[South Africa] Jobs equity law will be ‘nuanced’

South Africa’s Depart­ment of Employ­ment and Labour has expressed con­fid­ence that more strin­gent legis­la­tion will drive bet­ter com­pli­ance with the coun­try’s jobs equity agenda. However, an agree­ment reached last week between the Solid­ar­ity trade union and the gov­ern­ment may leave the Employ­ment Equity Amend­ment Act with less power, Business Times reports.

Them­binkosi Mkalipi - the depart­ment’s chief dir­ector - told Busi­ness Times that the act, which became law in April, would level the play­ing field in work­places following the poor per­form­ance of the private sec­tor on trans­form­a­tion.

The new act reportedly gives the min­is­ter the power to set five-year equity tar­gets in sec­tors of the eco­nomy. Com­pan­ies will be required to present annual plans on meet­ing the tar­gets the min­is­ter sets.

“It’s either you meet your tar­get or you don’t meet your tar­get, you have jus­ti­fi­able reason or you do not have jus­ti­fi­able reason. We think it will stream­line enforce­ment,” he said.

“The pre­vi­ous law required com­pan­ies to set their own tar­gets. We see it as one of the reas­ons trans­form­a­tion did not hap­pen.”

The Com­mis­sion for Employ­ment Equity’s 23rd annual report revealed that white people con­tinue to dom­in­ate top man­age­ment positions at 62.9 per cent in 2022, from 63.2 per cent the previous year, while black Afric­ans com­prised 16.9 per cent, down from 17 per cent in 2021.

“We have pub­lished these reports for soci­ety to see where we are, and soci­ety must be able to say this is not accept­able. That should put pres­sure on board mem­bers of com­pan­ies,” Mr Mkalipi said.

He added that employ­ment equity laws had been res­isted in some quar­ters.

“Just like apartheid, you never had 100 per cent sup­port of apartheid, black people did not sup­port apartheid. Those who benefited from it sup­por­ted it. The same applies with employ­ment equity. We do not fore­see a situ­ation where we will ever have 100 per cent sup­port on employ­ment equity, and the forces that are anti-trans­form­a­tion have got resources and they have got money, they have got time, and they are very vocal, which is their right.”

The agree­ment between Solid­ar­ity and the gov­ern­ment, signed last week, stated that “affirm­at­ive action will be applied in a nuanced way”.

The agree­ment was reportedly reached after Solid­ar­ity lodged a com­plaint with the Inter­na­tional Labour Organ­isa­tion over South Africa’s employ­ment equity legis­la­tion, claiming it defied inter­na­tional con­ven­tions to which the coun­try is a party.

Thu­las Nxesi - the Employ­ment & Labour min­is­ter - said in a state­ment that the Employ­ment Equity Act and other labour laws do not require employ­ers to dis­miss any employ­ees, irre­spect­ive of their race, to make space for the imple­ment­a­tion of affirm­at­ive action.

Solid­ar­ity said com­pan­ies could “cite their eco­nomic pos­i­tion, staff turnover and skills short­ages as a defence as to why they are not com­ply­ing with tar­gets. If a com­pany has a reas­on­able defence as to why it does not meet its tar­gets, such a com­pany will not be fined or for­feit gov­ern­ment con­tracts.”

Anton van der Bijl - deputy chief exec­ut­ive for legal mat­ters at Solid­ar­ity - told Business Times that the set­tle­ment doesn’t expli­citly say the amend­ments must be with­drawn.

“The set­tle­ment terms must form part of the amend­ments, if the amend­ments give rights to the min­is­ter to make sec­tor determ­in­a­tions, we say he can­not only look at sec­toral determ­in­a­tion, he must take vari­ous

Issues into con­sid­er­a­tion prior to com­ply­ing with affirm­at­ive action,” he said.

“From the gov­ern­ment and South Africa side there is a fix­a­tion with demo­graphic rep­res­ent­a­tion. The only goal is that each work­place must reflect the demo­graph­ics of South Africa; it is not legal and does not com­ply with con­ven­tions. We have a big gap between skills and employ­ment,” he added.

Solid­ar­ity has approached the courts to chal­lenge the con­sti­tu­tion­al­ity of the new law. This applic­a­tion will go ahead des­pite the June 28 agree­ment, Mr Van der Bijl said.

Mr Mkalipi reportedly acknowledged that equity was not solely about com­pany com­mit­ments to trans­form and stated that the depart­ment needed to do more to increase enforce­ment.

“That is why we need to up our game on the enforce­ment side to deal with these issues. The space of enforcing the act is the least resourced. There are less than 60 employment equity inspectors countrywide. The inspectorate’s reach is therefore limited by inefficient resources on the ground.

“While the EEA makes pro­vi­sion for the labour courts to fine recal­cit­rant employ­ers a max­imum of up to R1.5m or 2 per cent of turnover, there is no pro­vi­sion for a min­imum fine,” Mr Mkalipi said.

“The num­ber of fines that could be meted out to a non­com­pli­ant employer is at the dis­cre­tion of the labour court. The inspect­or­ate has not been suc­cess­ful in secur­ing hefty fines, as a res­ult.”

