There are three significant changes to the Employment Equity Amendment Act 4 of 2022 (the Act) which is expected to become effective on 1 September 2023. These changes are to the advancement of transformation and affirmative action through the introduction of section 15A.
The introduction of section 15A is intended to promote historically disadvantaged individuals based on race, gender, and disability at all occupational levels in the workforce of designated employers, by way of enhancing fair representation across multiple industries.
Section 15A in the Act provides that:-
15A. (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 15A therefore empowers the Minister of Employment and Labour in consultation with the Employment Equity Commission, to determine numerical targets in respect of national economic sectors including industries, services, or part of any industry or service. From a designated employer’s perspective, the introduction of section 15A brings about these three crucial changes:-
the numerical goals set by a designated employer in its employment equity plan in terms of section 20 of the Act must comply with any sectoral targets determined by the Minister in terms of section 15A, to the extent that the sectoral target applies to that designated employer;
the assessment of compliance with employment equity by a designated employer in term of section 42 of the Act, will also consider whether that designated employer has complied with the sectoral target that applies to it as set out in terms of section 15A;
the designated employer must be certified as being in compliance with its obligations under the Act in order to be issued a state contract in terms of section 53 of the Act. Consequently, the Minister may only issue a compliance certificate to an employer if:-
I. the employer has complied with any applicable sectoral targets or has raised a reasonable ground for non -compliance;
II. the employer has submitted its most recent employment equity report; and
(c) 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 wage.
In light of the above, all designated employers are encouraged to update their current employment equity plans so as to comply with section 15A.
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