Parliament has announced the extension of the public comment period on the Employment Equity Amendment Bill until 5 March 2021.

Legal firm ENSAfrica says that the bill is important as it seeks to amend a number of clauses in the current Employment Equity Act (EEA) in an effort to speed up transformation.

“The main thrust of the amendments is to increase substantive compliance with the objects and provisions of Chapter III of the EEA which deal with affirmative action measure,” it said.

“According to the Commission for Employment Equity, the implementation of the affirmative action provisions in the EEA, has been slow.

“The introduction of these amendments, if unaltered by public comment, could see a move away from the historically ‘tick-box’ approach to employment equity compliance towards an increased pace of transformation.”

ENSAfrica said that the Department of Employment and Labour’s compliance audits, which will now be underway for the reporting season which ended on 15 January 2021, could be the last of their kind.

“Should the amendments in the bill be enacted unchanged, we envisage closer scrutiny into the substance of the employment equity plan and report and a harsher approach to the sufficiency of designated employers’ efforts to transform their workforce.

“With this in mind, designated employers are encouraged to take a critical look at their transformation efforts and ready themselves for the proposed amendments.”

The key changes are outlined in more detail below.

Designated employers

If the Bill is enacted, employers who employ fewer than 50 employees (regardless of their turnover) will no longer fall within the definition of “designated employer” and will not be required to comply with Chapter III of the Act relating to affirmative action.

People with disabilities

The definition of “people with disabilities” will also be amended in line with the definition in the UN Convention on the Rights of Persons with Disabilities, 2007 which reads, “includes people who have a long-term or recurring physical, mental, intellectual or sensory impairment which, in the interaction with various barriers, may substantially limit their prospects of entry into, or advancement in, employment and ‘persons with disabilities’ has a corresponding meaning”.

Psychological testing

The bill removes the requirement that physiological testing and similar assessments of employees be certified by the Health Professions Council of South Africa.

Numerical targets

As it stands, designated employers, when determining numerical goals, have regard to the demographic profile of the economically active population.

The Bill introduces a provision that empowers the Minister of Employment and Labour to determine sectoral numerical targets.

The minister may identify national economic sectors and, after consulting the National Minimum Wage Commission for the purposes of ensuring the equitable representation of suitably qualified people from the designated groups at all occupational levels, set numerical targets for any national economic sector. These targets may differ across occupational levels, sub-sectors, regions or based on other relevant factors.

The amendment if effected will require that an employer, in setting its numerical goals, comply with any sector target. Employers’ employment equity plans must also address the numerical targets referred to above.

Trade union consultation

Where a representative trade union is present in the workplace, a “designated employer” must consult only with such union and not its employees or their nominated representatives, in relation to the preparation and implementation of its employment equity report.

State contracts

The Bill requires a certificate to be issued to employers, confirming their compliance with the provisions of the EEA, as a prerequisite for contracting with an organ of state.

The minister may only issue such a certificate once the minister is satisfied that the employer has complied with any numerical targets applicable to the employer, or if it has failed to do so, the employer has a reasonable ground to justify such non-compliance; and within the previous three years there has been no finding by the Commission for Conciliation, Mediation and Arbitration or a court that the employer breached the prohibition on unfair discrimination in terms of the Act or failed to pay the minimum wage

Powers of inspectors or any person acting on behalf of a labour inspector

The scope of a labour inspector’s power has been extended to request and obtain a written undertaking from a designated employer requiring it to prepare an employment equity plan.

Commentary by Lauren Salt (executive) and Jessie Moore (candidate legal practitioner) at legal firm ENSAfrica.