EMPLOYMENT EQUITY 1 THE EEA IN ITS CURRENT

EMPLOYMENT EQUITY 1

THE EEA IN ITS CURRENT FORM • • Designated employers commit to “numerical goals” contained in their employment equity plans (Section 20), which are drawn up in consultation with employees (Section 16 – 17). The Director-General is empowered to conduct a review to determine whether an employer is complying with the EE (Section 43) (and this naturally includes compliance with its own employment equity plan) (Section) 43(2)(c) A review may result in a written “recommendation” to an employer (Section 44), setting out inter alia: (a) the steps which the employer must take in connection with its employment equity plan or the implementation of that plan; and (b) the period within which those steps must be taken. If an employer fails to comply with such a “recommendation”, the Director- General may approach the Labour Court for relief. • • • Where an employer cannot justify its failure to comply with a “recommendation”, it is open to the Labour Court to impose a fine in accordance with Schedule 1 of the EEA (Section 45 The Schedule 1 fines, in respect of a failure to comply with a “recommendation”. These range from the greater of R 1. 5 million or 2% of turnover (for a first offence) to the greater of R 2. 7 million or 10% of turnover (where there have been 4 previous contraventions in respect of the same provision within three years). In assessing whether an employer is implementing its employment equity plan in compliance with the EEA, the Director-General (and the Labour Court) may take a number of factors into account (Section 42 - These include the extent to which suitably qualified people from different designated groups are represented within the various occupational levels of the workforce, in relation to the national and regional demographic profile; and reasonable steps the employer has taken towards implementing its employment equity plan). 2

3 EEA CHANGES TO COME • The Amendment Bill will alter the current Act in the following manner • Whereas currently numerical goals are determined by an employer, the Minister will be empowered to set numerical targets for a sector; (The proposed new section 15 A ) • When an employer sets its numerical goals in its employment equity plan, these must comply with any sectoral target set by the Minister (The proposed new Section 20(2 A). and • In assessing compliance under Section 42 of the EEA, the Director-General (or Labour Court) may now take into account whether or not an employer has achieved any sectoral target set by the Minister under Section 15 A. (The proposed new Section 42(a. A). • The Director-General must have conducted a review of an individual employer (in terms of Section 43), • The Amendment Bill will alter the current Act in the following manner • Whereas currently numerical goals are determined by an employer, the Minister will be empowered to set numerical targets for a sector; (The proposed new Section 15 A ) • When an employer sets its numerical goals in its employment equity plan, these must comply with any sectoral target set by the Minister (The proposed new Section 20(2 A). and • In assessing compliance under Section 42 of the EEA, the Director-General (or Labour Court) may now take into account whether or not an employ has achieved any sectoral target set by the Minister under Section 15 A. (The proposed new Section 42(a. A). • The Director-General must have conducted a review of an individual employer (in terms of Section 43); “ “ The question is whether this will survive a Constitutional challenge or not. The DEL’s current position is to push sectors’ targets that emanate from sector BBBEE Codes as the targets over 3 to 5 years. Let’s discuss. 3