SUMMARY OF THE EMPLOYMENT EQUITY AMENDMENT ACT No. 4 of 2022
The Employment Equity Amendment Act, 2022 has come into operation, introducing several key amendments to the Employment Equity Act of 1998.
These amendments aim to:
- Enhance the implementation and enforcement of employment equity.
- Ensure compliance with sectoral targets for equitable representation.
- Streamline reporting and compliance processes.
- Strengthen the powers of labour inspectors.
- Provide clearer criteria for the issuance of compliance certificates.
The changes are designed to promote fair treatment and equal opportunities in the workplace, addressing disparities and ensuring a diverse and representative workforce.
These changes aim to enhance the framework for promoting equitable representation in the workplace for designated groups.
SOME QUICK NOTES ON THE CHANGES
Commencement:
Whilst the Amendment Act took effect on 12 November 2024, as published in the Government Gazette, the amendments come into effect on 1 January 2025, allowing for a transition period for employers to adjust to the new requirements.
Definitions
The amendment modifies the definition of “designated employer”. A “designated employer” now means—an employer who employs 50 or more employees.
The portion- “ (b)an employer who employs fewer than 50 employees but has a total annual turn-over that is equal to or above the applicable annual turn-over of a small business in terms of the Schedule 4 of this Act, has been deleted as has Schedule 4.
All designated employers now are those employers who employ 50 or more employees.
The amendment introduces new definitions, such as “National Minimum Wage Commission” and “sector”.
Identification of sectoral numerical targets
The Minister is now empowered to identify sectoral numerical targets to ensure equitable representation of suitably qualified individuals from designated groups across various occupational levels.
Reporting Requirements:
Designated employers are required to submit annual reports to the Director-General, with the specific date and manner prescribed by the Minister. The previous requirement to report on the first working day of October has been removed, allowing for more flexibility in compliance. Additionally, employers must now report on remuneration and benefits across different occupational levels to the National Minimum Wage Commission.
Compliance and Enforcement:
The Act introduces compliance orders that can be issued by labour inspectors if employers fail to comply with the provisions of the Act. The Minister may only issue certificates of compliance if employers meet the numerical targets set forth. This ensures that compliance is closely monitored and enforced.
Amendments to Specific Sections:
- Section 8 has been amended to streamline reporting requirements.
- Section 14 has been repealed, which previously dealt with the establishment of the Employment Equity Commission.
- A new section, 15A, has been inserted to allow the Minister to set sectoral numerical targets, considering various factors such as industry classification.
- Section 20 has been amended to ensure that the numerical goals set by employers align with the sectoral targets established.
Repeals and Deletions:
Several sections and footnotes from the original Act have been repealed, including the repeal of section 64A and Schedule 4. This streamlining of the Act aims to remove outdated provisions and clarify the legislative framework. Thus, the following are no longer evident in the amended Act:
Repeal of Section 64A:
Section 64A of the Employment Equity Act allowed the Minister to adjust the annual turnover thresholds in Schedule 4 to account for inflation. The Minister could do this by issuing a notice in the Gazette after consulting with the Commission. This Section, has, however, been repealed.
Repeal of Schedule 4:
As per the above, the following Schedule 4 has been repealed and therefore, the following thresholds are no longer relevant in law:
BELOW IS A MORE DETAILED ACCOUNT OF THE AMENDMENTS
DEFINITIONS
- Section 1 is hereby amended—
(a) by the deletion of paragraph (b) of the definition of ‘‘designated employer’’;
(b) by the insertion, after the definition of ‘‘Minister’’, of the following definition:
“National Minimum Wage Commission’ means the Commission established in terms of section 8 of the National Minimum Wage Act, 2018 (Act No. 9 of 2018);’’;
(c) by the substitution for the definition of ‘‘people with disabilities’’ of the following definition:
‘‘ ‘people with disabilities’ includes people who have a
long-term or recurring physical , mental, intellectual or sensory
impairment which, in interaction with various barriers, may substantially
[limits] limit their prospects of entry into, or advancement in, employment,
and ‘persons with disabilities’ has a corresponding meaning;’’;
(d) by the insertion, after the definition of ‘‘Republic’’, of the following
definition:
‘‘ ‘sector’ means an industry or service or part of any industry or
service;’’; and
(e) by the deletion of the definition of ‘‘serve’’ or ‘‘submit’’.
REPEAL OF SECTION 14 OF ACT 55 OF 1998
- Section 14 of the principal Act is hereby repealed
014 Voluntary compliance with this Chapter
Pending amendment: S. 14 to be repealed by s. 3 of Act No. 4 of 2022 w.e.f. 1 January, 2025
INSERTION OF SECTION 15A IN ACT 55 OF 1998
The following section is hereby inserted after section 15 of the principal Act:
15.A ‘‘DETERMINATION OF SECTORAL NUMERICAL TARGETS
(1) The Minister may, by notice in the Gazette, identify national economic sectors for the purposes of this Act, having regard to any relevant code contained in the Standard Industrial Classification of all Economic Activities published by Statistics South Africa.
(2) The Minister may, after consulting the relevant sectors and with the advice of the Commission, 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 Gazette set numerical targets for any national economic sector identified in terms of subsection (1).
(3) A notice issued in terms of subsection (2) may set different numerical targets for different occupational levels, sub-sectors or regions within a sector or on the basis of any other relevant factor.
