Chapter V

CHAPTER V

MONITORING, ENFORCEMENT AND LEGAL PROCEEDINGS

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. (g) 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.--A labour inspector must request and obtain a written undertaking from a designated employer to comply with paragraphs (a) to ( 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. prepare an employment equity plan as required by section 20;
4. implement its employment equity plan;
5. submit an annual report as required by section 21;
6. publish its report as required by section 22;
7. prepare a successive employment equity plan as required by section 23;
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.

37.   Compliance order.--(1)  A labour inspector may issue a compliance order to a designated employer if that employer has--

1. refused to give a written undertaking in terms of section 36, when requested to do so; or
2. failed to comply with a written undertaking given in terms of section 36.

(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 labour inspector who issues a compliance order must serve a copy of that order 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, unless the employer objects to that order in terms of section 39.

(6)  If a designated employer does not comply with an order within the period stated in it, or does not object to that order in terms of section 39, 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.--(1)  A designated employer may object to a compliance order by making written representations to the Director-General within 21 days after receiving that order.

(2)  If the employer shows good cause at any time, the Director-General may permit the employer to object after the period of 21 days has expired.

(3)  After considering the designated employer's representations and any other relevant information, the Director-General--

1. may confirm, vary or cancel all or any part of the order to which the employer objected; and
2. must specify the time period within which that employer must comply with any part of the order that is confirmed or varied.

(4)  The Director-General must, after making a decision in terms of subsection (3), and within 60 days after receiving the employer's representations, serve a copy of that decision on that employer.

(5)  A designated employer who receives an order of the Director-General must either--

1. comply with that order within the time period stated in it; or
2. appeal against that order to the Labour Court in terms of section 40.

(6)  If a designated employer does not comply with an order of the Director-General, or does not appeal against that order, the Director-General may apply to the Labour Court for that order to be made an order of the Labour Court.

40.   Appeal from compliance order.--(1)  A designated employer may appeal to the Labour Court against a compliance order of the Director-General within 21 days after receiving that order.

(2)  The Labour Court may at any time permit the employer to appeal after the 21-day time limit has expired, if that employer shows good cause for failing to appeal within that time limit.

(3)  If the designated employer has appealed against an order of the Director-General, that order is suspended until the final determination of--

1. the appeal by the Labour Court; or
2. any appeal against the decision of the Labour Court in that matter.

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.--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 must, in addition to the factors stated in section 15, take into account all of the following:

1. The extent to which suitably qualified people from and amongst the different designated groups are equitably represented within each occupational category and level in that employer's workforce in relation to the--
   1. demographic profile of the national and regional economically active population;
   2. pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees;
   3. economic and financial factors relevant to the sector in which the employer operates;
   4. present and anticipated economic and financial circumstances of the employer; and
   5. the number of present and planned vacancies that exist in the various categories and levels, and the employer's labour turnover;
2. progress made in implementing employment equity by other designated employers operating under comparable circumstances and within the same sector;
3. reasonable efforts made by a designated employer to implement its employment equity plan;
4. the extent to which the designated employer has made progress in eliminating employment barriers that adversely affect people from designated groups; and
5. any other prescribed factor.

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 recommendation.--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 refer the employer's non-compliance to the Labour Court.

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.--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.

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 the performance or purported performance of any function provided for in this Act or any act or omission of any person or body 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.

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.