Notable amongst the proposed amendments are the following:
- The deletion from the definition of “designated employer” of paragraph (b) which provides for an employer who employs fewer than 50 employees; but has a total annual turnover that is equal to or above the turnover of a small business as set out in schedule 4 to the Act. If this amendment is effected employers who employ fewer than 50 employees, (regardless of their turnover) will no longer fall within the definition of “designated employer” and will not be required to comply with Chapter III of the Act relating to affirmative action. This proposed amendment will be welcomed by smaller employers and seeks to eliminate the regulatory burden on these employers.
- The definition of “people with disabilities” is to be amended in line with the definition in the UN Convention on the Rights of Persons with Disabilities, 2007 which reads, “includes people who have a long-term or recurring physical, mental, intellectual or sensory impairment which, in the interaction with various barriers, may substantially limit their prospects of entry into, or advancement in, employment and ‘persons with disabilities’ has a corresponding meaning”.
- The removal of the requirement for certification of psychological testing and other similar assessments of an employee by the Health Professions Council of South Africa or any other body authorised by law. This proposed amendment relieves the Council of its certification obligation in recognition of its lack of capacity and procedures to discharge this obligation.
- The most notable amongst the proposed amendments is the introduction of a provision which empowers the Minister of Employment and Labour to determine sectoral numerical targets. In terms of the proposal the Minister may identify national economic sectors and, after consulting the National Minimum Wage Commission for the purposes of ensuring the equitable representation of suitably qualified people from the designated groups at all occupational levels, set numerical targets for any national economic sector. The targets may differ across occupational levels, sub-sectors, regions or based on other relevant factors. If this provision comes into force this will give rise to a significant change. To date designated employers when determining numerical goals frequently have regard to the demographic profile of the economically active population. The amendment if effected will require that an employer, in setting its numerical goals, comply with any sector target which the Minister may have determined and which applies to the employer.
- Where a workplace has a representative trade union representing its employees, the employer must consult with the trade union only and not its employees or their nominated representatives, in relation to inter alia the preparation and implementation of its employment equity report.
- The scope of a labour inspector’s power has been extended to request and obtain a written undertaking from a designated employer requiring it to prepare an employment equity plan.
- Where an employer makes an offer to conclude an agreement with any organ of state to provide services or supplies i.e. state contracts and requests a certificate from the Minister that it has complied with its obligations under the Act, the Minister, in terms of the proposed amendment, may only issue such certificate if inter alia the Minister is satisfied that the employer has complied with any numerical targets applicable to the employer, or if it has failed to do so, the employer has a reasonable ground to justify such non-compliance; and within the previous three years there has been no finding by the CCMA or a court that the employer breached the prohibition on unfair discrimination in terms of the Act or failed to pay the minimum wage.
The Bill indicates a robust attempt on the part of Government to address the slow pace of transformation within many South African workplaces.