SOUTH AFRICA: EMPLOYMENT EQUITY AMENDMENT BILL: DOEL AGREES TO ‘REINTRODUCE’ MINISTER’S CONSULTATION REQUIREMENT

Friday, June 11, 2021
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On 21 July 2020, the Minister of Employment and Labour (Minister) tabled the Employment Equity Amendment Bill (B14-2020) (Bill) at the National Assembly (NA), setting out proposed amendments to the Employment Equity Act, 1998 (EEA). An earlier version of the bill was tabled at NEDLAC in November 2017 (Draft Bill) and, following deliberations, on 21 September 2018 the Draft Bill was published for public comment.

Notably, substantive amendments were made to the Draft Bill to arrive at the Bill in its current form. One of these amendments was to omit the requirement that the Minister consults with the relevant sectors before setting sectoral numerical targets. Read our previous newsflash on this topic here.

Public hearings: Concerns regarding the omission of the ‘consultation requirement’ from the Bill

The National Assembly’s Portfolio Committee on Employment and Labour (Portfolio Committee) met during April 2021 to consider public, oral submissions on the Bill.

At these public hearings, organised business and other stakeholders expressed concern that the Bill omits the requirement that the Minister consults with the relevant sectors before setting sectoral numerical targets for any sector. This requirement was proposed in terms of the Draft Bill, which was the version tabled at NEDLAC and as such agreed with business and social partners and considered for public comment. Stakeholder submissions included that absent a requirement to consult with the relevant sectors, the sectoral numerical targets may amount to quotas, which are specifically prohibited in terms of the EEA.

Section 15A(2) of the Draft Bill provided that:

The Minister may, after consulting the relevant sectors and with the advice of the Commission, for the purpose of ensuring equitable representation of suitably qualified people from designated groups at all occupational levels in the workforce, by notice in the Gazette set numerical targets for any sector or part of a sector as identified in terms of subsection (1).

Whereas, section 15A(3) of the Bill provides that:

The Minister may, after consulting the National Minimum Wage Commission, for the purpose of ensuring the equitable representation of suitably qualified people from designated groups at all occupational levels in the workforce, by notice in the Gazette set numerical targets for any national economic sector as identified in terms of subsection (1).

The Bill’s Memorandum, however, specifically refers to consultation which is ongoing. In addition, the purported consultation processes that commenced with various ‘sectors’ (although not yet delineated as contemplated by the Bill until such time as it is enacted, and the Minister is empowered to identify economic sectors) circa 2018 continued. This notwithstanding, stakeholders expressed concern that the Bill should be amended to include the express consultation requirement as set out in the Draft Bill.

In the Department of Employment and Labour’s (DoEL's) response to stakeholder submissions before the Portfolio Committee on 26 May 2021, the DoEL undertook to amend section 15A(3) of the Bill to read as follows:

The Minister may, after consulting the relevant sectors and with the advice of the Commission for Employment Equity, for the purpose of ensuring the equitable representation of suitably qualified people from designated groups at all occupational levels in the workforce, by notice in the Gazette set numerical targets for any national economic sector identified in terms of subsection (1).

It is apparent that in addition to the consultation requirement, the Bill’s reference to consultation (in its current form) with the National Minimum Wage Commission on the sectoral numerical targets is an error and should refer to the Commission for Employment Equity, as the Draft Bill did. 

What to make of ‘consultation’ to date?

As at 31 March 2021, the DoEL records that a total of 16 ‘economic sectors’ have been ‘consulted’. The DoEL notes that the Manufacturing and Public Administration sectors are yet to be ‘consulted’. This purported consultation process notwithstanding, in our view, if the Bill is amended (as agreed by the DoEL) to require that the Minister consults with sector stakeholders before setting sectoral numerical targets, any purported consultation process before the Bill is signed into law would be premature and would not per se satisfy the consultation requirement in the then amended EEA.

This is particularly so since the Minister will only be empowered to identify national economic sectors in terms of the Act once it is amended in the terms proposed by the Bill. In our view, until such time as the Minister is empowered to identify sectors in terms of the EEA, as would be amended, the Minister would not be able to commence consultations with those sectors as would be required if the Bill is so amended, as agreed by the DoEL.

Other possible amendments to the Bill

As part of its response to the public hearing submissions, the DoEL also agreed to the following further amendments to the Bill:

  • Section 37 to be corrected to remove ‘any other person’ for inspections and compliance orders.
  • Section 53 to correct ‘three years’ to validate the Compliance Certificate to 12 months.
  • CCMA Arbitration Awards should be for finalised unfair discrimination cases for the [preceding] 12 months and not three years.

The Portfolio Committee is scheduled to meet on 17 ad 18 June 2021 (dates subject to change) for further deliberations on the Bill.