The Constitution of the Republic of South Africa, 1996 is built on a fundamental principle of the achievement of equality. Section 9 of the Constitution recognises that equality has two critical dimensions. The first, known as formal equality, prohibits unfair discrimination and ensures equal treatment for all individuals. The second, referred to as substantive equality, goes a step further by acknowledging the need to examine the social and economic conditions of individuals and groups. This approach focuses on implementing remedial measures to address historical disadvantages, which aligns with its goal of achieving true or meaningful equality, not just formal equality.

The Employment Equity Act, No. 55 of 1998, as amended (hereinafter the EEA) was passed to align with the aforementioned principles. The primary purpose of this Act is to eliminate unfair discrimination in the workplace and to ensure that affirmative action measures are implemented. These measures are designed to ensure that suitably qualified individuals from designated groups are afforded equal employment opportunities. Through this framework, the EEA aims to ensure fair representation at all occupational levels within the workforce.

What is an employment equity plan

A key component of the EEA is the requirement for designated employers to design and implement an employment equity plan. The purpose of this plan is to enable employers to make reasonable progress toward achieving employment equity within their businesses. By implementing an employment equity plan, employers demonstrate their commitment to eliminating unfair discrimination in the workplace and to achieving equitable representation of designated groups through affirmative action measures.

Who is considered to be a designated employer

Under the EEA a designated employer means:

• Employers who employ 50 or more employees
• A municipality, as referred to in Chapter 7 of the Constitution
• An organ of state as defined in Section 239 of the Constitution, but excluding the National Defence Force, the National Intelligence Agency and the South African Secret Service
• Employers who have been declared designated employers under a collective agreement

These designated employers are legally required to implement employment equity plans in their workplaces.

Key issues considered in the employment equity plan

An employment equity plan must clearly detail the actions an employer will take to meet employment equity objectives. This includes setting annual targets, implementing affirmative action measures and establishing numerical goals to ensure fair representation of designated groups. The plan should also outline timelines for achieving both numerical and non-numerical goals, include a monitoring and evaluation process, define procedures for resolving disputes, and identify the individuals responsible for implementation.

The Employment Equity Amendment Act, No. 4 of 2022 became operational from 1 January 2025. Subsequently, two sets of employment equity regulations on reporting forms and other templates, as well as the five year sector employment equity targets for the 18 economic sectors were published on 15 April 2025, providing guidelines to employers and employees on how to interpret and implement the recent employment equity amendments and sector targets.

Following recent amendments, employers are now required to adopt a five year employment equity plan covering the period from 1 September 2025 to 31 August 2030. Employers who become designated after this period begins may develop a plan that spans the remaining duration.

Reporting period for online submissions

The online reporting window generally runs from the first working day of September until the 15th of January of the next year for online submissions. The online submission employment equity portal opened on 1 September 2025 and the closing date for submissions is 15 January 2026.

Consequences of non-compliance

Failure to comply with the EEA can have serious legal and financial repercussions for designated employers. The Labour court also has extensive powers under the Act, including the authority to impose fines up to and including R 2,7 million or 10% of the employer’s annual turnover, whichever is the greater.

For designated employers, implementing an employment equity plan is not just a legal obligation but a necessary step toward building an inclusive workplace. By engaging with employees, analysing policies and reporting progress, employers can ensure they contribute to the broader goal of achieving true equality in South Africa’s workforce.

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Update on the BCEA:  maternity leave is out and parental leave is in;  apex court levels the playing field. On 3 October 2025 the Constitutional court declared Sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act 75 of 1997 (BCEA) unconstitutional. These sections govern maternity, parental, adoption, and commissioning parental leave.  The groundbreaking judgment was handed down in the cases of Van Wyk and Others v Minister of Employment and Labour and Commission for Gender Equality and Another v Minister of Employment and Labour and Others [2025] ZACC 20.

The Constitutional court has recognised that South Africa’s parental leave laws were unfair to many families and found that the sections dealing with maternity, parental, adoption, and commissioning parental leave were unconstitutional because they failed to treat all parents equally and with dignity.

