EMPLOYMENT LAW: The Employment Equity Amendment Act

The Employment Equity Amendment Act (‘the Act’) was accepted by the National Assembly and the National Council of Provinces this month and signifies the first amendment to the Employment Equity Act since its enactment in 1998.

Some of the amendments contained in the Act include changes to the definition of ‘designated groups’ to ensure that beneficiaries of affirmative action are limited to, amongst others, persons who were South African citizens before the democratic era, and their descendants. As a result, the employment of persons who are foreign nationals or people who became citizens after April 1994 do not assist employers to meet their affirmative action targets. The Act also allows for the annual turnover thresholds set for employers in various industries to be increased threefold. However, employers that employ 50 or more employees still fall within the definition of ‘designated employer’ irrespective of their turnover. In addition, all designated employers, including those with 150 or less employees, will have to submit annual Employment Equity reports.

Furthermore, the Act also extends the grounds for discrimination listed in section 6 of the EEA to include ‘on any arbitrary ground’. Where an employee alleges one of the listed discriminatory grounds, the onus will be on the employer to prove that discrimination did not take place as alleged, or is rational and not unfair, or is otherwise justified. Where the allegation of unfair discrimination is based on ‘on any other arbitrary ground’, then the onus will however be on the employee. The Act also imposes heavy penalties for contraventions of the EEA; maximum fines for offenses contemplated in s59 and s61 are increased to R30 000.00, with the Minister being empowered to adjust those fines to counter inflation without the concurrence of the Minister of Justice.

The Act has been received with mixed feelings. Some believe that the Act affords people of colour equal opportunities that they would otherwise not have obtained simply because of the colour of their skin. Others understand the need for corrective action to set aside the wrongs committed in the past, but believe that it should not be imposed on a continuous basis.