EMPLOYERS TAKE NOTE: NEW EMPLOYMENT EQUITY ACT REGULATIONS LIMIT “DESIGNATED PERSONS” TO SOUTH AFRICANS

Monday, October 02, 2006
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EMPLOYERS TAKE NOTE: NEW EMPLOYMENT EQUITY ACT REGULATIONS LIMIT "DESIGNATED PERSONS" TO SOUTH AFRICANS
By Brigitte Berard and Talita Laubscher

The new Employment Equity Act, which became effective on 26 May 2006, demands the close attention of all employers.

In particular, the new regulations, in contrast to those previously in force, provide a specific definition for "designated groups", defined as black people (Africans, Coloureds and Indians), women and people with disabilities who are natural persons and:

· Are South African citizens by birth or descent; or
· Are South African citizens by naturalisation before the commencement date of the Constitution of the RSA Act of 1993; or
· Became South African citizens after the commencement date of the Constitution of the RSA Act of 1993, but who would have been entitled to become South African citizens prior to that date were it not for the former government’s apartheid policy.

The definition impacts on employers in that now, for a black, a woman or disabled employee to be considered a member of a designated group, s/he must be a South African citizen through birth or descent, or through naturalisation before 1993.

In terms of the post-1993 apartheid scenario, foreigners who otherwise fit the definition of "designated groups" will not count towards a designated employer’s employment equity figures.

Other noteworthy changes and additions contained in the new regulations include the assigning of senior managers to take responsibility for monitoring and implementing an Employment Equity Plan, consultations in terms of the Act, submission dates of reports, and the authorisation of documentation submitted to the Department of Labour.

Additionally, provisions concerning a review by the Director-General to determine the extent to which the employer is complying with the Act have been inserted.

Such a review may be conducted by means of applying the so-called Numerical Analysis Model in order to determine the degree to which designated groups are represented at each occupational level.

The forms have also been amended. Importantly, forms EEA 2A and EEA 4A (dealing with small businesses) have been removed and their contents are now incorporated in the new forms EEA2 and EEA4.