FAQ's
If you have questions that are not answered here, please e-mail them to ee@labour.gov.za
Q
How will the Department of Labour know that I am a designated employer?
The Department has, using a variety of existing data sources, compiled a national database of all employers from whom it expects to receive reports. This database will be updated on an ongoing basis. The Department will follow up on employers from whom reports are expected and who do not report.
Q
How do I become a voluntary designated employer?
By submitting a report (form EEA 2) to the Department of Labour and indicating on this form in Section A that you are a voluntary designated employer.
By becoming a voluntary designated employer, companies will become eligible for certification which will in turn be required for Government tender applications.
Q
What if my employee numbers vary from time to time and only occasionally reach the 50
mark?
If you have 50 or more employees at the date on which the report is due, you will be required to report. Similarly if you have 150 employees at the date on which the report is due, you will be subject to the same reporting requirements as an employer who employs 150 or more employees.
Q
Do foreign nationals qualify as members of designated groups?
The Act requires that employers compare their workforce profiles with relevant local demographics and strive to be representative of these. Although foreign nationals may be included in the various designated groups reported on by the employer, it would be unacceptable to use these employees as the basis for setting numerical goals.
Q
What about employees from temporary employment services?
Temporary employees of an employer who have worked for three continuous months or more must be included in all reports to the Department of Labour even where they have been procured through an employment agency.
Temporary employment services who employ 50 or more employees or whose turnover exceeds the threshold specified in Schedule 4 of the Act are required to report to the Department of Labour.
By temporary employment services, also referred to as flexible staffing, we refer to agencies who recruit and place employees for their clients on a basis other than permanent employment.
These temporary employment services are also required to report to the Department of Labour on their staff complement, even if this would result in a "double count" of the same employees by the agency and the employer where they are placed.
Q
Why the different reporting requirements for employers with fewer than 150 employees?
The Department of Labour would like to make it easier for smaller employers to comply with Chapter 3 of the Act and in this regard the following less onerous obligations are placed on these employers:
- reports are due every second year
- only selected sections of forms EEA 2 and 4 needs to be completed
- records have to be kept for shorter periods.
Non-designated employers, this includes employers with less than 50 employees with an annual turnover less than that specified in Schedule 4 of the Act, do not have to report to the Department of Labour at all, although these companies still have to comply with all other provisions of the Act.
Q
What is the status of the Code of Good Practice?
The code does not impose any legal obligations in addition to those in the Act and the failure to observe it does not, by itself, render a designated employer liable in any proceedings, except where the code refers to obligations that are required by the Act.
Q
What happens if, for some reason, an employer can’t report on time?
As provided for by Section 21(5)b, employers may notify the Director-General that they are unable to report. The notification should contain the reason for this request and should be sent to the Employment Equity Registry.
Q
What happens if an employer does not report?
The Department of Labour has established a database of employers from which it expects to receive reports. Once initial reports have been received from employers, the Department of Labour will be able to identify those employers who did not report and these employers will be issued with a written undertaking to comply. The routine inspections conducted by the Department of Labour will also include a checklist of employer obligations for the Act.
Q
How will the Department of Labour use these reports?
Information contained in the reports will create a comprehensive database of employment profiles and patterns. The Department of Labour will use this information, amongst other things, to compile compliance profiles by industry, region and a range of other demographic factors.
These compliance profiles will assist the Department of Labour to determine appropriate enforcement strategies to ensure employment equity.
The Commission for Employment Equity will use the information collected in the forms to establish norms and benchmarks which could provide assistance to employers in setting their numerical goals.
Companies will also be prioritised for Director-General reviews based on the reports received.
Q
How does one deal with the qualitative aspects of the report?
Section 19(1) of the Act requires employers to indicate barriers identified and affirmative action measures adopted to address these barriers. In form EEA 2, Section F, an easy tick and cross format is provided for employers to report on these barriers and affirmative action measures. Employers are also required to provide a brief description where this is appropriate.
Q
How will the Department of Labour use the income differential statement?
This information will be used by the Employment Conditions Commission to determine wage gap benchmarks and set norms for each occupational group and level.
Q
If parties to collective bargaining want to access to the income differential statement,
what must they do?
They should request this information, in writing, from the employer. It is important to note, however, that this information is subject to section 16 (4) and (5) of the Labour Relations Act 66 of 1995. The employer must notify the party in writing that this information is confidential.
An employer is not required to disclose information:
- that is legally privileged
- that the employer cannot disclose without contravening a prohibition imposed on the employer by any law or order of any court
- that is confidential and, if discussed, may cause substantial harm to an employee or the employer
- that is private personal information relating to an employee, unless that employee consents to the disclosure of that information.
Q
What should public companies publish?
A summary of their report (form EEA2) to the Department of Labour, excluding the income differential statement. It is recommended that companies include at least section B of form EEA2 in the summary.
Q
Employers who become designated employers after the initial reporting dates
Employers who become designated after the initial report date (June or December) and who should submit a FIRST report, and then only submit a report again in the FOLLOWING year. Regardless of the month in which this employer submits his first report, the second report will only be due in the NEXT year in the case of an employer with more than 150 employees, or two years hence in the case of smaller employers.
Q
Will the Minister of Labour issue any other codes?
Yes. The Minister plans to issue Codes in relation to employment policies and practices, managing disability, and HIV/AIDS in the workplace.