By Michelle Naidoo | Partner | Mooney Ford Attorneys
There is no need to fuss over the recent settlement agreement concluded between the trade union Solidarity and the South African government, represented by the Minister of Labour. Contrary to the widely publicised fuss, the settlement does not bring on any significant change to the implementation and enforcement of employment equity legislation in South Africa.
The position that designated employers must implement affirmative action measures and apply affirmative action in recruitment and promotions remains unchanged. As has always been the case, since the inception of the Employment Equity Act (EEA) in December 1999, the position that affirmative action measures include preferential treatment and numerical goals, but excludes quotas remains solidly entrenched in section 15(3).
Designated employers have also, since the inception of the EEA, have been legally prohibited from creating any absolute barriers to prospective, continued employment or advancement of people who are not from designated groups. A bar on quotas and threats to job security as lawful affirmative action measures has never been sanctioned in terms of our EEA. Thus, the settlement reached simply reaffirms the existing provisions of the EEA.
From our experience, the factors below have historically been relied on, in practice, to justify not meeting numerical targets/goals. Having said that, it is worth noting and acknowledging that formalising these factors, as acceptable reasons for deviation from the soon-to-be imposed sector targets, will assist designated employers.
“Workplace justifiable/reasonable grounds for not complying with the targets as set by the employer and/or any other targets set by any other party, may include:
- insufficient recruitment opportunities;
- insufficient promotion of opportunities;
- insufficient target individuals from the designated groups with the relevant qualifications/skills and experience;
- CCMA award/court order;
- transfer of a business;
- merger/acquisition; and
- impact on business economic circumstances.”
The settlement agreement does not negate the intention of the Department of Labour to enforce sector targets or make it mandatory for businesses to apply for employment equity compliance certificates should they desire to do business with the State. Private companies may also make a move to include a request to produce an employment equity compliance certificate as a pre-requisite for vendor qualification.
The new Regulations will bring on various changes to the compliance framework and businesses must gear up to be proactive instead of reactive in relation to employment equity compliance.
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