Importantly, the court affirmed that all parents, whether through birth, adoption, or surrogacy should be free to decide together how to share the responsibilities of raising their child. Laws that prevent families from making those choices without any legitimate reason not only discriminate but also intrude on their personal/family lives, which unnecessarily impacts their human dignity.

Previously

Before this landmark judgment, the BCEA provided for differentiated leave entitlements based on the role of the parent. Specifically:

• Section 25 granted a birth mother at least four consecutive months of unpaid maternity leave, typically starting one month before the expected due date.
• Section 25A allowed ten days of unpaid parental leave to the father or non-birth parent, to be taken for the first ten days after the child’s birth or adoption.
• Section 25B provided for unpaid adoption leave of ten weeks to one adoptive parent, while the other adoptive parent would only qualify for parental leave in terms of Section 25A.
• Section 25C provided a similar framework of unpaid commissioning parental leave for commissioning parents in a surrogate motherhood agreement, allowing one parent 10 weeks of unpaid leave whereas the other would qualify for parental leave in terms of Section 25A.

The new ‘law’ under the BCEA

Even though the literal text of the BCEA has not yet changed, the court has given Parliament 36 months to enact remedial legislation which addresses the unconstitutionality of these sections and until then the court has given an interim “reading-in” of amendments to the BCEA to cure the inequality in parental leave.  It is summarised as follows:

1. Parental leave

• Single parents or the only employed parent: at least four consecutive months parental leave.
• If both parents are employed: a combined entitlement of four months and 10 days, taken concurrently or consecutively as agreed.
• If no agreement: leave is split equally as far as possible, starting from the child’s birth, provided that female employees who are giving birth to the child may begin leave from four weeks before birth, or earlier if medically required, and may not return to work for six weeks after birth, unless certified fit by a medical practitioner.

2. Adoption leave

• A single or only employed adoptive parent of a child under two years of age: four months adoption leave.
• If an adoption order is made in respect of two adoptive parents, both parties are entitled in the aggregate to four months and 10 days, taken in any agreed manner (concurrently, consecutively, or a mix).
• If no agreement: adoption leave is apportioned as near as possible to half each, provided that such balance is completed within a period of four months from the adoption of the child.
• Leave may start on the date that the adoption order is granted or placement by a competent court pending the finalisation of adoption, whichever is earlier.

3. Commissioning parental leave

• Starts from the date a child is born as a result of a surrogate motherhood agreement.
• A single commissioning parent in a surrogate motherhood agreement: four months commissioning parental leave.
• Two commissioning parents: they shall each be entitled in the aggregate to four months and 10 days combined, taken as agreed including concurrently or consecutively, or partly concurrently and partly consecutively, and if no agreement then the leave is apportioned equally, provided that such balance is completed within a period of four months of the child’s birth.

Interestingly the term “maternity leave” has been removed from these sections and replaced with “parental leave”. This judgement marks a significant shift towards equality and flexibility in parental leave whilst recognising diverse family structures and ensuring more equal access to parental leave.

Each workplace is unique and this judgement might not affect all employers in all industries the same. Employers should contact the LWO for expert advice on their individual workplace needs and update internal policies and practices to remain compliant and support all parents fairly.

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The Labour Relations Act 66 of 1995 (LRA) defines a strike as the partial or complete concerted refusal to work, or the retardation or obstruction of work by employees for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest. In many cases, the reason for a strike is due to annual increases or employees being dissatisfied with the working environment.

South Africa’s Constitution grants each employee the right to strike. The LRA sets out certain provisions for a strike to be seen as a protected strike. If these procedures are not complied with, the strike will be seen as an unprotected strike.

When is a strike protected and unprotected?

