The Department of Employment and Labour (DoEL) recently hosted a series of workshops around South Africa. Presenters included Employment Equity Commission (ECC) Chairperson Tabea Kabinde and Ms Ntsoaki Mamashela, Director of Employment Equity of the Department of Employment and Labour (DoEL).
Key observations which may be of interest to the RMI (which have not been included in the media statements released by the DoEL) are as follows:
- The draft sectoral targets that were published in May 2023 for public comment will remain in draft form, and new draft sectoral targets will be published for public comment. The DoEL did not indicate when this would take place, but intimated that by the next reporting period for 2024 (i.e 1 September 2024), the final sectoral targets should be in place and the new online reporting system will be up and running.
2. The 2023 reporting period will continue with reference to the current Economically Active Population (EAP) statistics and Designated Employers’ current employment equity plans.
3. When the updated reporting system is activated, Designated Employers who are registered online will not need to re-register if their profile is active.
4. In order to obtain a certificate of compliance to do business with government, both non-designated employers (employers with below 50 employees) and Designated Employers will still need to register on the DoEL online reporting system and will need to confirm that:
a. there has been no finding by the CCMA or a court within the previous 12 months that the employer breached the prohibition on unfair discrimination in Chapter 2 of the EEA; and
b. the CCMA has not issued an award against the employer in the previous 12 months for failing to pay the minimum wage in terms of the National Minimum Wage Act, 2018 (Act No. 9 of 2018).
5. For purposes of both non-designated and Designated Employers, the requirement that there is no unfair discrimination arbitration awards or court orders in the last 12 months does not include awards that are taken on review or orders that are pending at the Labour Court or the Labour Appeal Court.
6. A certificate of compliance will be valid for 12 months and will be available on the online reporting system.
7. Employers will be required to choose between using the National sectoral targets or regional sectoral targets. The DoEL seemed to indicate that this would be a choice by Designated
Employers, however, we caution that Designated Employers ought to have a sound rational basis to elect regional sectoral targets when it has national offices.
8. A Designated Employer can only opt for one regional sectoral target, and not multiple regional sectoral targets. For example, if a Designated Employer opts to refer to regional sectoral targets for the Western Cape, it must apply those targets to its Johannesburg and Durban operations / business units. Once a Designated Employer selects a specific target (be it regional or national), it cannot at a later stage change that decision and is “locked in” for the 5 year sectoral target period.
9. The Minister of Employment and Labour will only publish 5 year sectoral targets, and it will leave Designated Employers to set their own annual targets with the objective to meeting the overall target within 5 years. Designated Employers must therefore still consult with its workforce on the annual targets.
10. When reporting online, the Designated Employer will be required to submit its workforce profile in the EEA2 report. The system will detect a failure to meet any annual target set by the Designated Employer. Designated Employers will then have an opportunity to select on the system, the reason for failure to meet the annual target, such reasons including:
a. Insufficient recruitment opportunities;
b. Insufficient promotion opportunities;
c. Insufficient target individuals from the designated groups with the relevant qualification, skills and experience;
d. CCMA / Court Order;
e. Transfer of business;
f. Mergers/ Acquisitions; and
g. Impact on Business Economic circumstances.
11. The DoEL will rely on the good faith of Designated Employers to report honestly as the certificate of compliance is issued on the strength of a Designated Employer’s own declaration. A certificate of compliance may be revoked if a Labour Inspector finds that there has been unlawful / dishonest submissions (in addition to any penalties that may be applicable).
12. The DoEL only intends to publish sectoral targets for the top four occupational levels where transformation has been lacking. The remaining occupational levels will be determined by Designated Employers in consultation with its workforce and taking into account the national or regional EAP.
13. The DoEL is aware that the sectoral targets do not equate to 100%, it is not its intention for the sectoral targets to equate to 100% and this is to take into account a Designated Employer’s current workforce profile. The sectoral targets that are set for the top four occupational levels are less than the national and regional EAP.
14. Designated Employers are not permitted to dismiss or retrench employees in an attempt to meet sectoral targets as this would amount to unfair discrimination. Instead, Designated Employers should use natural attrition as an opportunity to improve its workforce profile.
The DoEL official media statement can be found here: https://www.gov.za/speeches/no-person-will-be-retrenched-or-dismissed-advance-ee-targets-13-sep-2023-0000
Any Member that wishes to make an inquiry in this subject regard, can contact the RMI’s Transformation Director, Ms. Nonhlanhla Tshabalala on Noni.Tshabalala@rmi.org.za or telephonically on 083 208 7161.