BRENTWOOD

2023-06-29

Significant settlement agreement on the Employment Equity Amendment Act (Solidarity and The Department of Employment and Labour)

A settlement agreement has been signed regarding the Employment Equity Amendment Act provisions between the Department of Trade Union Solidarity, after the union filed a complaint with the International Labour Organisation against the government for the rigid application of affirmative action in South Africa.

The settlement addresses a number of concerns with the Employment Equity Amendment Act, including the Sectoral targets for 18 sectors’ four different skill levels – including top management. Under the Amendment Act designated employers have five years to ensure their workforces represent racial and gender demographics on a provincial or national level.

Within the settlement:

- Termination and access to employment.
- Employment may not be terminated as a result of employers’ compliance with Employment Equity requirements.
- No employer will be forced in any way to dismiss workers based on race to achieve the targets.
- Race may not be used as the sole criterion for employment, promotions, and any other employment practices.

- The criteria that must be taken into account when applying employment equity includes:
- Inherent requirements of the job, which is a current criteria.
- The pool of suitably qualified persons
- The qualifications, skills, experience, and the capacity to acquire, within a reasonable timeframe, the ability to do the job.
- The rate of turnover and natural attrition in the workplace
- Recruitment and promotional trends within a workplace

- Justifiable and reasonable grounds for not complying with the targets include:
- Insufficient recruitment opportunities
- Insufficient promotion opportunities
- Insufficient target individuals from designated groups with the relevant skills, qualifications, and experience
- CCMA awards or court orders
- Transfer of business
- Mergers / Acquisitions
- Impact on business economic circumstances

- Fines and Penalties
- No penalties or any disadvantage will be applied to employers that have valid and reasonable grounds not to comply.

- Range of measures
- Affirmative action is only one of the measures to obtain effective equality.
- The Economically Active Population statistics will only be one of the factors for compliance with affirmative action.

The settlement will be made a court order.