When dealing with a grievance or issue in the workplace, employees should first make use of the internal grievance procedure. When the outcome of the grievance is not satisfactory, the employee can refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA). A commissioner will attempt to resolve the dispute through conciliation. If the dispute cannot be resolved, or after the lapse of 30 days since the referral of the dispute to the CCMA, the commissioner will issue a certificate stating that the matter is unresolved. At that point the employee can elect to refer the matter to arbitration, or to start the process of going on strike. At the same time the commissioner must also determine the picketing rules. Employees should in all instances, notify the employer of their intention to strike by giving the employer at least 48 hours’ notice of the intended strike.

An employer does not have to remunerate an employee for services an employee does not render during a protected strike. The no-work-no-pay principle will apply.

When a strike does not comply with the required procedures in terms of the LRA, the strike will be deemed “unprotected”.

What is a lock-out?

A lock-out is a response by an employer once the employer receives the written notice that the strike will proceed. The definition of a lock-out is the employer’s exclusion of employees from the employer’s workplace for the purpose of compelling the employees to accept a demand in respect of any matter of mutual interest. The employer will give 48 hours’ written notice of a lock-out to the trade union and non-union employees.

Steps an employer should follow prior to dismissal

In terms of LRA Schedule 8 Code of Good Practice: Dismissal, if a strike does not comply with the LRA it is regarded as misconduct, where an employer may take disciplinary action. The type of disciplinary action taken will depend on the facts of each case, including the seriousness of the contravention of the LRA, attempts made to comply with the LRA and whether the strike was in response to unlawful, unfair or unreasonable conduct by the employer.

In terms of the recently updated Code of Good Practice: Dismissal, the seriousness of a contravention must be assessed with reference to several factors, including:

• The conduct of the parties involved in the dispute, as well as the conduct of any other person that may influence the seriousness of the contravention.
• The legitimacy of the strikers’ demands.
• The duration and timing of the strike.
• The harm caused by the strike.

Prior to dismissal, the employer should:

• Inform the trade union at the earliest opportunity of the strike/industrial action and provide the union with an opportunity to consult with the employees.
• Consider and discuss any representations made by the trade union regarding the intended course of action.
• Where no trade union is involved, engage directly with leaders or representatives of the striking employees.
• Issue an ultimatum to the employees in clear and unambiguous terms, stating that they are participating in unprotected strike/industrial action, what is required of them (i.e. to resume work), and what the consequences will be if they fail to comply (including possible dismissal).
• Allow employees sufficient time to reflect on the ultimatum and, if necessary, obtain advice, before deciding whether to comply or not.
• If employees fail to comply with the ultimatum, issue a final ultimatum restating the requirement to resume duties and the consequences of continued non-compliance.

Employers should remember that prior to a dismissal, a hearing always needs to be scheduled to ensure that an employee has a fair opportunity to state his/her side of the case.

Contact the LWO for any advice or assistance!

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At the LWO, our mission is clear: to play a dynamic role in the management of labour relations that will contribute to a productive and sustainable work environment. Our workshops play a key role by providing practical and relevant training that focuses specifically on the employer’s realities. By addressing current topics and explaining legal requirements in an understandable way, our workshops enable employers to be proactive, limit risks and build a fair, legal and productive workplace.

For the past 35 years, the LWO has had a world-class team of highly qualified legal advisors who provide labour law advice and labour law services nationally to employers on a daily basis. Since 2023, the LWO has again offered a series of practical workshops focusing on labour law for the employer. Workshops are offered online via a digital platform such as Microsoft Teams, as well as in person.

Workshops 2025

During the first seven months of 2025, approximately 25 workshop sessions have already taken place. We are excited to announce that there are many more scheduled workshops that will take place before the end of 2025. Topics include:

• How to handle grievances
• Factfinding and investigative process for a successful hearing
• How to deal with alcohol, drugs and absenteeism
• What should be in your workplace employment contract and included in your onboarding process 101

Agricultural sector

• Absenteeism and disciplinary hearings
• Preparing for a basic conditions of employment inspection
• Handling alcohol and drugs in the workplace
• What to do if there is an injury on duty (IOD)
• Forms of termination of employment

Workshop schedule

The LWO workshops are designed to keep employers up to date with the latest labour legislation and offer practical advice on how to effectively address workplace challenges. Click on the link below to see the full schedule of workshops, as well as links to register. Book your place early! https://lwo.co.za/one-stop-labour-shop/training-courses/

We have great appreciation for business owners who play such a critical role in our country’s economy and are proud of this initiative to make a difference at the grassroots level in every employer’s business. Did you know that the LWO also offers workshops on demand? We understand that every business is unique and therefore we invite you as an employer to contact us with your specific training needs regarding labour law topics need that is not covered in the schedule, or with any questions about the workshops.

