Labour Bulletin | 17 March, 2011 | Hot Topics:
As I’m sure you know, there’s been an uproar about the proposed changes to the Employment Equity Act. There’ve been comments that Coloured people will need to move away from the Western Cape to find work, and more Black people will have to be moved in to fulfill the EE requirements in that province.
Sound a bit dramatic, perhaps…
I thought it important to give you a solid labour law perspective on this, just to clear up any confusion. But remember, the amendments are only proposed, and are not the final changes. Of course, as I mentioned last week, me and my team at the Labour Law for Managers Loose Leaf will make sure you’re ahead of the game when you must prepare for the changes. So relax – we’ve got you covered. In the meantime, here’s some food for thought.
Take note of this proposed amendment to the EEA
The current Section 42 of the EEA requires that in determining whether employers have implemented employment equity policies, the “demographic profile of the national and regional economically active population” must be taken into account.
The amended Section 42 reads that in determining whether employers have implemented employment equity policies, the “demographic profile of the economically active population” may be taken into account.
It’s, therefore, proposed that the words national and regional be deleted.
Interest groups claim that the amendment means that the demographic profile of the regional economically active population will not be taken into account. And only the national economically active population will be taken into account.
On a legal analysis of the proposed amendment, this isn’t the case. The proposed amendment to Section 42 of the EEA reads that the factors listed therein (which includes the demographic profile of the economically active population) may be taken into account. It doesn’t automatically imply that the regional economically active population may not be taken into account if the words national and regional are deleted.
The factors listed in the proposed amendment to Section 42 isn't a closed list
Remember, the factors listed in the proposed amended Section 42 must be read together with the factors listed in Section 15 of the EEA (which doesn’t have any proposed amendments). It states affirmative action measures include the appointment of suitably qualified persons from designated groups, which means black people, women and people with disabilities. Black people includes Africans, Coloureds and Indians.
Coloured people are still a designated group
It’s clear that Coloured people are included in the definition of designated groups. For provinces like the Western Cape, where the majority of the population is Coloured people, employers will still have to implement affirmative action measures for Coloured people. Just as they have always had to do!
The proposed amendment to Section 42 doesn’t automatically exclude the regional economically active population when it’s determined whether employers have implemented employment equity policies.
Until next time...
Editor-in-Chief: Labour Law for Managers
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