The long-awaited changes to the Employment Equity Act of 1998 (EEA) will take effect on September 1, 2023, according to a recent media statement issued by the South African Department of Employment and Labor (DoEL).

In July 2020, the Employment Equity Amendment Bill (the Bill) was first introduced in Parliament. The National Assembly approved it in November 2021, and most recently, on May 17, the National Council of Provinces. The president’s signature is still required. According to the DoEL’s announcement, President Cyril Ramaphosa will sign between now and the beginning of 2023, suggesting that such a signing may be imminent.

Amendments

The following are some of the most significant amendments the Bill will make.

Deleting the official term of a designated employee

An employer (other than a municipality, an organ of state, or an employer appointed as a designated employer under the terms of a collective agreement) will only be considered a designated employer for the purposes of the affirmative action provisions of the EEA if it employs 50 or more employees as a result of the deletion of part of the current definition of “designated employer” as of September 1, 2023. The overall annual turnover of an employer will no longer be taken into account.

The minister of employment and labor allowed to identify national economic sectors and set numerical targets

In this context, the DoEL has stated that sector-specific target-setting discussions with relevant stakeholders began in June 2019 in industries like education, agriculture, banking, and insurance. Mining and quarrying, public administration and defence, manufacturing, information and communication, construction, and real estate are the remaining industries that need to be consulted. In due course, the DoEL will make the list of sector targets available for public discussion.

Set criteria for employer certificate by DoEL

Employers will need this certificate in order to reach agreements with the state. It’s interesting that although being introduced some time ago, the certificate requirement (included in section 53 of the EEA) has not yet gone into force. It appears that after the revisions, Section 53 will be implemented. According to section 53, “every employer” (designated or undesignated) who makes an offer to conclude an agreement with any organ of state for the provision of supplies or services to that organ of state, or for the hiring or letting of anything, must comply with Chapters II and III of the EEA if it is a designated employer, and Chapter II of the EEA if it is not a designated employer.

A certificate from the minister must be included with the employer’s offer. A compliance certificate under the changes may only be granted if the minister is certain that the following:

The employer has met any sector-specific numerical targets that apply to it or provided a justifiable excuse for not doing so.

The employer has turned in its yearly report on employment equity.

In the previous 12 months, neither the Commission for Conciliation, Mediation, and Arbitration (CCMA) nor a court found that the employer had violated the EEA’s prohibitions against unfair discrimination.

In the previous 12 months, the CCMA did not issue an award against the employer for failing to pay the national minimum wage.