We look forward to welcoming you to our sessions! We are here to support your growth and success with custom designed solutions.

Contact Hannes Latsky, LWO Training and Compliance Manager, for more information about workshops at 0861  101  828  x303 or send an email to hannes@lwo.co.za

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The Minister of Employment and Labour, Nomakhosazana Meth, published the adjustment to the national minimum wage for 2025 in the Government Gazette on 4 February 2025. The new national minimum wage, which came into effect on 1 March 2025, is set at R28.79 per normal working hour. This wage applies to employees who fall under the scope of the Basic Conditions of Employment Act, Act 75 of 1997 as amended (BCEA).

National Minimum Wage Commission

In terms of the National Minimum Wage Act, Act 9 of 2018 as amended (NMWA), the National Minimum Wage Commission (the Commission) annually assesses and reviews the national minimum wage. The Commission then makes a recommendation to the Minister of Employment and Labour to adjust the wage.

The criteria that the Commission generally uses to determine the proposed increase is the Consumer Price Index (CPI) plus an additional percentage point (usually 1.5%). Key factors as prescribed by the NMWA are also taken into account and include the following: inflation and cost of living, wage levels and collective bargaining outcomes, the Gross Domestic Product (GDP) and productivity. Other factors include employer viability and the impact on employment, as well as public input.

The Department of Employment and Labour indicated in a media release on 18 December 2024 that the Commission, in its preliminary report, is examining an annual increase in the national minimum wage in the region of CPI + 1.5% for 2024/2025.

Given information already available from Statistics South Africa at the time of the article, we can see that the CPI increased by 0.1% from 2.9% for November 2024 to 3.0% for December 2024, which therefore calculated the national minimum wage increase at approximately 4.4%. The Commission accordingly made this proposal to the Minister.

It is interesting that the new wage is also in line with the overall average CPI for 2024 of 4.4% as published by Statistics South Africa earlier this year.

Exemption

As an employers’ organisation, we know that businesses operate in a challenging environment. The national minimum wage and associated increases often place additional pressure on employers as the payment of the wage is non-negotiable. It is important for employers to be aware that failure to comply with the NMWA can result in severe fines.

The NMWA states that if employers cannot afford the national minimum wage, they can apply online for exemption (http://nmw.labour.gov.za). If exemption is granted, the employer will still have to pay at least 90% of the national minimum wage. Exemption is only valid for a maximum period of 12 months.

As part of the exemption application, the employer must provide a good reason for the exemption, as well as evidence of meaningful consultation with employees and representative trade union(s) where applicable. The regulations further stipulate that such an application will not be granted if the employer does not meet the affordability elements in terms of profitability, liquidity and solvency. The calculations for these tests are included as part of the schedules to the Act. Exemption will only be considered if the employer is up to date with all statutory payments, including the Unemployment Insurance Fund, the Occupational Injuries and Compensation Fund (Compensation Commissioner) and any other applicable levies.

The outcome will confirm the date of commencement of the exemption, as well as the period for which it is granted, the wages that the employer is obliged to pay and any other relevant conditions. If exemption is granted, a copy of the exemption certificate must be displayed in the workplace and provided to the employees concerned and representative trade union(s) where applicable. If the application is unsuccessful, the employer will receive a notice stating the reasons for the refusal.

This article is intended to be considered general information and is not intended to be considered legal advice and employers are advised to contact us to confirm the correct minimum wage applicable to their specific industry, as it may differ from the national minimum wage as set out above.

Contact the LWO for any advice or assistance!

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