By: Michelle Naidoo | Partner | Mooney Ford Attorneys

Following the controversial publication of the draft regulations on proposed sector targets in 2023, a second draft was published on 1 February 2024.  The public is invited to comment on the draft within 90 days (by end April 2024).

Several aspects of the draft regulations remain, in principle, unchanged from the previous draft such as:

• 18 defined industry sectors;
• sector targets are to be achieved within five years and targets must be established for each of the five years;
• sector targets are established for the four upper occupational levels (Top, senior, mid and junior management);
• sector targets need to be applied proportional to the economically active population (EAP);
• companies with national operations must factor in the national EAP, enterprises that operate in a specific province must factor in the provincial EAP;
• numerical goals and targets must still be established for semi-skilled and unskilled occupational levels.

The new developments are the following:

• the sectoral numerical targets shall be considered as the minimum targets and are key milestones towards achieving the equitable representation of the different designated groups within each occupational level in workplaces;
• designated employers that exceed the set numerical target of a particular racial/gender group, the employer may not regress in that particular racial/gender group;
• designated employers that are under-represented by race/gender must establish numerical goals for the under-represented groups;
• numerical targets are established for designated groups as a whole, as opposed to specified race groups (African, Coloured and Indian). Notwithstanding this grouping of designated groups as a whole, employers are obliged to still factor in the EAP representation of individual race groups as well as the applicable gender representation, when implementing their compliance and reflect this in their employment equity plans;
• The implementation of affirmative action measures, to prepare and implement an employment equity plan, reporting and compliance analysis of affirmative action in any workplace must consider the inherent requirements of the job, the pool of suitably qualified persons, rate of turnover, natural attrition and recruitment/ promotional trends in the in a workplace.

The draft Code, in addition, provides that the following shall be recognized as justifiable/reasonable grounds for not complying with the sectoral targets: these include, insufficient recruitment opportunities, insufficient promotion opportunities, insufficient target individuals from the designated groups with the relevant qualification skills and experience, CCMA awards/court orders, transfer of business mergers acquisitions and impacts on business economic circumstances.  If these reasons apply to a designated employer, then no penalties or any form of disadvantage shall be imposed on that employer.

It is important to understand that despite the intention to impose employment equity sector targets, the legal position remains unaltered that when implementing affirmative action, no absolute barrier may be placed upon employment practices affecting any persons from any race group stands. Furthermore, no employment termination of any kind may be effected as a consequence of implementing and applying affirmative action.

Designated employers, Industry sector organizations and leaders are encouraged to have their say in the public comment phase.  We are proud to be representing and advising the Printing Industry of South Africa in this process.