Source: Business Times

(Quotes via original reporting)

South Africa’s Depart­ment of Employ­ment and Labour has expressed con­fid­ence that more strin­gent legis­la­tion will drive bet­ter com­pli­ance with the coun­try’s jobs equity agenda. However, an agree­ment reached last week between the Solid­ar­ity trade union and the gov­ern­ment may leave the Employ­ment Equity Amend­ment Act with less power, Business Times reports.

Them­binkosi Mkalipi - the depart­ment’s chief dir­ector - told Busi­ness Times that the act, which became law in April, would level the play­ing field in work­places following the poor per­form­ance of the private sec­tor on trans­form­a­tion.

The new act reportedly gives the min­is­ter the power to set five-year equity tar­gets in sec­tors of the eco­nomy. Com­pan­ies will be required to present annual plans on meet­ing the tar­gets the min­is­ter sets.

“It’s either you meet your tar­get or you don’t meet your tar­get, you have jus­ti­fi­able reason or you do not have jus­ti­fi­able reason. We think it will stream­line enforce­ment,” he said.

“The pre­vi­ous law required com­pan­ies to set their own tar­gets. We see it as one of the reas­ons trans­form­a­tion did not hap­pen.”

The Com­mis­sion for Employ­ment Equity’s 23rd annual report revealed that white people con­tinue to dom­in­ate top man­age­ment positions at 62.9 per cent in 2022, from 63.2 per cent the previous year, while black Afric­ans com­prised 16.9 per cent, down from 17 per cent in 2021.

“We have pub­lished these reports for soci­ety to see where we are, and soci­ety must be able to say this is not accept­able. That should put pres­sure on board mem­bers of com­pan­ies,” Mr Mkalipi said.

He added that employ­ment equity laws had been res­isted in some quar­ters.

“Just like apartheid, you never had 100 per cent sup­port of apartheid, black people did not sup­port apartheid. Those who benefited from it sup­por­ted it. The same applies with employ­ment equity. We do not fore­see a situ­ation where we will ever have 100 per cent sup­port on employ­ment equity, and the forces that are anti-trans­form­a­tion have got resources and they have got money, they have got time, and they are very vocal, which is their right.”

The agree­ment between Solid­ar­ity and the gov­ern­ment, signed last week, stated that “affirm­at­ive action will be applied in a nuanced way”.

The agree­ment was reportedly reached after Solid­ar­ity lodged a com­plaint with the Inter­na­tional Labour Organ­isa­tion over South Africa’s employ­ment equity legis­la­tion, claiming it defied inter­na­tional con­ven­tions to which the coun­try is a party.

Thu­las Nxesi - the Employ­ment & Labour min­is­ter - said in a state­ment that the Employ­ment Equity Act and other labour laws do not require employ­ers to dis­miss any employ­ees, irre­spect­ive of their race, to make space for the imple­ment­a­tion of affirm­at­ive action.

Solid­ar­ity said com­pan­ies could “cite their eco­nomic pos­i­tion, staff turnover and skills short­ages as a defence as to why they are not com­ply­ing with tar­gets. If a com­pany has a reas­on­able defence as to why it does not meet its tar­gets, such a com­pany will not be fined or for­feit gov­ern­ment con­tracts.”

Anton van der Bijl - deputy chief exec­ut­ive for legal mat­ters at Solid­ar­ity - told Business Times that the set­tle­ment doesn’t expli­citly say the amend­ments must be with­drawn.

“The set­tle­ment terms must form part of the amend­ments, if the amend­ments give rights to the min­is­ter to make sec­tor determ­in­a­tions, we say he can­not only look at sec­toral determ­in­a­tion, he must take vari­ous

Issues into con­sid­er­a­tion prior to com­ply­ing with affirm­at­ive action,” he said.

“From the gov­ern­ment and South Africa side there is a fix­a­tion with demo­graphic rep­res­ent­a­tion. The only goal is that each work­place must reflect the demo­graph­ics of South Africa; it is not legal and does not com­ply with con­ven­tions. We have a big gap between skills and employ­ment,” he added.

Solid­ar­ity has approached the courts to chal­lenge the con­sti­tu­tion­al­ity of the new law. This applic­a­tion will go ahead des­pite the June 28 agree­ment, Mr Van der Bijl said.

Mr Mkalipi reportedly acknowledged that equity was not solely about com­pany com­mit­ments to trans­form and stated that the depart­ment needed to do more to increase enforce­ment.

“That is why we need to up our game on the enforce­ment side to deal with these issues. The space of enforcing the act is the least resourced. There are less than 60 employment equity inspectors countrywide. The inspectorate’s reach is therefore limited by inefficient resources on the ground.

“While the EEA makes pro­vi­sion for the labour courts to fine recal­cit­rant employ­ers a max­imum of up to R1.5m or 2 per cent of turnover, there is no pro­vi­sion for a min­imum fine,” Mr Mkalipi said.

“The num­ber of fines that could be meted out to a non­com­pli­ant employer is at the dis­cre­tion of the labour court. The inspect­or­ate has not been suc­cess­ful in secur­ing hefty fines, as a res­ult.”

Source: Business Times

(Quotes via original reporting)