On Thursday, 28 November 2024, the Government Gazette published a proclamation by the President of the Republic of South Africa confirming the commencement of the Employment Equity Amendment Act 4 of 2022.
On 1 January 2025, the following sections and schedules of the Employment Equity Amendment Act will come into operation:
1.1 The definition of "designated employer" no longer includes "an employer who employs fewer than 50 employees but has a total annual turnover that is equal to or above the applicable annual turnover of a small business in terms of the Schedule 4". Schedule 4, containing the turnover thresholds applicable to designated employees, has been deleted. This means that employers who employ fewer than 50 employees (irrespective of turnover) 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, reporting obligations and the submission of employment equity reports to the Department of Employment and Labour ("DoEL").
1.2 The definition of "people with disabilities" has been substituted with "includes 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, and 'persons with disabilities' has a corresponding meaning". This is an enhanced or expanded definition that aligns with the international definition in the United Nations Convention on the Rights of Persons with Disabilities, 2007.
1.3 The definition of "sector", meaning "an industry or service or part of any industry or service" has been inserted.
2. Section 8 has been amended to remove the requirement for the Health Professionals Council of South Africa ("HPCSA") to certify psychological testing and similar assessments used for assessing employees.
3. Section 14 has been repealed. It provided that:
"14. Voluntary compliance with this Chapter. An employer that is not a designated employer may notify the Director-General that it intends to comply with this Chapter as if it were a designated employer."
4. Section 15A is an entirely new section that introduces sectoral numerical targets. The Minister of Employment and Labour ("the Minister") is given the authority to set numerical equity targets for specific sectors of the economy. This allows for tailored transformation goals in industries such as education, finance, and agriculture.
5. Section 16, which deals with the consultation obligations of employers, has been amended to clarify that, if there is a representative trade union in a workplace, a designated employer need only consult with this union and not with its employees.
6. Section 20, which deals with employment equity plans, has been amended to provide that the "numerical goals set by an employer in terms of subsection (2) must comply with any sectoral target in terms of section 15A that applies to that employer." A designated employer is therefore required to set numerical targets in line with the applicable sectoral targets set by the Minister by regulation. The proclamation is silent on when the final regulations will be published.
7. Section 21 has been amended to remove a specific date for annual submissions of employment equity reports. The amendment empowers the Minister to make regulations with regard to the requirements of employers in submitting their employment equity reports and the timing of the submission.
8. Section 27 has been amended to provide that:
"Every designated employer, when reporting in terms of section 21(1), must submit a statement, as prescribed, to the National Minimum Wage Commission on the remuneration and benefits received in each occupational level of that employer's workforce"
The section previously required this information to be submitted to the Employment Conditions Commission established by section 59 of the Basic Conditions of Employment Act.
9. Section 36 has been amended to provide labour inspectors with the authority to request and obtain a written undertaking from a designated employer, within a specified period, to comply with sections 36 (a), (b), (c), (f), (h), (i) or (j), i.e. to, amongst other things, consult with employees, conduct an analysis, publish its report and assign responsibility to one or more senior managers.
10. Section 37 has been amended to empower the Minister to make regulations regarding the manner of service of compliance orders on designated employers in relation to the affirmative action aspects of the Employment Equity Act. Section 37 further provides that a labour inspector may serve a compliance order on a designated employer if the employer has failed to comply with sections 16, 17, 19, 22, 24, 25 or 26 of the EEA. It notably excludes sections 15 and 15A. This means if an employer fails to comply with sections 15 or 15A (the sections relating to sectoral numerical targets) it may not be penalised by means of a compliance order.
11. Section 42 has been amended to include section 42(aA). This empowers the Minister to assess "whether the employer has complied with a sectoral target as set out in terms of section 15A applicable to that employer". Section 53, which deals with state contracts, has been amended to provide 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. The minister must also be satisfied that:
11.1 the employer has submitted a report in terms of section 21 of the Employment Equity Act;
11.2 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
11.3 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.
12. Section 64A, which provided for the amendment of annual turnover thresholds in Schedule 4 of the Act, has been deleted (as there are no longer any applicable turnover thresholds).
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