New EEA Draft Regulations

Employment Equity Act: Key takeaways on the new Draft Regulations on proposed Sectoral Numerical Targets

Written By of Cowan-Harper-Madikizela Attorneys

On 1 February 2024, the Minister of Employment and Labour, Mr Thulas Nxesi, published the amended proposed sectoral numerical targets contemplated in section 15A of the Employment Equity Act, 1998 (‘EEA’), which is open for public comment for a period of 90 days (i.e. 2 May 2024).

The proposed sectoral numerical targets have been published after a settlement agreement was concluded between the Department of Employment and Labour (‘DoEL’) and Solidarity in June 2023. This Agreement sought to clarify the implementation of affirmative action and further demystify and discredit the negative perceptions which had been created by the current Employment Equity Amendment Act as well as the previously issued sector target draft regulations.

The new proposed targets also follow after much public criticism and debate concerning the previous draft regulations released in May 2023.

The Key Takeaways

The new draft regulations have been amended substantially from the previous draft regulations in that they now contain an explanation of how the proposed five-year targets are to be determined and they also provide more guidance for designated employers on how the targets are to be implemented in the workplace. In addition, the new draft regulations identify several factors which can be taken into consideration when assessing whether there have been justifiable or reasonable grounds for not complying with the set targets.

The draft regulations state that when setting the numerical targets for each of the 18 economic sectors, the DoEL has considered the workforce profiles of each of the various sectors based on information submitted by employers in their 2022 Employment Equiry reports to the DoEL. This is a welcomed addition as the previous regulations had only considered the demographic profiles of the national/provincial economically active population (‘EAP’).

The new draft regulations provide that designated employers are required to set annual numerical goals, which will be measured against the five-year sectoral targets. However, the annual numerical goals must be set taking into account the workforce in relation to the EAP within a specific sector.

The question of whether a designated employer should apply the demographic profile of the national or provincial EAP depends on the scope of the designated employer’s operations, i.e. whether it operates nationally or within a particular province. Employers who have operations in more than one province may choose the provincial EAP demographic where the majority of their employees are based. Employers must however choose either the national or provincial demographic for the 5-year period and cannot use both at the same time or change between them.

In the instance where a designated employer operates in multiple sectors, then such an employer must elect the EAP demographic of the sector which accounts for most of its employees.

There will no longer be separate targets prescribed nationally or provincially for each population group at every occupational level per sector. Each occupational level will now have a single target for each sector, with the only difference being made between males and females respectively. Importantly, the sectoral targets now apply to ‘designated groups’ (people of colour, women and people living with disabilities) equally and are no longer broken down into the previous population groups of African, Coloured, Indian, White, and Black.

Despite the sectoral targets focusing on top and senior management, professionally qualified, skilled and employees with disabilities, designated employers are encouraged to also cater for semi-skilled and unskilled employees by implementing the sectoral targets as per normal.

Conclusion

The new draft regulations are tipped to be received positively and are a step in the right direction for the commencement of the much-anticipated amendments. Employers and employees are encouraged to submit their representations and comments on the revised sectoral targets before 2 May 2024.

As a result of the amended draft regulations, employers may also have to reconsider their employment equity plans. CHM's Employment team is available to assist in this regard.

Gael Barrable

Gael Barrable
Partner in Employment

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