The president of South Africa, Cyril Ramaphosa, signed the Employment Equity Amendment Act No. 4 of 2022 (EEA) into law on 6 April 2023, with it being gazetted on 14 April 2023. However, the Act did not come into effect immediately. President Ramaphosa has proclaimed the effective date of these amendments to be 1 January 2025.
EEA in South Africa: Main Amendments to Date
The amendment empowers the Minister of Employment and Labour to set specific numerical targets for 18 designated sectors ("sectoral targets"). Once established, employers within these categories must comply with these targets. The final version of the sectoral targets is yet to be confirmed by the Minister.
The Department of Employment and Labour (DoEL) released draft regulations on 12 May 2023 and again on 1 February 2024 for public feedback, which outline sectors and propose specific targets for designated groups.
It's unclear if the February 2024 draft will become the official version or if further public consultation or another draft will be required.
Other Notable Amendments in the South African EEA
The Act not only established sector targets, but also revised several key provisions. These amendments will significantly influence how employers must implement and adhere to the Employment Equity Act (EEA).
Redefinition of "Designated Employer": The definition of "designated employer" is changed to exclude employers with fewer than 50 employees, regardless of their annual turnover. This change means smaller employers are no longer subject to certain affirmative action obligations like developing and submitting employment equity plans.
Certificates of Compliance: Smaller employers, despite not being required to submit employment equity reports, can still obtain a certificate of compliance under section 53 of the EEA.
People with Disabilities: The definition of "people with disabilities" is updated to align with the United Nations Convention on the Rights of Persons with Disabilities, providing a more inclusive definition. It will include people with intellectual or sensory impairments which may substantially limit their entry into or advancement in employment.
Psychological Testing: The requirement for psychological testing to be certified by the Health Professionals Council of South Africa (HPCSA) has been removed.
State Contracts: Compliance with sectoral numerical targets is now a condition for being eligible for state contracts; employers must demonstrate compliance or provide reasonable justification for non-compliance to obtain a compliance certificate.
Employment Equity Reports: The specific date for annual submission of employment equity reports has been removed, with the Minister given the power to regulate this process.
Consultation with Trade Unions: The amendments clarify that where there is a representative trade union, consultation must be with the union, not directly with employees, regarding employment equity plans and reports.
Labour Inspectors' Powers: The power of labour inspectors to secure compliance undertakings from designated employers is restored.
Compliance Orders: The Minister can now make regulations concerning the service of compliance orders.
Given these amendments, it's crucial for employers to ensure compliance with the EEA. Partnering with an Employer of Record (EOR) that prioritises compliance with local legislation can be an essential part of due diligence to mitigate risks.