Labour Minister Mildred Oliphant is ‘confident’ that SA Human Rights Commission concerns about the constitutionality of government’s affirmative action policy and the Employment Equity Act ‘will be deemed baseless’. ‘All … laws are subjected to … constitutional muster’ before coming into effect, she told shop stewards and union officials yesterday (Thursday) at a CCMA conference. According to Pam Saxby, for Legalbrief Policy Watch, the Minister is apparently equally unperturbed by the commission’s ‘conclusion’ that the Act and the policy underpinning it are ‘not in sync with international conventions’. The Minister appears not to have considered the implications of the commission’s pronouncements for a draft Employment Equity Amendment Bill and regulations gazetted last week for comment. According to Oliphant, by promulgating section 53 of the Act (state contracts) and introducing ‘slightly more severe fines’ among other things, once in force the draft Bill will trigger ‘a change in compliance patterns’.
It is now two weeks since Oliphant used the final paragraph of her speech at a National Economic Development and Labour Council summit to announce that government has been given six months to develop measures for addressing aspects of the Act found wanting by the commission in its 2017/18 equality report. Summarising key findings, the report asserts that government’s ‘failure to measure the impact of various affirmative action measures … (based on) need and disaggregated data’ violates international law obligations ‘especially’ in respect of ‘the extent to which such measures advance indigenous peoples and people with disabilities’. Further, ‘the implementation of special measures in the employment equity sphere is … misaligned to the constitutional objective of achieving substantive equality to the extent that … (it) may amount to rigid quotas and absolute barriers as opposed to flexible targets’. ‘This practice may inadvertently set the foundations for new patterns of future inequality and economic exclusion within and among vulnerable population groups,’ the summary notes.
In an interesting twist – and possibly taking advantage of a captive audience – the Minister made full use of her platform to condemn the opponents of ‘robust labour protection’. According to Oliphant, they spend ‘sleepless nights … plotting how to … side-step their legal obligations’ – employing ‘the best labour consultants in the country’ to ‘help them’ do so ‘without being detected’. Having the necessary financial ‘resources’, they have developed ‘complex ways’ of ‘interpreting the law’ to suit them and ‘are not shy to go all the way to the Constitutional Court, just to prove a point’. To illustrate what she believes to be widespread attempts by errant employers to ‘twist the interpretation’ of section 198 of the Labour Relations Act (temporary employment services), Oliphant referred to a recent Constitutional Court judgment without naming the parties concerned, nevertheless expressing disappointment that ‘workers did not celebrate’ their victory.