EMPLOYMENT LAW: New draft Employment Equity Regulations cause uproar

The Minister of Labour published new draft regulations under the Employment Equity Amendment Act on 28 February. The regulations are open for public comment for a period of 30 days. The draft regulations seek to make the application of national demographics compulsory in all top and senior management positions as well as the use of an average of national and regional demographics in skilled, semi-skilled and unskilled positions in larger companies.

Commentators have already labeled the draft regulations as unconstitutional, as it is feared that the application of national demographics in areas such as the Western Cape and Kwa-Zulu Natal will severely prejudice Coloured and Indian citizens’ employment prospects. This legislation also flies in the face of comments made by the Supreme Court of Appeal regarding the use of race-based quotas for employment purposes in the well-known case of police lieutenant-colonel Barnard (currently before the Constitutional Court).

Some solace may be found in the actual wording of the draft regulations which state that demographics must be used as “a guide.” This would suggest some scope for deviation from such demographics, provided that it can be commercially justified. We suspect many businesses would be able to make use of this apparent flexibility to circumvent the overtly racist provisions of these regulations. It is also uncertain to what extent non-compliance with the demographic requirements will be effectively policed and penalized.

As the regulations are currently only in draft form, they may yet be substantially amended. Even if they are not, it seems very likely that they will the subject of extensive litigation – probably all the way to the Constitutional Court. We will keep our clients updated in this regard. In the meantime, a copy of the draft regulations is available at this link.

#Labourlaw #employment #employmentequity #transformation #BBBEE #DepartmentofLabour #MinisterofJustice #MinisterofLabour #ConstitutionalCourt #SupremeCourtofAppeal #racism #discrimination