OCTOBER 2019 – SOUTH AFRICA
EMPLOYMENT EQUITY AMENDMENT BILL 2018 UPDATE
It is important that employers note the following:
Employment Equity Amendment Bill 2018 expected to be tabled soon
In a statement delivered by the Commission for Employment Equity (CEE) on Wednesday, 9 October, the CEE said that the bill is expected to be tabled in parliament before the end of October 2019 to further establish and increase transformation in the workplace.
The Employment Equity Amendment Bill, 2018 and the Draft Employment Equity Regulations, 2018 were published for public comment for 60 days from 21 September 2018 to 20 November 2018.
The amended Employment Equity Bill would empower the Labour Minister to regulate sector-specific employment equity targets and promulgate Section 53 of the Act to enable the issuing of Employment Equity compliance certificate as a prerequisite for accessing state contracts.
A summary of the proposed changes include:
The definition of a “designated employer” changes by removing paragraph (b) of the definition: “(b) a person who employs fewer than 50 employees but has a total turnover that is equal to or above the applicable annual turnover of a small business in terms of Schedule 4 of this Act”.
In short, this means that all employers with less than 50 employees will be excluded from Chapter 3 of the Employment Equity Act, No. 55 Of 1998 (Affirmative Action) and will no longer have to submit an annual Equity plan.
The following definition is inserted after the definition of “Minister”: National Minimum Wage Commission means the Commission established in terms of the National Minimum Wage Act, 2017 (Act No of 2017)
The following definition is inserted after the definition of “Republic”: sector means an industry or service or part of any industry or service
The following definition is inserted after the definition of “suitably qualified person”: “the state means-
- A national or provincial department as defined in the Public Finance Management Act, 1999 (Act 1 of 1999);
- A municipality or municipal entity as defined in the Local Government Municipal Systems Act of 2000 (Act 32 of 2000);
- A constitutional institution as defined in the Public Finance Management 1999 (Act, 1999 (Act 1 of 1999);
- A provincial legislature;
- Any entity listed in Schedule 2 and 3 of the Public Finance Management Act of 1999 (Act 1 of 1999).”
Section 14 of the principal Act (Voluntary Compliance) is deleted. This means that in terms of section 53 (State Contracts), employers with less than 50 employees will no longer be able to participate in a government tender, however, small employers can still be issued with a Certificate of Compliance to enable them to do business with Government, provided they comply with Chapter 2 of the EE Act (Unfair Discrimination) and the National Minimum Wage Act.
A new subsection, section 15A has been added to Chapter 3, Section 15 (Affirmative action measures) of the Act. Section 15A (Establishment of sectoral targets) has been added to specify numerical targets for any sector or part of a sector. This means:
- The Minister may publish a notice in the Gazette identifying national economic sectors for the purposes of the EE Act, having regard to any relevant code contained in the Standard Industrial Classification of all Economic Activities published by Statistics South Africa.
- The Minister may, by notice in the Gazette, set numerical targets for any sector or part of a sector identified. The notice issued may set different numerical targets for different occupational levels or regions within a sector or on the basis of any other relevant factor.
The Minister may also issue regulations prescribing the criteria to be considered in determining a numerical target.
Section 53 (State Contracts) of the EE Act is amended by the insertion of a new subsection (6) which states:
- “The Minister may only issue a certificate in terms of subsection (2) if the Minister is satisfied that the employer:-
(a) has met any sectoral targets in terms of section 15A that applies to it or has provided reasonable grounds, as contemplated by section 42(4), justifying its failure to comply;
(b) has submitted a report in terms of section 21;
(c) has not been found by the CCMA or a court within the previous twelve months to have:-
(i) breached the prohibition on unfair discrimination in Chapter 2; or
(ii) failed to pay the national minimum wage in terms of the National Minimum Wage Act, 2017 (Act of 2017).”
To view the Employment Equity Amendment Bill 2018, follow the link
Contact our legislation team at email@example.com if you require any additional information.
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