Outcry over ‘discriminatory and unconstitutional’ equity targets

The Department of Employment and Labour has come under fire for its draft Employment Equity Amendment Act (EEA) which sets out “racial quotas” and has been published for public comment.

The amended Employment Equity Act empowers Minister Thulas Nxesi to set employment equity targets for 18 economic sectors. Where percentages of Indian, black, white and coloured people have been identified as high or low, employers have a five-year period to reach the set target.

This will vary across provinces as individual targets were set resulting in other provinces not requiring to increase a certain percentage of particular groups. In KwaZulu-Natal, preference must be given to African men and women.

The targets are for employers with 50 or more employees within their top and senior management positions, for the professionally qualified and skilled levels as well as people with disabilities.

Companies seeking to do business with the government will need to acquire a compliance certificate, and employers are expected to submit employment equity plans and annual reports on their progress on meeting the targets.

Gerhard Papenfus, chief executive of the National Employers’ Association of South Africa (Neasa) said Nxesi’s targets amounted to race quotas in the workplace and that what the department had set out to achieve threatened the independence and the remaining freedom of private enterprise.

He said Neasa viewed the entire idea not only as unconstitutional but impossible to attain, therefore they would be joining various parties in litigation against the department.

“This latest demand from the government is the last straw. It is simply asking too much. No business can ever afford not to employ the most suitable candidate for the job, in the sole opinion of the employer, regardless of race and gender; the slightest deviation from this principle will severely undermine the sustainability of any business.

There is no place for making appointments on the basis of race in the workplace. At no stage can the government interfere with the right of an employer to appoint the person of his choice taking into consideration the factors he deems appropriate.”

Papenfus said what has happened with the state and state-owned enterprises was proof of the outcome when the merit principle was compromised.

“The employer takes responsibility for the person he employs. Since he carries the risk, nobody else has the right to interfere in his decision-making, and that includes the state.

“We will not panic, but adopt a measured approach towards this entire quotas idea. The days of easy appointments are a thing of the past and we will at all times make appointments on the basis of merit and not race, taking into consideration the unique requirements of each and every business,” he said.

Antonie Jasper van der Bijl, deputy chief executive for Solidarity, has taken the matter to court. His argument is that the amendments are inconsistent with the Constitution.

The court papers state: “Solidarity contends that the Amendment Act is subject to constitutional challenge on the basis that it entrenches categorisation of employees and applicants for employment according to race and reinforces apartheid-era race classification by essentially imposing a quota-based regime for purposes of the EEA.

“The wide-ranging powers on the Labour Minister that are inconsistent with the notion of a nuanced approach to affirmative action as required under the Constitution and is inconsistent with the Republic’s duties under international law.”

Some South Africans have had conflicting views since the publication of the draft legislation, with some sharing the same sentiments with the department - of the draft being misunderstood.

Darren Campher, a business graduate from Cape Town, said the blatant anti-blackness exposed by the clickbait tactics used this week exposed the work that still needed to be done by society.

Campher dispelled the notion of racial groups and genders being discriminated against, saying numerical targets were assigned for better representation in various provinces.

“As a ‘coloured’ South African, I was extremely disappointed to see people who look and sound like me adding to and perpetuating divisive rhetoric. We need to play a more active role in personally scrutinising and commenting on government policy. It’s clear from the deceitful and divisive tactics employed by a political party that too many of the public just don’t read for themselves.

That being said, political parties should be held accountable for this kind of intentional misinformation. Once again, the most marginalised are vilified and forced to defend themselves whilst facing the same systems of oppression we all do,” he said.

Teboho Thejane, spokesperson for the Department of Employment and Labour, explained that the purpose of the EE Act, as amended, was to achieve equity in the workplace by promoting equal opportunities and fair treatment in employment through the elimination of unfair discrimination.

He said the implementation of affirmative action measures to redress the disadvantages in employment experienced by black people, women and persons with disabilities, was to ensure their equitable representation in all occupational levels in the workforce.

“For sustainable growth and development, it is important that workplaces reasonably reflect the national and provincial demographics of the economically active population of the country, both in the public and the private sectors as required by section 42 of the EE Act.

“In fact, nothing has changed, these EE amendments are not introducing any new legal obligations on employers because for over 24 years of the EE Act, employers have been legally required to set their own EE targets taking into account both the national and provincial EAP demographics as per section 42 of the EE Act.

“The only change with these amendments is that the Minister of Employment and Labour after consultation with the relevant sector stakeholders and on the advice of the Commission for Employment Equity, has now regulated sector EE targets in a form of five-year milestones towards achieving the equitable representation of the various groups in respective economic sectors.”

Thejane went on to say that they were perturbed by the way the targets had been “maliciously” interpreted and that it appeared as though the tactics of “divide and rule", adopted during the apartheid regime in order to divide the black people of South Africa, were being used.

SUNDAY TRIBUNE