Labour union Solidarity has served a summons on President Cyril Ramaphosa, the Department of Employment and Labour, and the minister holding the portfolio, among others disputing the constitutionality of South Africa’s new BEE and transformation laws.
Solidarity said the latest amendments to the Employment Equity Act are contrary to the international labour conventions, and the government is guilty of being in contempt of such conventions as well as South Africa’s Consitution.
On 6 April, President Cyril Ramaphosa assented to the amendment of the Employment Equity Act. The labour department anticipates that the laws will be effective from 1 September 2023.
The new Employment Equity Act empowers the minister of labour to set employment equity targets for economic sectors and prescribe targets for demographics in companies with more than 50 employees.
It further obliges employers to present employment equity plans and yearly progress reports on their achievement of set targets.
The Department of Employment and Labour has stated that those who fail to comply with such laws and targets will face legal penalties, including fines.
Companies seeking to do business with the government will also need a Certificate of Compliance from the department.
Solidarity has raised three hallmark concerns with the Act, notably that the Act entrenches the ‘categorisation of employees and applicants for employment according to race and reinforces apartheid-era race classification by essentially imposing a quota-based regime.’
Solidarity added that it also grants the minister of labour too much power, thus undermining the nuanced approach to affirmative action as outlined in the country’s Constitution.
On top of this, Solidarity argues that the law is inconsistent regarding the Republic’s responsibilities in terms of international law.
Through the categorisation of ‘designated groups’ within a workplace, Solidarity believes that this places excessive focus on racial categorisation and ultimately gives an afterlife to ‘apartheid-style’ classifications.
Prior to the amendment, according to Solidarity, the Act provided employers with some flexibility in setting their own targets in their employment equity plans.
The new Act removes this flexibility because the numerical goals set by an employer must now comply with the targets specified by the Labour Minster, said the union.
Solidarity further noted that if an employer does not meet sectoral targets, they can still be eligible for a compliance certificate if they can provide a ‘reasonable explanation’ for their failure. There is, however, no clear definition of what is considered reasonable, and the labour minister’s discretion would be relied on.
Ultimately, the labour union foresees the Act over empowering the minister of labour in enforcing “top-down quotas, rather than to implement employment equity targets devised by employers after consultation with their workforce.”
Solidarity added that this new approach under the Act is a more aggressive employment equity framework and is in contravention of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) under the United Nations (UN).
Dirk Hermann, the CEO of Solidarity, said that: “approaching the Labour Court is the first step in a major process to ensure that the ANC government does not succeed in controlling South Africa through upside-down legislation…There is no justification for it.”