SOUTH AFRICA Law and Practice Contributed by: Professor Michael Katz, Matthew Morrison and Madison Liebmann, ENS
Specific affirmative action and reporting obliga - tions are also imposed on “designated employ- ers” subject to the Employment Equity Act, No 55 of 1998, as amended. In the private sector, a designated employer is an employer who employs 50 or more employees, or who has otherwise been declared to be a designated employer in terms of a collective agreement. In addition to prohibiting unfair discrimination in the workplace, the Employment Equity Act requires that designated employers take progressive measures to improve the representation of suita - bly qualified employees from designated groups (South Africans who are black, women or people with disabilities) in the workplace. The legisla - tive framework seeks to achieve this improved representation of suitably qualified employees from designated groups by requiring designated employers to form and consult with an Employ - ment Equity Committee (made up of trade union and employee representatives), develop and implement an Employment Equity Plan and sub - mit annual Employment Equity Reports to the Department of Employment and Labour. Notably, the Employment Equity Act has been recently amended. Amongst other things, the recent amendments to the Employment Equi - ty Act and its regulations require designated employers to meet sector-specific employment equity targets (ie, targeted percentages of peo - ple from designated groups in the top four occu - pational levels) over a five-year period. These targets have been determined by the Minister of Employment and Labour. Designated employers who do not meet these sectoral targets after the five-year period will be required to demonstrate to the Department of Employment and Labour that there were justifiable reasons for having not met the sectoral targets. Furthermore, a certifi - cate of compliance with the Employment Equity Act (issued by the Department of Employment
and Labour) is now a prerequisite to conduct - ing any business with the State or any organ of state. Broad-Based Black Economic Empowerment (B-BBEE) is a policy of the South African gov - ernment, which is aimed at increasing partici - pation by previously disadvantaged South Afri - cans in economic activities. The Broad-Based Black Economic Empowerment Act 53 of 2003, as amended (the “B-BBEE Act” ) is the primary legislation through which this B-BBEE policy is implemented. In terms of the B-BBEE Act, B-BBEE consists of measures and initiatives that are aimed at: • increasing levels of equity ownership by black people in businesses operating in South Africa; • increasing the number of black people who participate in management roles in business; • improving the skills of black employees; • assisting small and medium-sized businesses that are majority-owned by black people; • procuring goods and services from business - es that are good contributors to B-BBEE; and • corporate social investment and develop - ment. To aid the South African government in assess - ing the state of transformation of publicly listed companies, the B-BBEE Act, read together with the B-BBEE Regulations, requires that all com - panies listed on the JSE and government entities report to the B-BBEE Commission annually on their compliance with B-BBEE. Other sector-specific reporting regulations include the Consumer Protection Act, No 68 of 2005, which requires the establishment of national norms and standards relating to con - sumer protection that promote a fair, acces -
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