By Sybrand Burger
As from 15 September 2022 all employers with 10 or more employees are required to submit compliance reports in terms of the Affirmative Action Act.
“Relevant Employers” are a class of employers designated by the Minister of Labour, Industrial Relations and Employment Creation, in terms of the Affirmative Action (Employment) Act, 1998 (Act 29 of 1998) (the “Affirmative Action Act”), to implement three-year Affirmative Action Plans in the workplace, addressing the elimination of employment practices identified as employment barriers against persons in designated groups, availing and facilitating positions of employment to such persons, and ensuring that such persons are equitably represented in various positions of employment. Persons from designated groups are identified as women, racially disadvantaged persons, and persons with disabilities.
On 6 August 1999, when the Affirmative Action Act came into effect and the first regulations were promulgated thereunder, “relevant employers” were those employers who employed 50 or more employees. In 2006, the number of employees that would cause an employer to fall within the ambit of the Affirmative Action Act was reduced to 25. The Government Notice No. 275 published on 15 September 2022 greatly expands on the category of employers to include small business as “Relevant Employers” for purposes of the Affirmative Action Act, as its provides for the inclusion of employers who employ ten (10) or more employees.
Accordingly, small businessowners who employ as few as ten employees are now required to comply with Affirmative Action regulations. Compliance entails, amongst other things, the submission and implementation of an Affirmative Action Plan.
Formulating the Affirmative Action Plan will require quarterly consultations between the employer and their employees, represented by a selected and elected Employment Equity Committee. The Employment Equity Committee must be a true representation of the workforce profile of the employer and, in certain instances, will include trade unions.
In addition, it will be necessary for the employer to analyse and review their workforce in order to develop and implement their Affirmative Action Plan. This must be done to ascertain whether their workforce is adequately comprised of persons from designated groups and render an evaluation of the employer’s employment practices. The employer is also required to compile a statistical report on the job categories and grades or equivalents thereof of employment offered, and the representation of persons from designated groups in each such category and grade or equivalents thereof; the number of employees hired and promoted and those whose services have been terminated in the preceding twelve months; salary scales and number of persons from designated groups in each scale; and such information as may additionally be required by the Commissioner.
Employers who are newly included as “Relevant Employers” by virtue of the regulations published in the Government Notice should take note that they must register as a “Relevant Employer” at the Employment Equity Commission. “Relevant Employers” have 18 months from the date they have been identified as “Relevant Employers” (i.e. 15 September 2022) to submit their first Affirmative Action Report to the Commissioner. The Affirmative Action Report must contain the statistical report, the Affirmative Action Plan, a summary of Affirmative Action measures (including numerical goals for employment of people from designated groups), names of every non-Namibian citizen employed by such employer, an understudy, who must be a Namibian citizen, identified to learn from the non-Namibian citizen and the accompanied training program indicating the measures taken by the non-Namibian citizen to train and advance the understudy, and records and documents used in the preparation of the report in question.
Newly included “Relevant Employers” must note that it is an offence to not comply with the Affirmative Action Act and its prior and new regulations, for which extensive fines, or imprisonment, can be imposed.
Kindly note that this note is not intended to be legal advice. The note is distributed for information purposes only and Cronjé Inc or its employees will not be liable for any direct or indirect loss that may be suffered as a result of reliance on the content of this note. The is confined to matters of Namibian law, as at the date hereof. In the event that the content hereof is relevant to any reader, we advise that the reader is to approach their attorney for legal advice.
 Government Notice No. 158, 23 July 1999,
 Government Notice No. 95, 8 June 2006