SA Labour Guide
Your guide to labour law in South Africa
2 August 2010
Employment Equity – the duty to report
Johanette Rheeder
The euphoria of the world cup has finally left us and as we are fast approaching the 1st of October, designated employers are digging up and dusting their employment equity plans and are preparing to report their progress in achieving their targets for the last reporting period.
Designated employers have a duty to report on its progress in achieving equity in its workplace in terms of the Employment Equity Act, no 55 of 1998. The Act is divided into two main parts, the first dealing with unfair discrimination and the second with affirmative action. All employers must comply with the part dealing with unfair discrimination, however, only designated employers must comply with the affirmative action part. A designated employer is defined as a person with 50 or more employees, a person with fewer than 50 employees but who has an annual turnover equal or higher than the turnover published in schedule 4, municipalities, organs of state and employers bound by collective agreements to comply with the act. Excluded are the National Defence force, Intelligence Agency and Secret services.
Designated employees who can benefit from affirmative action measures are Black people (a generic term for Africans, Coloureds, Indians and Chinese), women and people with disabilities.
Section 5 of the Act places a positive obligation on every employer to take steps to promote equal opportunities in the workplace by eliminating unfair discrimination in any policy, procedure or practice. Employers must therefore go through a consultation and analysis process whereby it investigates its policies, procedures and practices in the workplace to seek discriminatory practices. It must also analyse its profile to determine to what extend designated employees are underrepresented in its workplace. This entails an investigation of its documents, practices and its employment environment, consulting with employees or unions to obtain participation and input and educating employees on their right to equity and equality in the workplace.
Section 13 determines that once an employer has consulted with employees and conducted an analysis into its policies, procedures and practices and has compiled its profile, then the designated employer must prepare an employment equity plan and report on its progress to the Department of Labour by 1 October. Small employers are defined as employers with less than 150 employees and must report for the first time within a year of becoming a designated employer and thereafter, every second year, on every year ending with an even number. All small employers must therefore report this year, using Form EEA2 in terms of regulation 32392 of 14 July 2009. Big employers (with more than 150 employees) must report for the first time within six months after becoming a designated employer and thereafter they must report every year.
An employment equity plan sets out the sequential process followed between the current workplace profile, the barriers identified in achieving equity, the affirmative action measures to eliminate those barriers and the goal the employer plans to achieve at the end of the planning period. If the employer conducted a proper analysis it will know which barriers exist in its organisation and it will have identified the measures it wants to implement to eliminate those barriers in order for it to achieve its goals.
The plan can run between one and five years and must clearly set out the numerical goals to be achieved at the end of the period.
Employers can submit their reports to the Department of Labour by posting the EEA2 form to the address provided on the department’s website or can submit their forms electronically by lodging onto
Johanette Rheeder Attorneys
In association with Gildenhuys Lessing Malatji Attorneys