EMPLOYMENT EQUITY ACT SOUTH AFRICA PDF
Page 1. Page 2. Page 3. Page 4. Page 5. Page 6. Page 7. Page 8. Page 9. Page Page Page Page Page Page Page Page Page The Employment Equity Act applies to all employers, workers and job Force;; National Intelligence Agency; and; South African Secret Service. This icon indicates that the file is a Adobe Portable Document (PDF) file. The Employment Equity (EE) Act seeks to end discrimination and promote processes in order to ensure that South Africa meets her obligations in this.
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PDF icon apdf, MB. 55 of Related links: Amended by Employment Equity Amendment Act 47 of from 1 Aug · - Amended by . The purpose of the Employment Equity Act, No 55 of is to achieve of Labour on Employment Equity On-Line Reporting (7MB PDF). ensure the implementation of employment equity to redress the effects of " Constitution" means the Constitution of the Republic of South Africa, (Act No.
Multiple or dominant-impression test[ edit ] The deficiencies of the control and organisation tests led the courts to approach the question in the same way that they approach so many other problems: The relationship is viewed as a whole; a conclusion is drawn from the entire picture.
In Ongevallekommissaris v Onderlinge Versekeringsgenootskap AV-BOB , although the court did not spell out exactly what may be included in the general picture, guidance may be derived from the English case of Ready Mixed Concrete v Minister of Pensions and National Insurance , in which the presiding officer set out three possible components: The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.
The other provisions of the contract are consistent with its being a contract of service. When courts examine the "other provisions of the contract," they will consider all relevant aspects of the relationship. These include: the form of the contract; the right to supervision in other words, whether the employer has the right to supervise the person ; the extent to which the worker depends on the employer in the performance of his duties; whether the employee is not allowed to work for another;  whether the worker is required to devote a specific amount of time to his work; whether the worker is obliged to perform his duties personally;  whether the worker is paid according to a fixed rate or by commission; whether the worker provides his own tools and equipment; and whether the employer has the right to discipline, suspend and dismiss the worker.
In Smit v Workmen's Compensation Commissioner , the court had to decide whether Smit, who had been employed as an "agent" for an insurance company, was an employee or not.
The dominant-impression test was followed in this case, and Smit was held to not be an employee of the insurance company. In Medical Association of SA v Minister of Health , several district surgeons challenged the decision of the provincial MEC for Health for the Free State to terminate their contracts summarily as part of the restructuring of the district health service. The multiple or dominant impression test was followed, and the court used the factors discussed in Smit to assist it in obtaining the dominant impression that part-time district surgeons were in fact employees of the State.
The court held that the dominant-impression tests entails that one should have regard to all those considerations or indica which would contribute towards a determination of whether the contract is one of service or of work, and react to the impression one gets upon a consideration of all such indica.
The Labour Court based its decision on the following factors: The doctors rendered "personal services. The employer was obliged to pay a "contractual salary" to the doctors even in the absence of any actual work being performed, as long as the doctors made themselves available to do the work.
Even though the doctors were professionals, the provincial administration did have some control over the way in which services were rendered. The test has been subjected to severe criticism. Etienne Mureinik has said that it test offers no guidance in answering the legal question whether the facts are of such a nature that the individual may be held to be servant within the meaning of the common law in difficult penumbral cases.
Indeed, it is no test at all. To say that an employment contract is a contract which looks like one of employment sheds no light whatsoever on the legal nature of the relationship. This criticism is based on the idea that it is not helpful to say a particular relationship exists because it looks like it does. Productive capacity test[ edit ] In other decisions, the courts appear to have resorted to what may be described as the "productive capacity" test.
E]mployment is a relationship in which one person is obliged, by contract or otherwise, to place his or her capacity to work at the disposal of another [ A]n employee is to be distinguished from an independent contractor, who undertakes to deliver, not his or her capacity to produce, but the product of that capacity, the completed work.
Employment Equity Act
Differences between employees and independent contractors[ edit ] In SA Broadcasting Corporation v McKenzie , the Labour Appeal Court summarised the main differences between the contract of employment proper and what is called the "contract of work" locatio conductio operis : In the first, the object is the rendering of personal services between employer and employee; in the second, the object is the production of a certain specified service or the production of a certain specified result.
The employee renders the service at the behest of the employer; the independent contractor is not obliged to perform his work personally, unless otherwise agreed. The employer may decide whether it wishes to have employee render service; the independent contractor is bound to perform specified work or produce a specified result within a specified or reasonable time.
The employee is obliged to obey lawful, reasonable instructions regarding work to be done, and the manner in which it is to be done; the independent contractor is not obliged to obey instructions regarding the manner in which a task is to be performed.
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A contract of employment proper is terminated by the death of the employee; the contract of work is not terminated by the death of the contractor. A contract of employment terminates on completion of the agreed period; the contract of work terminates on completion of the specified work, or on production of the specified result.