(4) A draft of any notice that the Minister proposes to issue in terms of subsection (1) or subsection (2) must be published in the Gazette, allowing interested parties at least 30 days to comment thereon.’’
SECTION 20 – AMENDED BY THE INSERTION AFTER SUBSECTION (2) OF THE FOLLOWING SUBSECTION:
‘‘(2A) 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.’’.
- see full text
Pending amendment: Sub-s. (2A) to be inserted by s. 6 of Act No. 4 of 2022 w.e.f. 1 January, 2025
AMENDMENT OF SECTION 21
Section 21 of the principal Act is hereby amended—
(a) by the substitution for subsection (1) of the following subsection:
‘‘(1) 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.’’;
(b) by the deletion of subsections (3) and (4); and
(c) by the substitution for subsection (4A) of the following subsection:
‘‘(4A) An employer that is not able to submit a report to the Director-General within the period prescribed in terms of subsection (1) must notify the Director- General in the prescribed manner and period giving reasons for its inability to do so.’’.
see full text
Sub-s (1),(3) and (4) Date of commencement: 1 January, 2025.
AMENDMENT OF SECTION 27
Section 27 of the principal Act is hereby amended—
(a) by the substitution for subsection (1) of the following subsection:
‘‘(1) 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.’’; and
(b) by the substitution for subsections (3), (4) and (5) of the following subsections, respectively:
‘‘(3) The measures referred to in subsection (2) may include—
(a) collective bargaining;
(b) compliance with sectoral determinations made by the Minister in terms of section 51 of the Basic Conditions of Employment Act and the national minimum wage set in terms of the National Minimum Wage Act, 2018 (Act No. 9 of 2018);
(c) applying the norms and benchmarks set by the National Minimum Wage Commission;
(d) relevant measures contained in skills development legislation; or
(e) other measures that are appropriate in the circumstances.
(4) The National Minimum Wage Commission must research and investigate norms and benchmarks for proportionate income differentials and advise the Minister on appropriate measures for reducing disproportional differentials.
(5) The National Minimum Wage Commission may not disclose any information pertaining to individual employees or employers.’’.
- see full text
27 INCOME DIFFERENTIALS AND DISCRIMINATION
Sub-s (1), (3), (4) and (5) Date of commencement: 1 January, 2025
AMENDMENT OF SECTION 36
Section 36 of the principal Act is hereby amended—
(a) by the substitution in subsection (1) for the words preceding paragraph (a) of
the following words:
‘‘A labour inspector may request and obtain a written undertaking from a designated employer to comply with paragraph (a), (b), (c), (f), (h), (i) or (j) within a specified period, if the inspector has reasonable grounds to believe that the employer has failed to—’’; and
(b) by the insertion in subsection (1) after paragraph (b) of the following
paragraph:
‘‘(c) prepare an employment equity plan as required by section 20;’’.
- see full text
Sub-S (1) and Para (c) Date of commencement: 1 January, 2025
AMENDMENT OF SECTION 37
Section 37 of the principal Act is hereby amended—
(a) by the substitution for subsection 1 of the following subsection:
‘‘(1) A labour inspector may serve a compliance order on a designated employer in the prescribed manner if that employer has failed to comply with section 16, 17, 19, 22, 24, 25 or 26 of this Act.’’.
(b) by the substitution in subsection (2) for the words preceding paragraph (a) of
the following words:
‘‘A compliance order contemplated in subsection (1) must be issued by a labour inspector and must set out—’’.
- see full text
Sub-s(1) and (2) Date of commencement: 1 January, 2025.
AMENDMENT OF SECTION 42
Section 42 is hereby amended by the insertion in subsection (1) after paragraph (a) of the following paragraph:
‘‘(aA) whether the employer has complied with a sectoral target as set out in terms
of section 15A applicable to that employer;’’.
- see full text
Pending amendment: Para. (aA) to be inserted by s. 11 of Act No. 4 of 2022 w.e.f. 1 January, 2025.
AMENDMENT OF SECTION 53
Section 53 of the principal Act is hereby amended by the addition of the following
subsection:
‘‘(6) The Minister may only issue a certificate in terms of subsection (2) if the
Minister is satisfied that—
(a) the employer has complied with a numerical target set in terms of section 15A
that applies to that employer;
(b) in respect of any target with which the employer has not complied, the
employer has raised a reasonable ground to justify its failure to comply, as
contemplated by section 42(4);
(c) the employer has submitted a report in terms of section 21;
(d) there has been no finding by the CCMA or a court within the previous 12 months that the employer breached the prohibition on unfair discrimination
in Chapter 2; and
(e) 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, 2018 (Act No. 9 of 2018).’’.
REPEAL OF SECTION 64A OF ACT 55 OF 1998
- Section 64A of the principal Act is hereby repealed.
- see full text
064A. Amendment of annual turnover thresholds in Schedule 4.
(Pending amendment: S. 64A to be repealed by s. 13 of Act No. 4 of 2022 w.e.f. 1 January, 2025.)
REPEAL OF SCHEDULE 4 TO ACT 55 OF 1998
Schedule 4 to the principal Act is hereby repealed.
- see full text
Pending amendment: Sch. 4 to be repealed by s. 14 of Act No. 4 of 2022 w.e.f. 1 January, 2025.