On the 1st of February 2024, the Minister of Employment and Labour introduced the new draft regulations (February 2024 Regulations), addressing sectoral numerical targets under the Employment Equity Act, 1998 (EEA), which is still pending implementation since the amendments were signed into law on April 6, 2023.
This announcement follows previous iterations of draft regulations, including the May 2023 Regulations, and the subsequent Solidarity Settlement Agreement between the South African Government and trade union Solidarity, formalised as a court order in October 2023.
Key Changes in the latest Draft Regulations:
Methodology and Guidance:
- The latest draft Regulations provide detailed methodology behind the proposed targets, considering both national and regional demographic profiles, as well as sector-specific workforce dynamics.
- Designated employers are now provided with clearer guidance on target implementation, including setting annual numerical goals aligned with workforce profiles and applicable economically active populations (EAP).
Clarity on EAP Selection:
- The regulations clarify EAP selection for employers operating across provinces or sectors, resolving previous ambiguities. In these circumstances, a designated employer may choose the EAP of the province in which majority of their employees perform their functions. Similarly, if the employer operated in more that one sector, the employer should choose the economic sector with the majority of employees.
Affirmative Action Principles:
- Regulation 4 restates key affirmative action principles in line with the EEA and judicial interpretation, derived from the Solidarity Settlement Agreement.
Changes in Target Structure:
- The latest draft Regulations consolidate targets into single targets per sector per occupational level, differentiating only by gender and removing further breakdowns by population groups (African, Coloured, Indian and White). The target is specifically related to “Designated Groups” which is defined in the Employment Equity Act as: Black people (African, Coloured and Indians), women and people with disabilities who are citizens of South African by birth or descent. Alternatively, black people who became citizens of South Africa by naturalisation before 27 April 1994 or after 26 April 1994 and who would have been entitled to acquire citizenship’s by naturalisation prior to that date but were precluded due to apartheid policies.
Implications for Employers:
- Once the amendments to the Employment Equity Act are in effect and the final regulations are published, designated employers will have the autonomy to align their Employment Equity Plans with the sectoral targets when setting their numerical goals and annual targets.
- It’s important to note that the prescribed sectoral targets are set for a period of 5 years and only applicable to the top four occupational levels (Top Management, Senior Management, Middle Management / Professionally Qualified as well as Junior Management / Skills Technical) as well as disabled people. This doesn’t however preclude employers from setting targets for the lowest two occupational levels (Semi-Skilled and Unskilled) as the expectation of aligning these two levels with the applicable EAP will remain.
- Even though the proposed sector targets only distinguish between gender and not the various designated groups, employers will be required to still set goals for each individual designated group in their EE plans.
Opportunities for Input:
- We encourage all employers to provide feedback and input on proposed targets, especially regarding sector-specific challenges such as skills shortages. Its important to note that compliance with these targets will be crucial to businesses who will be conducting business with the state and will therefore need to apply for Employment Equity Compliance Certificates in the future.
- Comments are due by May 2, 2024 and can be submitted to the following contacts: innocent.makwarela@labour.gov.za, christina.lehloko@labour.gov.za or julian.mohale@labour.gov.za or they can be hand delivered to Laboria House, 215 Francis Baard Street, Employment Equity, Pretoria.
