The Employment Equity Amendment Act 4 of 2022 (“Amendment Act”) was published on 13 April 2023 with the effective date to be proclaimed by the President. The Amendment Act has now come into effect on 1 January 2025 following the proclamation by the President by way of notice in the Government Gazette on 12 November 2024.
The purpose of the Amendment Act is to introduce amendments to the Employment Equity Act 55 of 1998 (“EEA”). In terms of the Amendment Act, the following amendments are noteworthy for South African employers:
1. People with disabilities
The definition of “people with disabilities” has been expanded to include intellectual and sensory impairments.
2. Designated employer
The definition of a designated employer has been reduced to those who employ more than 50 employees.
3. Section 15A
Section 15A provides for the Minister of Employment and Labour (“Minister”) to identify national economic sectors, and after consulting with the sectors, to set numerical employment equity targets “for the purpose of ensuring the equitable representation of suitably qualified people from designated groups at all occupational levels in the workforce” by notice in the Government Gazette. Such notice must afford interested parties 30 days to comment. The Minister may set different numerical targets for different categories of employees within the economic sector. It is the responsibility of the employer to ensure that the goals set out in the employment equity plan are in line with the sectoral numerical targets set by the Minister in terms of section 15A.
4. Annual employment equity report deadline
Previously, designated employers were required to submit their annual employment equity report to the Director-General on the first working day of October and if this was not possible, such employer was required to notify the Director-General in writing providing reasons for not being able to do so, by the last working day in August of that same year. The Amendment Act has removed references to these specific timelines and now provides that a designated employer must submit a report to the Director General once every year “on such date and in such manner as may be prescribed” and where this is not possible, the designated employer must notify the Director General “in the prescribed manner and period giving reasons for its inability to do so”.
5. Labour inspector’s powers
Labour inspectors are empowered to serve compliance orders and may request and obtain a written undertaking from a designated employer to comply with employment equity obligations within a specified period if the inspector has reasonable grounds to believe that the employer has failed to adhere to same, including in respect of the failure to prepare an employment equity plan.
6. Compliance certificates
All employers who intend on entering contracts with the State to supply goods or services must obtain a compliance certificate. The employer must meet the following requirements:
- meet the section 15A sectoral numerical targets or provide a reasonable explanation for failing to do so;
- submit the annual employment equity report in terms of section 21 of the EEA;
- there must have been no findings of unfair discrimination against the employer by the Commission for Conciliation, Mediation, and Arbitration (“CCMA”) or a court in the past 12 months; and
- there are no CCMA awards against the employer for failing to pay the national minimum wage in the past 12 months.
The Amendment Act will ensure that entities contracting with the State are compliant with the EEA by setting requirements that must be met in order to obtain a certificate of compliance. In addition, the sectoral targets will ensure that employment equity concerns are addressed in a manner that is suitable for each sector instead of utilising a blanket approach for each sector where certain sectors may require more stringent targets to adequately ensure equitable employment.
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