The recent demotion of the Western Province Under-16 rugby team from play because it failed to meet transformation targets highlights the importance of maintaining equitable representation in sports and the workplace.
During Craven Week in June 2023, the Western Province Under-16 rugby team, who were unbeaten, were demoted from playing the main game. The reason was that the team did not meet its targets in accordance with the South African Schools Rugby Association's rules on transformation. The Western Province side had reportedly called two white players up to replace two players of colour who were injured in a previous game. This rotation of players resulted in the Western Province team having fewer than the required 11 players of colour in their match-day 23 players.
Diversity and inclusion imperatives in the sports industry are not new. They exist at all levels of participation.
SA Rugby has longstanding initiatives to make rugby accessible to all who wish to participate, including women, disabled persons, and people in rural areas. The existing industry rules on transformation reflect this stance. However, the incident at Craven Week goes to the heart of the emphasis currently placed on reaching and maintaining equitable representation, both on the sports field and in the workplace.
At the professional level of sporting activities, the Employment Equity Amendment Act (EEAA), which was signed into law on 12 April 2023, also comes into play. Employment equity applies to all designated employers, including professional rugby franchises. The professional sportsmen, along with all other colleagues, are the employees. To ensure the equitable representation of suitably qualified people from designated groups at all occupational levels in the workforce, the EEAA empowers the Minister of Employment and Labour to set employment equity targets for economic sectors and geographical regions. It has shifted away from the aspirational goals of the past to create enforceable targets.
While the effective date of the EEAA is yet to be proclaimed, proactive steps are required by employers and their employment equity committees to achieve sector targets to avoid the consequences of non-compliance. However, a measured approach is equally important, because policies implemented too hastily may give rise to discrimination claims.
The Minister has identified 18 sectors where numerical targets on equitable representation have to be met. Sports activities fall within the Arts, Entertainment and Recreation Sector.
Non-compliance with the numerical sector targets must be considered in the context of general non-compliance under section 42 of the EEA, as well as in relation to the issuing of certificates of compliance by the Minister. Amended section 42 provides that, in determining whether an employer is implementing employment equity in compliance with the EEA, compliance with sectoral targets may be considered.
The amendment to section 53 of the EEA provides that an employer will only be able to contract with the State if it has complied with the numerical target set out in section 15A, or raised a reasonable ground to justify non-compliance.
Further to the EEAA, on 12 May 2023, the Minister published the draft regulations to the EEAA, identifying the numerical targets applicable to each sector, on a national and provincial basis. If an employer is based across and in various provinces throughout South Africa, it will be required to apply the numerical targets applicable on a national or provincial basis. Employers based in a particular province should only apply the applicable provincial numerical targets.
The numerical targets call for employers to classify employees according to Top Management, Senior Management, Professional Qualified and Skilled employees. Some irregularities have been identified in the draft regulations, and several industry stakeholders have addressed these concerns to the Department of Employment and Labour.
In a further twist, Solidarity and the Minister of Employment and Labour concluded a settlement agreement in the Commission for Conciliation, Mediation and Arbitration on 28 June 2023 (settlement agreement), which will be gazetted as part of the 2023 Employment Equity regulations. It remains to be seen whether the existing 2023 draft regulations will be withdrawn and reissued, incorporating the contents of the settlement agreement, or whether a second set of regulations will be published. Read our insights about the settlement agreement.
Developments are still unfolding in this area of the law. The Webber Wentzel team continues to monitor official announcements on the draft regulations and the effective date of the Amendment Act.