code of good practice8; and
- change or replace any code of good practice.
- Any code of good practice, or any change to, or replacement of, a code of good practice must be published in the Gazette.
55. Regulations
- The Minister may, by notice in the Gazette and on the advice of the Commission, make any regulation regarding--
- any matter that this Act requires or permits to be prescribed; and
- any administrative or procedural matters that may be necessary or expedient to achieve the proper and effective administration of this Act.
- The Minister may by notice in the Gazette make a regulation providing for separate and simplified forms and procedures in respect of the obligations created by sections 19, 20, 21, 25 and 26 for employers that employ fewer employees.
56. Delegations
- The Minister may delegate any power conferred, or assign any duty imposed, upon the Minister in terms of this Act, except the powers and duties contemplated in sections 29(1), (5) and (7), 54, 55, 59 (4) and 61 (4).
- A delegation or assignment must be in writing and may be subject to any conditions or restrictions determined by the Minister.
- The Minister may at any time--
- withdraw a delegation or assignment made in terms of subsection (1); and
- withdraw or amend any decision made by a person exercising a power or performing a duty delegated or assigned in terms of subsection (1).
- The Director-General may delegate any power conferred, or assign any duty imposed, upon the Director-General in terms of this Act, to any employee in the Department.
- Subsections (2) and (3) apply with the changes required by the context to any delegation or assignment by the Director-General under subsection (4).
57. Temporary employment services
- For purposes of Chapter III of this Act, a person whose services have been procured for, or provided to, a client by a temporary employment service is deemed to be the employee of that client, where that person's employment with the client is of indefinite duration or for a period of three months or longer.
- Where a temporary employment service, on the express or implied instructions of a client, commits an act of unfair discrimination, both the temporary employment service and the client are jointly and severally liable.
58. Designation of organs of state
The President must, within six months after the commencement of this Act, and after consultation with the Minister responsible for the Public Service and Administration, publish a notice in the Gazette listing every designated employer within any organ of state.
59. Breach of confidentiality
- Any person who discloses any confidential information acquired in the performance of a function in terms of this Act, commits an offence.
- Subsection (1) does not apply if the information--
- is disclosed to enable a person to perform a function in terms of this Act; or
- must be disclosed in terms of this Act, any other law or an order of court.
- A person convicted of an offence in terms of this section may be sentenced to a fine not exceeding R30 000,00.
- The Minister may, by notice in the Gazette, amend the maximum amount of the fine referred to in subsection (3) in order to counter the effect of inflation.
60. Liability of employers
- If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by that employee's employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer.
- The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act.
- If the employer fails to take the necessary steps referred to in subsection (2), and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision.
- Despite subsection (3), an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.
61. Obstruction, undue influence and fraud
- No person may--
- obstruct or attempt to improperly influence any person who is exercising a power or performing a function in terms of this Act; or
- knowingly give false information in any document or information provided to the Director-General or a labour inspector in terms of this Act.
- No employer may knowingly take any measure to avoid becoming a designated employer.
- A person who contravenes a provision of this section commits an offence and may be sentenced to a fine not exceeding R30 000,00.
- The Minister may, by notice in the Gazette, amend the maximum amount of the fine referred to in subsection (3) in order to counter the effect of inflation.
62. This Act binds the State
This Act binds the State.
63. Application of Act when in conflict with other laws
If any conflict relating to a matter dealt with in this Act arises between this Act and the provisions of any other law other than the Constitution or an Act of Parliament expressly amending this Act, the provisions of this Act prevail.
64. Repeal of laws and transitional arrangements
Each of the laws referred to in the first two columns of Schedule 2 is repealed to the extent specified opposite that law in the third column of that Schedule.
64A. Amendment of annual turnover thresholds in Schedule 4
The Minister may, after consultation with the Commission, by notice in the Gazette, amend the total annual turnover thresholds in Schedule 4 in order to counter the effect of inflation.
65. Short title and commencement
- This Act is called the Employment Equity Act, 1998.
- This Act takes effect on a date to be determined by the President by proclamation in the Gazette. The President may determine different dates in respect of different provisions of this Act.
- If, in terms of subsection (2), different dates are determined for particular provisions of this Act--
- Schedule 2 must take effect at the same time as section 6 (1) takes effect; and
- a reference in a provision of this Act to a time when this Act took effect must be construed as a reference to the time when that provision takes effect.
