Employment Equity

Employment Equity​

 

South Africa’s history of structural and political exclusion on the basis of race and its negative consequences are well known.

The primary purpose of the EEA is to promote the right to equality and to ensure that all employees receive equal opportunities and are treated fairly by their employers.

A core focus of the EEA is the implementation of employment equity and affirmative action to redress the effects of historical discrimination.

The EEA applies to all employees and employers who operate in South Africa, except the South African National Defence Force, National Intelligence Agency and South African Secret Service. While the EEA applies to all employers (excluding those listed above), sections of the EEA (sections 12 – 27) only apply to designated employers.

The Amendment Act brings about a change to the definition of “designated employer” to restrict the application of these sections to a reduced group of employers and relieve some of the administrative burden on smaller employers.

The EEA prohibits discrimination against an employee, directly or indirectly, in any employment policy or practice on the grounds of: Race Gender Pregnancy Marital status Family responsibility Ethnic or social origin Colour Sexual orientation Age Disability Religion HIV status Conscience Belief Political opinion Culture Language Birth

Smaller employers are positively affected by a change in the definition of “designated employer”. The definition is amended to exclude employers who employ fewer than 50 employees, irrespective of their annual turnover. As a result of the amendment, smaller employers are not required to comply with the obligations of a designated employer relating to affirmative action, including the development and implementation of employment equity plans and reporting and submission of employment equity reports to the Department of Employment and Labour. This will significantly relieve the administrative burden on these employers.

While smaller employers will not be required to develop and submit employment equity reports, they will nevertheless be entitled to obtain a certificate of compliance under section 53 of the EEA. In this regard, smaller employers will be expected to demonstrate that there has been no finding by the Commission for Conciliation, Mediation and Arbitration (CCMA) or a court within the previous 12 months that the employer breached the prohibition on unfair discrimination in the EEA and the CCMA has not issued an award against the employer in the previous 12 months for failing to pay the minimum wage in terms of the National Minimum Wage Act, 2018 (Act 9 of 2018).

The definition of “people with disabilities” has been substituted to align with the definition in the United Nations Convention on the Rights of Persons with Disabilities, 2007. The amended definition includes within its meaning, “people who have a long-term or recurring physical, mental, intellectual or sensory impairment which, in interaction with various barriers, may substantially limit their prospects of entry into, or advancement in, employment”. This enhanced definition accords with a more expansive international understanding of what constitutes disabilities.

In 2014 the EEA was amended to make it a requirement that psychological testing and similar assessments be certified by the Health Professionals Council of South Africa (HPCSA). The amendment was aimed at addressing a concern that without the relevant and formal certification, such tests were essentially partial and could result in exclusionary practices, particularly in a country as culturally diverse as South Africa. Subsequent to the amendment, the capacity of the HPCSA to fulfil the requirement was legally challenged. The latest amendment removes the requirement for HPCSA certification of psychological testing and similar assessments.

The new section 15A introduces sectoral numerical targets. The purpose of this addition is to ensure the equitable representation of people from designated groups (historically disadvantaged groups of people based on race, gender and disability) at all occupational levels in the workforce. The amendment will empower the Minister of Employment and Labour (Minister) to identify national economic sectors for purposes of the administration of the EEA and set numerical targets for each of these sectors.

The numerical targets focus on top and senior management as well as professionally qualified and skilled levels and people with disabilities. The targets are tabulated according to economic sector based on race (i.e. African, Coloured, Indian and White) and gender (i.e. male and female) with both national and provincial percentages indicated. Separate targets are outlined on each of these racial and gender categories. The category “Black” includes African, Coloured, and Indian persons. There may be further guidance on the percentages from the Department of Employment and Labour in due course.

The national targets will apply to designated employers operating nationally while the respective provincial targets will apply to employers operating in the relevant province. A designated employer may not apply both the national and provincial targets.

The Minister has not published targets for the semi-skilled and unskilled levels. However, designated employers are required to take into account the economically active population demographics in respect of these levels (either nationally or provincially) in their employment equity plans in terms of section 20(2)(C) of the EEA.

The amendments introduce a definition for “sector” that means “an industry or service or part of any industry or service”. Eighteen economic sectors have been identified

An amendment to section 20 of the EEA (which deals with employment equity plans) links the sectoral numerical targets to the numerical targets set by a designated employer in its employment equity plan. A designated employer is now required to set numerical targets in line with the applicable sectoral targets set by the Minister. An amendment to section 42 aligns the assessment of compliance with employment equity with the new requirements relating to sectoral numerical targets. The Department of Employment and Labour’s Deputy Director for Employment Equity announced that once the employment equity amendments take effect, employers will be expected to comply with their own respective employment equity plan targets on an annual basis towards achieving the five-year sectoral targets published by the Minister. In this regard, employers must be guided by the information available on the economically active population.

An amendment to section 53 of the EEA dealing with state contracts provides that the Minister may only issue a compliance certificate if the employer has complied with the sectoral numerical targets set by the Minister for the relevant sector, or has demonstrated a reasonable ground for non-compliance, among other compliance requirements, including: • the submission of a report in terms of section 21 of the EEA; • that there is no finding by the CCMA or a court within the previous 12 months that the employer breached the prohibition on unfair discrimination; and • the CCMA has not issued an award against the employer in the previous 12 months for failing to pay the minimum wage in terms of the National Minimum Wage Act 9 of 2018. A certificate issued in terms of section 53 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 of the EEA, whichever period is longer.

Should you need assistance with Employment Equity Compliance, you are most welcome to submit the form available for completion.