Amendments to Employment Equity Act 'unconstitutional'


Proposed amendments to the Employment Equity Act calling for a massive racial realignment employment quotas were unconstitutional and will create enormous problems if they implemented, the Democratic Alliance said on Sunday.

“We have said that we will look seriously at challenging these laws in court, because these proposed laws appear to be unconstitutional in several respects,” said the party’s labour spokesperson Ian Ollis.

“They will create enormous problems in a country where one in three economically active citizens are unable to find work.”

Trade union Solidarity’s deputy general secretary Dirk Hermann claimed on Sunday that the amendments could amount to “a massive and unfeasible social engineering programme”.

He said nearly a million of all economically active coloured South Africans in the Western Cape would have to earn a living in another province if the proposed amendments were signed into law.

Hermann said in terms of the amendment, the Act would no longer recognise the economically active population (EAP) of a region, but only the national demographics of the economically active population.

According to the Western Cape’s current demographics, approximately 29,1% of the EAP is black, 54,8% coloured, 0,5% Indian and 15,6% white.

“It would require massive shifts in the population to reflect the national demography,” Hermann said.

“It would mean that the current coloured and white EAP would have to decrease by 80% and 22% respectively, while the black and Indian EAP would have to increase by 154% and 538% to reflect the national EAP demographic profile.

‘Absurd figures’
Proposed amendments to the Employment Equity Act calling for a massive racial realignment employment quotas were unconstitutional
“In Limpopo, an increase of at least 10 000 in economically active coloured persons would be needed, while more than 268 600 economically active black persons would have to move from that province.

Hermann said the “absurd figures” show that in its current form the amendment Bill was “unfeasible” and “imposes unrealistic demands”.

The findings formed part of a report by the Solidarity Research Institute (SRI) on the proposed amendments to labour legislation.

The report indicated what population moves would be required between provinces in order to reflect the national EAP demographic profile in each province.

Hermann said the amendments to the Act implied that only the national EAP demographic profile would be used as a benchmark for demographic representation to the exclusion of other benchmarks previously in use.

Current benchmarks include whether a person from the designated groups was available for appointment or promotion and took into account current and expected future economical and financial factors for the specific sector.

Invalidate the concept of ‘black’
“What it means in essence is that irrespective of factors such as local demography and skilled employee shortages, an employer will have to comply with the national EAP profile and will not be able to make any appointment that falls outside this,” Hermann said.

“The proposals also invalidate the concept of ‘black’ as defined in the Employment Equity Act. In reality, coloured and Indian South Africans are thus, as it were, written out of the designated group.”

Solidarity’s legal team had begun to draw up documentation to institute court action should the amendments be passed.

“The principle of representation as it is currently reflected in the proposed amendment Bill is not in accordance with the Constitution of South Africa and, therefore, it cannot be accepted,” Hermann said.

Ollis said the DA would continue to work intensively towards addressing the problems with the legislative proposals in the Labour Portfolio Committee.

He said it was “unfortunate” that the effect of the ANC’s proposed legislation “arbitrarily targets coloured and Indian South Africans in the fight to generate prosperity”.

“It is possible to ensure that change does not discriminate against some without compromising the necessity to give people from previously disadvantaged backgrounds special attention.

“But to do that, our legislation must promote growth and opportunity, and that is something these new proposals do not do.

“Not only will they destroy rather than create jobs, they will target unfairly some South Africans at the expense of others,” said Ollis.- Sapa