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Article 11/2026

Which principles regulate the choice of economically active population (EAP) where a designated employer operates in more than one province?

Which principles govern the election of EAP where the predominant/major part/ majority of the operations of the designated employer exist?

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The aforesaid principles are to be extracted from EEA8 and EEA12.

EEA8

Scenario 1: where the designated employer operates in more than province

  • The designated employer must consider the nature of its operations and the geographical area(s) of its operations.
  • It must choose either the national or regional EAP for the analysis in terms of s19 of the EEA (inclusive of its EEA plan and reporting).

Scenario 2: where the designated employer operates in more than one province and the predominant/major part of its operations is in one province

  • The designated employer is to choose the EAP of that province.
  • Nevertheless, it must have regard to the EAP of the different provinces within which it operates, when setting EE targets.

EEA12

Scenario 1: where the designated employer operates in more than one province

  • It must consider the nature of its operations and the geographical area of its operations.
  • It can choose either the national or provincial EAP for each province in which it operates.

Scenario 2: where the designated employer operates in more than one province and the largest part of its operations is conducted in one province

  • It may choose the EAP of that province.
  • Nevertheless, it must have regard to the EAP of the other provinces within which it operates, when EE targets are set.
  • Designated employers using either the national or provincial EAP of a province, where the majority of their operations are, must nevertheless have regard to the variations between the EAPs of the different provinces when setting EE targets.
  • Designated employers must use the EAP chosen for the entire duration of the EE plan for the relevant 5-year sector targets.
  • The analysis of the workplace must be based on a snapshot of the employee distribution in various occupational levels on a particular date ito race, gender, disability, per occupational level on that date.

Concluding remarks

  • In terms of both EEA8 and EEA12, designated employers operating in more than one province may elect to choose either the national or regional (provincial) EAP for conducting the required analysis, preparing an EE plan and reporting to the Department.
  • EEA8 refers to the predominant or major part of the operations of a designated employer located in one province, whereas EEA12 refers to the majority part of the operations in one province – in both these instances, the designated employer must nevertheless have regard to the variations between the EAPs of the different provinces when setting targets to achieve equitable representation of employees from designated groups in all occupational levels.
  • Likewise, both in respect of EEA8 and EEA12, when a designated employer uses the national EAP, it must nevertheless also have regard to the above variations.
  • The true question to be determined is what constitutes the scenario entailing that the predominant/major/largest part of the employer’s operations is located in a specific province. Unlike the scenario in terms of Regulation 9(7) of Gazette 2, that specifically states that, if a designated employer operates in more than one sector, it should apply the numerical targets for the sector in which the majority of employees are engaged, a similar provision is not found in Gazette 2, dealing with this identified issue.
  • The viewpoint is held that, where such designated employer operates in more than one province, what will determine whether a predominant/ major part/largest part of the employer’s operations is located in a specific province will undoubtedly include whether or not the majority of its employees are employed in a specific province. What is uncertain is what role, if any, the following factors would play in identifying a predominant/major part/largest part of the employer’s business:
    • revenue
    • clients/customers
    • operational presence
    • considerations of the core business of the employer versus its non-core business, such as sales and distribution, etc
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How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

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