Unless you’re an employment law specialist, the chances of your picking up a copy of the Employment Equity Act (EEA) for some light reading anytime soon are slim. But if you are a designated employer submitting an annual employment equity (EE) report, you need to at least understand the loaded meaning behind the legalise.
Designated employers will have to meet a number of criteria to be issued with an annual EE compliance certificate to enable them to do business with the state.
In terms of the amendments to the EEA that were signed into law in April by President Cyril Ramaphosa, designated employers will need to:
- submit an annual EE report; comply with their annual EE targets towards the five-year sector EE target;
- comply with the national minimum wage (NMW) or have an exemption granted not to pay the NMW (previous 12 months); and
- show they have no CCMA unfair discrimination awards against them (previous 12 months).
This entails completing a lot of paperwork. To do that, employers will not only have to get to know the EEA, but they will also have to understand their obligations under it. Two upcoming free webinars, hosted by Moonstone Compliance, will enable them to do exactly that.
Andrea de Jongh, Moonstone Compliance’s privacy governance and employment law specialist, will present the webinars.
The webinars will take place from 10am to 12.30pm on 23 August and 6 September, respectively.
Found in translation
De Jongh says the first webinar, titled “Getting to know the EEA”, will focus on helping people understand how to read the law, how to know what to do when you must create an EE plan, report on it, and remove forms of unfair discrimination from the workplace.
Click here to watch a video introducing the webinar.
Before taking up her role at Moonstone Compliance, De Jongh was actively involved with the corporate employment law and privacy governance functions of several industry-leading companies. She says she often finds that the level of maturity when it comes to understanding the language used in employment law is very low.
“When people talk about needing to remove unfair discrimination from the workplace, they don’t understand what unfair discrimination is. Can discrimination ever be fair? It almost seems to be a contradiction in terms.”
Examples of other terms that often need clarifying are “designated groups”, “numerical goals and targets”, “affirmative action”, “barrier analysis”, and “differentiation”.
“People will think their employer is discriminating against them, but the employer may just be differentiating, making decisions based on work requirements. Sometimes it’s okay to distinguish between people, but when does that distinction between people become wrong – objectionable or reprehensible? All of that is written into the EEA,” De Jongh says.
What is a designated employer?
The webinars are open to anyone who would like to join, but De Jongh says any employee of a designated employer (the EEA obliges a designated employer to consult with its employees) will find the sessions especially empowering.
De Jongh says, for now, any business that has more than 50 employees is deemed to be a designated employer.
“As simple as that. We still don’t know what will happen in September (when the amendments to the EEA are set to come into effect); whether there will be additional sectoral targets.”
Questions around quotas
According to the Department of Employment and Labour, the main objectives of the EE amendments are to reduce the regulatory burden for small employers; to empower the Minister of Employment and Labour to regulate the sector-specific numerical EE targets; to promulgate section 53; and to strengthen compliance, including the issuing of EE compliance certificates.
An amendment to section 53 of the EEA dealing with state contracts provides that the Minister may issue a compliance certificate only if the employer has complied with the sectoral numerical targets set by the Minister for the relevant sector or has demonstrated a reasonable ground for non-compliance.
It was an objection to this amendment that saw the Democratic Alliance lead a mass protest through the streets of Cape Town on 26 July.
On 2 August, Masilo Lefika, the Department of Employment and Labour’s deputy director for employment equity, told stakeholders at an EE workshop in Benoni that designated employers would still have the power to consult employees and self-regulate their annual EE targets towards achieving the five-year sector EE target (as regulated by the Minister).
Lefika said some employers were crying foul that they were being subjected to quotas.
“Legislation does not promote quotas. Employers are given room to set their annual targets to achieve the goal of a five-year target,” he said.
Lefika said if employers failed to achieve their own annual EE targets, the law permitted employers to raise a justifiable ground for non-compliance.
“As employers, you are protected,” he added.
Some of the justifiable grounds to be considered for failure to comply with the annual EE targets are:
- insufficient recruitment opportunities;
- insufficient promotion opportunities;
- insufficient target individuals from the designated groups with the relevant qualifications, skills and experience;
- a CCMA/court order;
- the transfer of business; and
- a merger/acquisition.
Understanding obligations under the EEA
Smaller employers (less than 50 employees) will not be required to develop and submit EE reports, but they will be entitled to obtain a certificate of compliance under section 53 of the EEA.
De Jongh says the main objective of the second webinar will be to provide an understanding of the legal obligations the EEA imposes on a designated employer or any employer who chooses to report on the progress made towards equitable representation in its workforce.
Click here to watch a video introducing the webinar.
She says while the motivation, from a legal perspective, may not be there for smaller companies to work towards equitable representation, it will be to their benefit – and that of society at large – if they work towards establishing a representative workforce.
“The ultimate goal of employment equity is to create a safe workplace, free from all forms of discrimination and as representative as possible of how our country looks.”
She explains that if you take a snapshot of your company, for example, of all the employees standing together on a staircase, the Department of Employment and Labour asks how your photo compares with the sector in which the company operates.
“The Department of Labour gives the employer all the reported data, gives them a picture of how the national and provincial, sectoral economically active population looks, by race and gender. And says, well, this is how it is out there; how are you doing? It provides the employer with a very realistic benchmark.”
De Jongh says the goal should be to help empower the whole country so that the economy reaches a point where everyone can contribute instead of just a few.
“Now what affirmative action does is, it asks companies that are in a position to do so – because the government is struggling – to invest in mechanisms that can help people who have the ability to contribute, to contribute to the economy. Not necessarily immediately, but over time. For example, if a company identifies a learner or a student who shows potential, support them, either through a learnership or a bursary.”
She says if employers don’t open themselves up to the idea that anyone can do a job if given the opportunity and continue to always hire the same profile of person, then they run the risk of never effecting real change.
Having a representative workforce encourages cosmopolitanism, different ways of thinking, more ideas, and more perspectives, she says.
“That equips you better, especially in a country like South Africa where you need to be awake to different ways of doing things, to function effectively,” De Jongh says.
Registration for the first seminar, on Wednesday, 23 August, closes on Monday, 21 August.
The CPD hours will be confirmed.
For more information, please email events@moonstonecompliance.co.za
Hi
Please advise when the next weiner will be. I’m trying to gain knowledge on EEA and this would of been ideal however I searched for this a tad bit too late
Thx
Tanielle
Hi
The next EEA webinar will on 6 September. Click here to register: https://workshops.moonstone.co.za/