Delay In the Promulgation of The Amendments to The Employment Equity Act

Our team has been attending the Employment Equity Roadshow in preparation for the filing of Employment Equity Reports for the 2022/23 year.  As anticipated, the amendments which were assented by the President on 14^th April 2023 are likely not to be promulgated this year.

The reasons given for the delay are:

• The public comments received on the draft sectoral targets are currently being consolidated and the final sector targets, together with the regulations containing the new templates (including the new template for formulating Employment Equity Plans), will be gazetted once the amendments have been proclaimed by the President. The DOL confirmed that this is unlikely to happen before the end of 2023 and that we will likely see the changes come into effect next year only.
• There are several legal challenges to the Amendments.  These will probably not be resolved this year. 
  • The DA, with several political parties and Civic Organizations, is challenging the sectoral targets as posing an absolute barrier to minorities in the country.
  • The Black Business Forum is challenging the removal of turnover as a requirement to comply with the EE Act, which they regard as giving white business a loophole which will encourage them to limit employment to less than 50 employees and to encourage them to unbundle into business units which do not need to comply.
• Solidarity concluded a settlement with the Minister of Labour in June 2023 after filing a court challenge at the Labour Court.  The Settlement reached was:
  1. “Affirmative action is a coherent packet of measures, of a temporary nature in line with the Constitution, aimed specifically at correcting the position of members of a target group as defined in the Employment Equity Act [55 of 1998 (EEA)] in the workplace, in order to obtain effective equality”.
  2. Affirmative action shall be applied in a nuanced way, as embodied in this agreement, and the economically active population statistics will only be one of many factors that will be taken into account in the compliance analysis of affirmative action in any workplace.
  3. No absolute barrier may be placed upon any employment practices affecting any persons from any group.
  4. For the purpose of preparing and implementing an Employment Equity Plan and reporting a compliance analysis of affirmative action in any workplace, the following criteria must be taken into account:
     1. inherent requirements of the job
     2. the pool of suitably qualified persons
     3. the qualification, skills, experience and the capacity to acquire, within a reasonable timeframe, the ability to do the job
     4. the rate of turn-over and natural attrition within a workplace

This settlement agreement has to be gazetted into the regulations and again, this is unlikely to be finalised this year.

This means that the status quo will continue and thus small employers with less than 50 employees and their annual turnover exceeding the threshold as stipulated in Schedule 1 of the Act, will have to continue with their EE compliance and thus submit the EEA2 and EEA4 Reports for 2023. A valid Employment Equity Plan is required to be in place.

Your Employment Equity Facilitator will guide you on the recommendations made at the Roadshow in your next Employment Equity Committee Meeting.