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Chinese South Africans
Court ruling impacts on workplace skills plans
Thu, 19 Jun 2008 10:56
The Skills Portal has acquired further clarification on the Pretoria High Court’s order that Chinese South Africans, who were classified as “coloured” during the apartheid era, are to be included in the definition of “black people” for purposes of the Employment Equity Act and the Broad-Based Black Economic Empowerment Act.
We have confirmed that the application was made only for the two acts mentioned, and there was no application made in terms of the Skills Development Act.
However, the principle that has been confirmed, namely: that those Chinese South Africans resident in South Africa before 1994, and their descendants, who were disadvantaged under apartheid legislation by the classification as “coloured”, should receive the same redress as other groups classified as black, does then equally apply to the skills development legislation.
What would the relevance be for skills development?Firstly, emphasis must be given that the order does not apply to all Chinese persons, only those who either were resident in South Africa before 1994, and their descendants.
Employers will need to clarify this information for employees of Chinese extraction. Equally employees who are foreign African nationals, not South African, and not resident in South Africa before 1994, are not included in the definition of “black” for reporting purposes.
In addition to reporting per population groups for Employment Equity purposes, employers report to Setas in population group classification in their annual Workplace Skills Plans and Workplace Skills Plan Annual Training Reports. (Both due by the 30 June 2008).
Employers report on training planned and training completed by population group, job category and for some Setas by Organising Framework of Occupations, to achieve refund of the Mandatory Grant - currently a 50% refund of levies paid. Similar information is required for additional discretionary grant funding.
In addition, whereas employers pay a 1% of payroll skills development levy to SARS, for non-South African employees, they should pay 2% of that payroll.
Seta statistics are compiled by the Department of Labour into a report to determine progress against the National Skills Development Strategy Objectives and indicators.
One of the Principles of the National Skills Development Strategy is to “Accelerate Broad Based Black Economic Empowerment and Employment Equity. (85% Black, 54% women and 4% people with disabilities).
Under Objective 2 Promoting and accelerating quality training for all in the workplace Lever 2.1 requires that the Workplace Skills Plan is judged against criteria which include “meets EE + BBBWW and charter compliance criteria”.
Objective 4 Assisting designated groups, including new entrants to participate in accredited work, integrated learning and work-based programmes to acquire critical skills to enter the labour market and self-employment is self explanatory and addresses Learnerships, bursary grants, internship grants and study support to learners to enter and progress through the workforce.
Therefore, the decision of the High Court would appear to have implications that will flow through skills development because it is clear from the Principles of the National Skills Development Strategy that the strategy provides the route to the achievement of the transformation intended by the Employment Equity and Broad Based Black Economic Empowerment Acts.
Our grateful thanks to Willem van der Colff of ENS Edward Nathan Sonnenbergs for his assistance with information on the High Court order.