The Employment Equity Act requires that all designated employers draw up an
employment equity plan with clear numerical targets for the employment and
promotion of people from designated groups and show the strategy that is to be
followed to achieve these.
It also requires that clear evidence of progress made in the achievement of
these targets be demonstrated at the time of assessment and reporting.
Affirmative action falls under the Employment Equity Act and it is used to make
sure that people from designated groups are afforded equal opportunities and are
equally represented in all occupational categories.
The proposed amendments to the Employment Equity Act?s policies include
changes to the definitions of designated employers and designated groups.
Designated employers, as per the current Act are defined as employers with 50
or more workers, or whose annual turnover is more than a specified amount (as set
out in Schedule 4 of the Act). These annual turnover thresholds have been increased
in line with inflation since the first promulgation of the Act in 1998.
Designated groups include black people (African, Indian and coloured), women
and people with disabilities. The proposed change in definition now limits this group
of people to those who were South African citizens before the 1994 democratic
elections and those who would have been entitled to citizenship (but due to
apartheid were not citizens at that time), and their descendants. This effectively
excludes foreign nationals who have become citizens after April 1994.
Another substantial change is the change in reference from "occupational
categories and levels? to "occupational levels? only. This is to force employers to
address the underrepresentation of designated groups within "occupational levels? in
their workplace rather than in occupational categories alone.
There are also substantial changes regarding compliance, procedures,
enforcement and penalties relating to employment equity planning, implementation
Without doubt one of the most focused-on proposals to the labour legislation is
that equity targets be based on national and regional demographics. With critics
calling it "social engineering?, "unconstitutional? and "apartheid-like policy?, this
regulation is seen by many to threaten the rights of large regionally based minority
groups such as the coloureds in the Western Cape and the Indians in KwaZulu Natal.
In response to the many questions this proposed regulation raised, there are now
guidelines for when national and regional demographics should be used. Companies
who employ 150 or more people should use the national demographic profile as a
"guide? when recruiting and promoting top and senior management and professionals.
The average regional and national demographic profile is to be applied to skilled,
semiskilled and unskilled workers.
Companies employing less than 150 employees but who meet the sector-
determined annual turnover threshold are to use the regional demographic profile for
their skilled, semiskilled and unskilled employees.
Although employers are not required to follow the demographic profiles strictly
but can set targets based on what is practically achievable, the regulation fails to
However, this regulation will have significant impact in a province such as the
Western Cape in which coloured people make up 49% of the economically active
population but in some cases will only have access to 9% (their national population
percentage) of the top and senior management and professional positions.
Some reports state that if promulgated, this regulation will force certain minority
population groups to relocate to ensure they are afforded equal opportunities and
employers may have to "import? African workers to meet their national demographic
It is important to note that the media hype surrounding this aspect of the
Employment Equity Amendment Act (as contained in the draft regulations) can be
attributed to intense politicking around the recent elections and there is therefore a
need to clarify.
The Employment Equity Act, both as it presently stands and as per the proposed
amendment Act states that a designated employer must have an equity plan that
aims to establish a workforce that represents the national and regional demographic
profile, across all occupational levels. However the Act allows an employer to present
evidence in support of not achieving this profile; evidence such as an absence of
suitably qualified candidates or economic constraints.
Perhaps it is BUSA?s (Business Unity South Africa) agreement to amendment 42,
which pertains to the above discussion point that should dispel some of the
sensationalism around this topic.
BUSA has however objected to certain provisions in the amendment Act that add
further administration responsibilities and liabilities to businesses, which will further
impede their economic growth and the subsequent creation of employment
It is important to note that the draft regulations are currently being addressed
by a special NEDLAC task team and it is unsure what the final outcome will be around
the matter of how to apply the national and / or regional demographics.
This article was written by PMI (a member of the Adcorp Holdings
PMI is an accredited Private Higher Education Training Provider with a
national footprint and an expansive range of services across various sectors.
For further information click on the