The Quiet Rise of the Employment Equity Amendment Bill

On 20 July 2020, notice was given that the Minister of Employment and Labour intends to introduce the Employment Equity Amendment Bill to the National Assembly in upcoming months. The proposed Bill seeks to amend the Employment Equity Act 55 of 1998 in several significant respects. One such amendment is the introduction of enforceable sectoral numerical goals and targets to ensure equitable representation of designated groups in businesses in certain economic sectors.

These sectoral numerical goals and targets will be introduced by the application of the newly inserted Section 15A. This section allows the Minister to define certain national economic sectors and establish “headcount targets” that must be met by the designated employers in these sectors. The Minister will set these targets by issuing a Draft Notice which outlines the numerical targets for the 6 occupational levels in these businesses. These numerical targets will be identified by taking into consideration particular criteria which will be outlined in yet to be published regulations to the Act. Once the Draft Notice has been published, any interested parties will have 30 days to comment on the notice and voice any concerns they may have regarding the numerical targets to be met. The Minister will consider the submissions made by the public and, thereafter, a Final Notice will be published containing the Minster’s final decisions. How the Bill intends to “enforce” the numerical goals and targets appears to be by way of a system of compliance notices and fines.

Assumedly, the introduction of prescribed numerical targets by the Minister is intended to quicken transformation within the defined economic sectors and to remove the possibility for employers to evade equitable representation by setting low self-imposed goals and targets in their EEA13 Employment Equity Plans. However, it must be noted that the practical implications of this section are far reaching. Should this section be brought into force, employers in the defined economic sectors will no longer set their own numerical targets, in line with the Economically Active Population. Employers in these sectors may be faced with targets which are unattainable, and which do not take into consideration the financial circumstances of individual businesses or the prevailing demographics of the area in which they operate. The Bill provides that the Minister will identify national economic sectors and set numerical targets which ought to be met by employers within these sectors. However, it does not provide for varying demographics amongst South African Provinces.

This amendment appears to be in stark contrast with the policy decisions which should be made in light of the COVID-19 Pandemic. The outbreak, and accompanying Lockdown Regulations, has catalysed a recession in both the National and International Economies. For the foreseeable future it seems highly unlikely that economies will stabilise – undermining the ability of businesses to stay afloat and forcing an upward trajectory in the unemployment rate. Adding further red tape to the operation of business is likely to aggravate what is already a volatile state of affairs. Were these amendments to be fast-tracked, it is highly unlikely that employers will reach these targets – if they make any appointments in upcoming years at all. In light of the serious consequences the Amendment Bill may have for various industries in South Africa, the Notice publishing the Bill has not received the attention it ought to have received. Instead it has faded into obscurity as most businesses, and other social partners, attempt to recover from the ongoing COVID-19 Pandemic. May this have been the intention?