Labour Relations Act s A[ edit ] There is very little work that cannot be outsourced. Outsourcing is generally not supported by trade unions, who represent employees.
If work is outsourced, the worker is an independent contractor.
Political pressure was placed on government to move away from outsourcing and more towards employment. In , accordingly, a new presumption was added to the Labour Relations Act , providing guidelines on when it has to be ascertained whether or not someone is an employee. This presumption was introduced as a part of significant amendments to the Labour Relations Act and the Basic Conditions of Employment Act in The legislative provision has been taken by some to be merely a restatement or summary of the principles laid down by the courts with the passing of time.
Although this presumption is useful in determining whether a person is an employee or not, as it is closely linked to the principles and approaches developed by the courts, the Labour Court held, in Catlin v CCMA , that section A does not do away with the principle that the true nature of the relationship between the parties must be gathered from the contract between them.
Section A is not the starting point, therefore; the court held that it is necessary to consider the provisions of the contract before applying the presumptions. Essentials[ edit ] The common-law concept of employment sets the scene for the interpretation of the Labour Relations Act The contract of employment is the foundation of the relationship between an employee and his employer.
It links the two parties in an employment relationship, irrespective of the form the contract takes. The existence of an employment relationship is the starting point for the application of all labour law rules.
Without an employment relationship between the parties, the rules of labour law do not apply. The origin of South Africa's modern contract of employment lie in Roman law, where a distinction was made between the two types of contracts discussed above: locatio conductio operis and locatio conductio operarum. In terms of the common law, one does not have to have a written contract; therefore, not having the contract in written form is not a fatal flaw, as the contract can be verbal.
There are, however, a number of statutes which require specific contracts of employment to be in writing. Section 29 of the Basic Conditions of Employment Act, for example, states that the employer must supply the employee with certain written particulars concerning specific things, like hours worked and remuneration.
Like any contract, the locatio conductio operarum commences when the parties have agreed to its essential terms, unless both parties have agreed to suspend its operation for a particular period. If the contract's operation is suspended, the employer is obliged to allow the employee to commence work on the specified date.
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Failure to do so, without good cause, constitutes a breach of contract at common law and a dismissal under the Labour Relations Act It is important, therefore, to determine what the essentials of the contract of employment are.
Stripped to its essence, the contract of employment today may be defined as an agreement between two parties, in terms of which one party the employee works for another the employer in exchange for remuneration. Although this definition appears to be simple, it contains a number of important principles, aspects and implications. Agreement[ edit ] Firstly, it must be noted that the employment contract is based on agreement; the parties must enter into it voluntarily.
This idea finds expression in section 13 of the Constitution, which provides that "no one may be subjected to slavery, servitude or forced labour," and section 48 of the Basic Conditions of Employment Act, which states that "all forced labour is prohibited. If it does not comply with these requirements, it will not be regarded as binding and enforceable.
Long-term or recurring Long-term usually means the impairment has lasted or is likely to persist for at least twelve months.
A short-term or temporary illness or injury is not an impairment which gives rise to a disability. A recurring impairment is one that is likely to happen again and to be substantially limiting. It includes a constant underlying condition, even if its effects on a person fluctuate.
Progressive conditions are those that are likely to develop or change or recur. People living with progressive conditions or illnesses are considered as people with disabilities once the impairment starts to be substantially limiting. Progressive or recurring conditions which have no overt symptoms or which do not substantially limit a person are not disabilities.
An impairment may be physical or mental. It includes sensory impairments such as being deaf, hearing impaired, or visually impaired and any combination of physical or mental impairments. An impairment is substantially limiting if, in the absence of reasonable accommodation by the employer, a person would be either totally unable to do a class of jobs or would be significantly limited in doing the particular class of jobs.
This should be determined by considering the nature, extent, duration and impact of the impairment as well as the essential functions of the class of jobs in question. This Act empowers people with disabilities to participate in learnership programmes and thus creates the opportunity of skills development and possible employment.
Ratified UN Convention on Rights of Persons with Disabilties on 30 November Employer Legal Requirements Every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.The date on which it will come into force is not known.
Know your rights There are a number of laws in South Africa which protect your right to safety, offer protection from harassment; and promote bodily integrity. Insertion of section 15A in Act 55 of 4.
Long process, but appears to moving into formal law. In terms of the common law, one does not have to have a written contract; therefore, not having the contract in written form is not a fatal flaw, as the contract can be verbal. Sharpening EQ skills ensures that we have balanced and holistic leaders, who are not only above average in their skills and intelligence, but capable of navigating the social and emotional complexity often demanded of leaders.
Employment equity exists in legislation, policies and programmes that have been put in place by government to promote disability equity although in practice falls far short as people with disabilities in South Africa are considerably more likely to be unemployed. By focusing on individuals and their unique development goals, Discovery is building a pipeline of talented individuals who can contribute to South Africa more broadly in the future.
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