The department of employment & labour is confident that more stringent legislation will drive better compliance with the country's jobs equity agenda.
But an agreement reached this week between the Solidarity trade union and the government may mean the Employment Equity Amendment Act will have fewer teeth.
The department’s chief director, Thembinkosi Mkalipi, told Business Times this week that the act, which became law in April, would level the playing field in workplaces after the dismal performance of the private sector on transformation.
The new act 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 set by the minister.
“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 last week showed that whites continue to dominate top management at 62.9% in 2022, from 63.2% a year earlier, while black Africans comprised 16.9%, down from 17% 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” Mkalipi said.
He said employment equity laws have been resisted in some quarters. “Just like apartheid, you never had 100% 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% 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 this week said “affirmative action will be applied in a nuanced way”.
The agreement was reached after Solidarity lodged a complaint with the International Labour Organisation over South Africa's employment equity legislation, saying it flouted international conventions to which the country is a party.
From the government side there is a fixation with demographic representation
— Anton Van der Bijl deputy chief executive for legal matters at Solidarity
Employment & labour minister Thulas Nxesi said in a statement the EEA 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 can “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 company will not be fined or forfeit government contracts.”
Anton van der Bijl, deputy chief executive for legal matters at Solidarity, said the settlement does not 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,” Van der Bijl said.
Solidarity has also approached the courts to challenge the constitutionality of the new law, and this application will go ahead despite Wednesday's agreement, Van der Bijl said.
Mkalipi conceded equity was not only about company commitments to transform, and 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 insufficient resources on the ground.”
He said while the EEA makes provision for the labour courts to fine recalcitrant employers a maximum of up to R1.5m or 2% of turnover, there is no provision for a minimum fine.
“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.”
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