Western Cape Government Seeks Legal Opinion on its Constitutionality
13 March 2014
The Western Cape Government has noted with concern the recently published Draft Employment Equity Regulations, 2014 by the National Minister of Labour, Mildred Oliphant, and has sought legal opinion on their constitutionality.
Recent amendments to the Employment Equity Act have empowered the National Minister to issue regulations that "must" be taken into account when determining whether a designated employer is implementing employment equity in compliance with the Act. The regulations may also specify the circumstances under which an employer’s compliance should be determined with reference to the demographic profile of either the national economically active population or the regional economically active population.
Section D of the draft regulations state that:
- A designated employer employing 150 or more employees should use the national economically active population to determine equity targets for the upper three levels (top and senior management and the professionally qualified) of its workforce while employers should use an average of the national and regional economically active population for the lower levels (skilled technical, semi-skilled and unskilled).
- A designated employer with 149 employees or fewer should use the national economically active population for the upper two levels of the workforce (top and senior management). In the professionally qualified, skilled technical and unskilled occupation levels, regional demographics should be used.
If these regulations are implemented, they would have a very profound impact on employment in those provinces where provincial demographics are very different from the national figures. It would mean that Coloureds, the majority population group in this province, would be denied employment and promotion opportunities. This would have a very profound impact on the provincial government, as well as other spheres of government and all enterprises.
We have therefore requested a legal opinion on whether sections of the Employment Equity Act and the Draft Employment Equity Regulations are lawful and constitutional.
Once we have received this legal opinion, we will announce further steps that we plan to take on this serious matter.