Core Submissions on Draft EE Regulations

The Employment Equity Amendment Act (EEA) plays a crucial role in accelerating transformation across various sectors of the South African economy.

Business in general support the objectives of the EEA but have raised concerns about several provisions in the Draft Regulations that may not pass constitutional muster in their current form.

One of the key issues highlighted is the lack of adequate consultation in the drafting process.

Given the complexity of analysing employment trends in different industries, sufficient time should have been allocated for evidence-based submissions from relevant sectors.

The regulations also appear to be misaligned with the Solidarity Agreement in some instances and do not always consider the unique challenges faced by designated employers.

While the description of targeted percentages has been changed from "Black Representation" to "Designated Persons," which includes white women and white people with disabilities, there has been little consideration of sector-specific factors such as economic conditions, skills availability, and legislative requirements.

The Department of Employment and Labour need to demonstrate that stakeholder submissions have been taken into account.

The draft regulations also contain provisions that conflict with existing legislation. Point 3.4.4 states that employers should not set targets for over-represented groups at particular occupational levels, which contradicts Section 20(2)(c) of the EE Act and the 2017 Codes of Good Practice.

This provision could lead to the absolute exclusion of non-designated persons and potentially Indian and Coloured individuals in many instances. 

Furthermore, the requirement for designated employers with a national footprint to use only one Economically Active Population (EAP) in setting EE goals presents challenges.

The Constitutional Court has previously ruled that provincial considerations must be embedded in the determination of targets and the implementation of affirmative action measures.

Additionally, the regulations should consider the specificity of sectors and sub-sectors, as a "one-size-fits-all" approach may render targets unachievable.

Concerns have also been raised about the compliance process in cases where a designated employer has not achieved its targets.

It could be addressed by employers being given a fair opportunity to justify their position before any decision is made to withhold a compliance certificate, with the Labour Court being the appropriate forum for such matters.

Lastly, the requirement for designated employers to move towards the EAP once Ministerial Targets have been achieved during the 5-year period is a new provision and may exacerbate already stringent regulations in a difficult trading environment for businesses.

In conclusion, while the objectives of the EEA are supported, many employers emphasize the need for meaningful consultation, alignment with existing legislation, and consideration of sector-specific factors in the drafting of the EE Regulations. By addressing these concerns, the regulations can more effectively contribute to the acceleration of transformation in the South African workplace.

By John Botha