BRENTWOOD

2023-07-25

Quick Questions: What is happening with Employment Equity right now?

Is the Employment Equity Amendment Act operative yet?
No, a date for the amendments to take effect has not get been gazetted.

What is the delay?
The president has signed the Employment Equity Amendment Act, but the Regulations to the Employment Equity Amendment Act are not yet finalised.  Once they are finalised and gazetted the Amendment Act will operate.

Does the Employment Equity Amendment Act fall away until the amended regulations are Gazetted?
Yes.  The Amendment Act is signed but until the regulations are gazetted there is no implementation date.

What changes for your company while you wait for the Amendment Act to activate?
As you read this – nothing has changed, and the Employment Equity process and plans you are currently involved with carry on as normal.

What if your normal Employment Equity Plan expires this year. Do you need to formulate and consult a new Plan?
Yes. The usual rules apply.  When the Amendment Act comes in you will need to develop a new 5-year plan.

Under the Amendment Act do you still decide how to get to your own targets?
Yes, but the targets may be set for you depending on which sector you operate in. While the targets may be set for you, you still decide on your year-by-year plan to achieve the targets.

What happens with the 2023 Employment Equity reports?
Carry on as normal until the Regulations decides otherwise. The deadlines for you EEA2 and EEA4 is still 01 October 2023 to 15 January 2024.

Will the reporting period change?
It is possible.

How do you know if you are a designated employer:
You employ 50 or more employees (including fixed terms contracts of longer than three months)

How does the new Act affect your BBBEE verification?
It doesn’t.

If you don’t meet the numerical targets, will it affect your BBBEE verification?
No.  BBBEE verification looks at the current employees, managers and disabled people. Your verification agency will check if you have submitted your Employment Equity Report and Income Differential Report if you are a designated employer. Whether or not your targets are met forms no part of your BBBEE verification.

If you don’t meet the sectoral numerical targets, will you forfeit my Employment Equity Certificate?
Not necessarily, but there will have to justifiable grounds for non-compliance.

What are the justifiable grounds for failing to meet the sectoral numerical goals?
- Insufficient recruitment opportunities,
- insufficient promotion opportunities,
- insufficient target individuals from the designated groups with the relevant qualifications, skills and experience,
- mergers and acquisitions,
- transfers, and
- impacts on business economic activities.

Do you have to get an Employment Equity Certificate?
No, only if you do business with the state.

If you already have a contract with the state, will you lose it if you don’t get an Employment Equity Certificate?
Possibly. There is provision to cancel or refuse contracts based on the Employment Equity Certificate.

If you employ less than 50 employees, can you still get an Employment Equity Certificate?
Yes.  You still don’t have to submit the annual reports.

How does the CCMA and Labour Court affect your Employment Equity Certificate?
If there are arbitration awards and/or court orders against the for a breach of any prohibition on unfair discrimination and/or failure to pay minimum wages in the previous 12 months, it would be grounds to deny the issuing of an Employment Equity Certificate.

Can you opt out of complying with the Sectoral Numerical Targets
No.

How long will you have to meet the sectoral numerical targets?
5 years, but there needs to be an annual Employment Equity certificate issued.  The details of whether or not compliance needs to take place in 1 year are not defined.

What are the targets if you are not in one of the 18 industries?
Carry on as normal. Set your own numerical goals and plan to reach them.

The sectoral numerical targets don’t refer to semi or unskilled employees. How do they fit into your Employment Equity Plan?
They are outside the sectoral targets, so carry on as normal. Set your own numerical goals and plan to reach them.

Can you dismiss various races and genders to achieve your numerical target?
No.

How involved does the union get?
If the union is a representative (majority) trade union, then it will become your Employment Equity Committee. Where there is a representative trade union the designated employer only consults with that trade union, and not with its employees.

How long is the employment equity plan under the Amendment Act?
5 years.

Can you enforce the sectoral targets unilaterally?
No. There still needs to be consultation with the committee the preparation and implementation of its employment equity plan and its analysis of the degree of underrepresentation of people from designated groups in various occupational levels in the workforce, the timetable within which this is to be achieved, and the strategies intended to achieve the goals. There is still a continuous annual plan within the 5-year plan.

Who is classified as a designated employee?
The definition hasn’t changed.
Black (African, Coloured and Indian) people, women and people with disabilities who:
- Are citizens of South Africa by birth or descent; or
- Became citizens of South Africa by naturalisation before 27 April 1994; or after and who would have been entitled to acquire citizenship by naturalisation prior to that date but who were precluded by apartheid policies.

What has been issued?
- The draft sectoral targets
- The draft regulations for Employment Equity Analysis

When will the Act be implemented?
The draft regulations need to be finalised and gazetted. In those regulations will be the implementation date.  It is doubtful that the date would be 2023.

Can you volunteer your company to be a designated employer even if you employ less than 50 employees?
No.

If you need assistance with your Employment Equity compliance call Mark Kerruish (061-434-0970/mark@brentwood.co.za) or Michele Jefferies (082-445-5227/michele@brentwood.co.za)