- PURPOSE
The Employment Equity Amendment Bill, 2020 ( “the Bill “), seeks to amend the Employment Equity Act, 1998 (Act No. 55 of 1998) ( “the Act “). The amendments have the purpose of-
- empowering the Minister of Labour ( “the Minister “) to determine sectoral numerical targets for the purpose of ensuring the equitable representation of suitably qualified people from designated groups (blacks, women and persons with disabilities) at all occupational levels in the workforce;
- enhancing the administration of the Act, including the implementation of section 53 thereof, which provides for the issuing of a certificate by the Minister confirming an employer’s compliance with Chapter II, or Chapters II and III, of the Act, as the case may be, in relation to the conclusion of State contracts;
- removing the requirement for psychological testing and similar assessments of employees to be certified by the Health Professions Council of South Africa ( “the Council “); and
- removing a provision empowering non -designated employers to notify the Director – General of the Department of Labour ( “the Director -General “) that they intend to voluntarily comply with Chapter III of the Act as if they were a designated
2. CLAUSE BY CLAUSE ANALYSIS
- Clause 1
Clause 1 seeks to amend section 1 of the Act in order to-
- amend the definition of a “designated employer” by deleting paragraph
- , which classified employers with fewer than 50 employees who meet a turnover threshold determined in Schedule 4 to the Act as designated This is intended at reducing the regulatory burden on small employers in relation to regulatory provisions dealing with the implementation of Chapter III of the Act;
- introduce a definition of the “National Minimum Wage Commission” in order to align with the National Minimum Wage Act, 2018 (Act 9 of 2018);
- substitute the definition of “people with disabilities” in order to align with the definition in the UN Convention on the Rights of Persons with Disabilities, 2007;
- insert a definition of “sector” in order to ensure certainty concerning the application of section 15A dealing with sector numerical EE targets; and
- delete the definition of “serve or submit” since the intention is to allow the Minister to prescribe the methods of service and submission of documents by
2.2 Clause 2
Clause 2 seeks to amend section 8 of the Act in order to exclude the requirement that psychological testing and similar assessments of employees must be certified by the
Council. The Council does not have the capacity or procedures to undertake this certification. The validity of these tests will
continue to be subject to evaluation by the Labour Court, in the event of a dispute.
2.3 Clause 3
Clause 3 seeks to repeal section 14 of the Act, which allowed non -designated employers to notify the Director – General of their intention to comply voluntarily with Chapter HI of the Act. This is intended to reduce regulatory burden on small employers in implementing Chapter III of the Act because all employers will obtain a Certificate of Compliance under section 53 of the Act without having to submit an EE Report.
2.4. Clause 4
- Clause 4 of the Bill seeks to insert section 15A in the Act to empower the Minister to-
- identify national economic sectors for the purposes of the administration of the Act; and
- determine numerical targets for these
- The sectoral targets set may differentiate between occupational levels, sub – sectors, regions or other relevant
- The Minister is required to consult with the Employment Equity Commission on the proposed sectors and sectoral targets and publish any proposals for public
2.5 Clause 5
Clause 5 seeks to amend section 16 of the Act in order to clarify the consultation process between the designated employer and its employees on matters of consultation contained in section 17 of the Act. This amendment is intended to provide certainty and minimise confusion in relation to which parties the designated employer must consult with in matters for consultation as outlined in section 17 of the Act. Where there is a representative trade union, the designated employer must only consult with that trade union.
2.6 Clause 6
Clause 6 seeks to amend section 20 of the Act in order to link the sectoral employment equity targets to the numerical targets set by designated employers in the employment equity plans of their workplaces.
2.7 Clause 7
Clause 7 seeks to amend section 21 of the Act in order to empower the Minister to make regulations with regard to the manner in which employers are required to submit employment equity reports.
2.8 Clause 8
Clause 8 seeks to amend section 27 of the Act in order to transfer the functions of the Employment Conditions Commission in respect of reporting and monitoring of disproportionate income differentials to the National Minimum Wage Commission.
2.9 Clause 9
Clause 9 seeks to amend section 36 of the Act in order to allow a labour inspector to secure a written undertaking from a designated employer on the preparation of an employment equity plan in terms of section 20 of the Act.
2.10 Clause 10
Clause 10 seeks to amend section 37 of the Act in order to empower the Minister to make regulations with regard to the manner of service of compliance orders on employers.
2.11 Clause 11
Clause 11 seeks to amend section 42 of the Act in order to clarify that a designated employer’s compliance with its obligations to implement employment equity may, in addition to being measured against the demographic profile of either the national or the regional economically active population, be measured against an employer’s compliance with the sectoral numerical targets set by the Minister in terms of the proposed section 15A.
2.12 Clause 12
- Section 53 of the Act, which has not yet been operationalised, provides that State contracts may only be issued to employers that have been certified as being in compliance with their obligations under the
- Clause 12 seeks to amend section 53 of the Act by adding a new subsection (6) in order to clarify that the Minister may only issue a compliance certificate to an employer if-
- the employer has complied with any applicable sectoral targets or has raised a reasonable ground for non -compliance;
- the employer has submitted its most recent employment equity report; or
- within the previous three years, the employer has not been found to have breached the prohibition on unfair discrimination or paid wages below the level of the minimum
2.13 Clause 13
Clause 13 seeks to repeal section 64A of the Act, which empowered the Minister to amend, by notice in the Gazette, the total annual turnover thresholds in Schedule 4 to the Act in order to counter the effect of inflation.
2.14 Clause 14
Clause 14 seeks to repeal Schedule 4 to the Act, which contains the total annual turnover thresholds contemplated in paragraph (b) of the definition of “designated employer” as contained in section 1 of the Act and referred to in section 64A of the Act.
2.14 Clause 14
Clause 14 seeks to repeal Schedule 4 to the Act, which contains the total annual turnover thresholds contemplated in paragraph (b) of the definition of “designated employer” as contained in section 1 of the Act and referred to in section 64A of the Act.
2.15 Clause 15
Clause 15 seeks to delete footnotes 4 and 7 to the Act, respectively, as they are no longer necessary.
2.16 Clause 16
Clause 16 provides for the short title and commencement of the Act.