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Lauren Salt and Reitumetse Sebatana | 26 January 2023

Mineworkers in an underground gold mine west of Johannesburg on 12 October 2022. (Photo: Felix Dlangamandla / Daily Maverick)

Failure to comply may result in penalties of between R1.5-million or 2% of the employer’s annual turnover and R2.7-million or 10% of its annual turnover.

With South Africa being one of the most diverse countries on the African continent, equity and inclusion are critical to the future of every sector of its economy. For the mining sector in particular, failure to achieve equity in the workplace could come with greater punitive consequences.

In 2020, the Department of Employment and Labour signed the Employment Equity Amendment Bill, 2020 into law to radically accelerate the realisation of transformation. The bill amends the Employment Equity Act, 1998 (EEA) and the amendments are due to come into effect on 1 September 2023.

The most significant of the bill’s amendments relate to the power of the minister of employment and labour to set sector-specific employment equity targets to which designated employers will be held to account. The bill allows the minister to identify national economic sectors and to determine numerical targets for these sectors, for purposes of administering the EEA. These sector targets are scheduled to apply from the year 2024, and may differentiate between:

  • Occupational levels;

  • Sub-sectors;

  • Regions; or

  • Any other relevant factors.

Before determining the targets, the minister will consult relevant stakeholders and the Employment Equity Commission on the proposed sector targets and will publish any proposals for public comment.

The bill also introduces a certificate of compliance which will be required if any designated employer wishes to do business with the state and which will be issued if the minister is satisfied that:

  • The employer has complied with any applicable sector targets or has raised a reasonable ground for non-compliance;

  • The employer has submitted its most recent employment equity report; and

  • Within the previous 12 months, the employer has not been found to have breached the prohibition on unfair discrimination, or found to have paid wages below the level of the minimum wage by the Commission for Conciliation, Mediation and Arbitration (CCMA).

The director general is also empowered to make recommendations regarding a designated employer’s compliance with its affirmative action obligations, which will include compliance with the relevant sector targets.

Failure to comply with these recommendations within the period stipulated by the director-general may result in penalties between R1.5-million or 2% of the designated employer’s annual turnover and R2.7-million or 10% of its annual turnover, depending on the nature, extent and frequency of the contravention.

The mining sector is already accustomed to the concept of sector targets. The Broad-Based Socio-Economic Empowerment Charter for the Mining and Minerals Industry (Mining Charter), issued under the Mineral and Petroleum Resources Development Act, 2002 (MPRDA), sets minimum thresholds for holders of mining rights in relation to historically disadvantaged persons which, when implemented, are required to be reflective of the regional or national demographics of South Africa.

Employers in the mining space should keep an eye out for updates on the sector targets and make any necessary representations to ensure that the targets reflect what is achievable in light of attrition rates and the talent or skills pool available.

It might be unnerving for employers to not know where the targets might land and how achievable they will be. But there is comfort in the fact that there is an overwhelming body of research that confirms the positive impact of diversity in all its forms on organisational performance.

Employers are encouraged to embrace the amendments to the EEA and participate meaningfully in the journey towards realising transformation for the benefit of their communities, employees and their organisations as a whole. DM

Lauren Salt is an Executive in the Employment Department of law firm ENSafrica. Reitumetse Sebatana is a Trainee Associate in the department.

‘Disclaimer - The views expressed here are not necessarily those of the BEE CHAMBER’.

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