Michelle Naidoo | Partner| Mooney Ford Attorneys
The principle of “legality” applies to all our laws and Ministerial regulations. This means that all laws and regulations, including the move by the Department of Labour to set mandatory employment equity sector targets, may be subjected to judicial scrutiny on grounds procedural fairness (lack of due process) and reasonableness. Reasonableness is comprised of rationality and proportionality. A rational decision is one which is rationally linked to the purpose for which it was taken considering the purpose of the empowering provision, the information before the decision-maker when a decision is made, and the reasons given by the decision-maker for making the decision.
Employment equity sector targets are anticipated to be gazetted for public comment very soon. The window period for industries/sectors and the public to have their say will be 30 days according to communications issued by the Department of Labour. Based on the latest feedback to the manufacturing industry, the Department of Labour’s expectations are high. In my opinion, too high and unreasonable. Here is a brief analysis about why:
The sector target for representation of Black persons (which include African, Coloured, and Indian employees) is 40% for this level. The “final” proposal prescribes to enterprises operating in the manufacturing sector that the following levels of representation should be achieved per race group classification:
· African, from the existing 10.2% representation level to 34.8% (a leap by 25%)
· Indian, from the existing 14% representation to 1.2% (a back-track by 13%). I also find it odd that this target is lower than the EAP for this race group, which is 2,7%.
· Coloured, from the existing 5.3% representation to 4% which is again lower than the EAP, which is 9.1%.
· For White representation, no sector targets are mentioned at all. This is incongruent with the Employment Equity Act as white females are recognised as part of the group that falls under the category of designated groups, and White females are thus supposed to be included as beneficiaries under the Employment Equity Act.
· No regard has been given to provincial EAP data which is very relevant, especially for employers operating in a single geographical area.
The sector targets that are expected to be gazetted for public comment for the manufacturing sector for senior and junior management are the following:
It is important for Employers and organisations representing sectors to have their say during the public comment phase. Failure to achieve sector targets may impact on the Department
of Labour’s decision to issue your enterprise with an Employment Equity compliance certificate. An Employment Equity compliance certificate shall soon be a pre-requisite for tenders or contracts with government departments.
We can assist with formulating your representations during the public comment phase of the process and with all your Employment Equity compliance requirements.