02 May 2023

Employment Equity Amendments - Unintended Consequences?

David Pattle

The State President has now signed the Employment Equity Amendment Bill into law. This particular legislation's “effective date” has yet to be gazetted. It is expected that this date will be September of this year. In this piece, Dave Pattle highlights many of the changes and poses some significant questions that may impact the practical application of this statute.

These amendments have been a long time coming. What these amendments introduce has been exhaustively covered given the particularly long time we have waited for them to be signed off.

At this stage, we still do not know what the effective date is. Many have assumed it will be September of 2023. The DEL appears to have confirmed that is the date. Subject to the significant number of legal challenges that are likely to follow, we think this is the likely date of implementation.

Many employers have deliberately chosen to have shorter plans to coincide with this date, knowing full well that come to this date whatever plan you do have, would have to be shelved even if it has yet to expire.

 

Some of the topics that will undoubtedly be debated in our courts, pubs and over a cup of tea will be:

• Targets vs quotas – are these the same things? An important question in light of the fact that the Act itself prohibits the implementation of quotas (which section has not been repealed).
• To what extent will merit still matter in light of the pressure to reach targets and secure government certification of compliance with Employment Equity Legislation?
• Does the government have the capacity to properly administer the certification process?
• Notwithstanding the Minister’s right to set sector targets, these targets still have to be gazetted to allow for public comment. How far off are we really, before sector targets are applied?
• Given that employers with fewer than 50 employees irrespective of turnover need not comply with affirmative action and can secure the necessary certification far more easily than designated employers. Are there not now unintended consequences? Consider fronting, subcontracting and the possibility of corruption to name a few.
• Given the amendments compel an employer to only consult with a representative trade union and no one else, what does this mean for non-unionised employees and what impact will this have on the equity “conversation” as a whole?
• Still on the committee/union, in light of sector targets being imposed by the minister, what does this mean in respect of consultation on the equity plan itself?

 

These are clearly only some of the issues that will be receiving attention over the balance of the year on the equity front.

Until then, employers need to continue to meet the objectives of their existing plans, yet have half an eye on what may come in September.

 

Should you require any assistance in respect of training your employment equity committees, please get in touch - we will be happy to assist.

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