The main objective of the amendments introduced by the Bill is to empower the Minister of Labour and Employment (Minister) to, amongst other things, identify and set employment equity numerical targets for each national economic sector. The purpose of the numerical targets is to ensure equitable representation of suitably qualified people from historically disadvantaged groups based on race, gender, and disability at all occupational levels in the workplace. This is provided for in section 15A of the amendments to the Employment Equity Act 55 of 1998 (EEA).
The Bill also seeks to introduce an amendment to section 20 of the EEA, which deals with the preparation and contents of employment equity plans. The amendment seeks to align the designated employer’s employment equity plan with the sectoral targets set by the Minister.
The Minister will be required to, and prior to implementing the sectoral targets, publish the proposed numerical targets to provide relevant stakeholders an opportunity to comment thereon for a period of 30 days.
Once the numerical targets are finalised and published, designated employers would have toensure that the numerical targets, as reflected in their employment equity plans, are in line with the applicable sectoral targets.
Compliance will, therefore, be measured by considering whether a designated employer has met the sectoral targets established by the Minister. This is outlined in terms of the proposed amendment to section 42 of the EEA.
It is unclear from the Bill whether an employer has the discretion to deviate or seek an indulgence from the Minster in instances where it was unable to meet the sectoral numerical targets, despite its various efforts to do so. This may be as a result of a scarcity of skills required within a specific designated group or having no vacancy in which to appoint a person from a designated group to be able to meet its targets.
However, guidance from the prevailing legal position informs that both the formulation and the implementation of the employment equity plan can never render any target – whether determined by an employer or the Minister – a quota. As such, and for example, defined justifiable deviations from the employment equity plan’s numerical target and proof that such deviations were, in fact, applicable can assist employers in justifying, and defending, non-compliance. Likewise, enforcement cannot force an employer to apply numerical targets as quotas lest be faced with a compliance order and ultimate fine.
It remains to be seen how compliance officers and inspectors will approach this in practice pursuant to the amendment being enforced into law.