Employment and labour minister Thulas Nxesi gave the assurance on Wednesday the revised draft employment equity regulations under the Employment Equity Amendment Act will be released for a second round of public comments.
The act empowers the minister to regulate sector-specific employment equity targets and to prescribe demographic targets for employers with more than 50 employees. The aim is to ensure the equitable representation of suitably qualified people from designated groups. The act stipulates that an employment equity compliance certificate will be a prerequisite for doing business with any organ of state and securing state contracts.
Nxesi told parliament’s labour committee his department and the Commission for Employment Equity is fine-tuning draft regulations on proposed sector-numerical employment equity targets on the basis of public comments received from stakeholders.
“Once that process is completed the revised draft employment equity regulations will once again be published for further comments,” he said. “The comments and proposals that are consistent with what the constitution instructs us to do, will be carried through to the final employment equity regulations.”
In terms of the published draft regulations, the “the proposed sector employment equity-numerical targets for the various population groups (that is, African, coloured, Indian and white) and gender must, where applicable, be proportional to the demographics of the economically active population whether national or provincial”.
Thembinkosi Mkalipi, the department’s chief director of labour relations, told MPs the final regulations will be promulgated only once president Cyril Ramaphosa determines the commencement date of the act. The bill was passed by parliament on May 17 2020 and assented into law on April 6, 2023. The draft regulations were published for public comment on May 12.
The committee also dealt with a petition sent in June by Solidarity CEO Dirk Hermann and Cape Forum executive chair Heinrich Wyngaard, which asked for urgent steps “to reassess the legality, rationality and desirability of the proposed employment equity regulations 2023”. They said the draft regulations were economically and/or statistically irrational.
They argued the numerical targets for population groups proposed by the draft regulations in effect means quotas, which is unconstitutional and would result in the a major decrease in minority group representation as a percentage of the labour market at the top four job levels.
Mkalipi argued the petition lacked legal basis, was premature as there are presently no final 2023 employment equity regulations, and had also been overtaken by the settlement agreement between Solidarity and the government, which was made an order of court at end-October. The agreement came after a legal challenge by Solidarity regarding the constitutionality of the act. The challenge was withdrawn in the labour court after settlement agreement.
Mkalipi said the contents of the settlement agreement would form part of the final employment equity regulations that will be published after the commencement of the act. He said the petition should be seen as “a total disregard and misuse of parliamentary processes”.
The effect of the settlement agreement under the supervision of the International Labour Organisation is that race cannot be used to determine who is hired, fired or promoted. Race cannot be the only factor in drawing up employment equity plans, which among other things will also have to take account of the pool of available qualified workers and a company’s unique circumstances.
The DA opposes the act and filed papers in the Pretoria high court in June contesting its constitutionality and validity. DA employment and labour spokesperson Michael Cardo said the numerical targets amount to race-based quotas in all but name and that the act would destroy jobs.
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