Chapter 7 – The Right to Equality in Employment (Employment Equity and Affirmative Action Flashcards
(19 cards)
What is the goal of affirmative action measures?
Ensures qualified people from designated groups receive equal employment opportunities.
Aims for fair and equitable representation in the workplace.
Which employers are responsible for implementing affirmative action?
Designated employers, including:
- Companies with 50 or more employees.
- Employers with fewer than 50 employees but exceeding the stipulated annual turnover.
- Municipalities.
- Organs of state (excluding SANDF, NIA, and SASS).
- Employers identified through a collective agreement under the Labour Relations Act (LRA).
Who are included in designated groups for equitable representation?
Black People (Africans, Coloureds, and Indians)
Women
People with Disabilities (long-term or recurring physical or mental impairment affecting job entry or advancement)
Who qualifies as a South African citizen?
Citizens by birth or descent
Citizens by naturalisation
What is the role of employers in employment equity?
Designated employers must develop and implement an employment equity plan.
Employers set their own targets, except in some sectors where the Minister of Employment and Labour decides.
How must employment equity policies apply affirmative action?
Affirmative action must be rational, proportional, and fair.
What does the Barnard Principle state about employment equity?
Employers may refuse to appoint or promote a White female if her representation at the specific level is already too high.
How should demographic targets be applied in employment equity?
Both regional and national demographics must be considered for fair representation.
Numerical targets are only considered quotas if proven to be rigid and inflexible (Paragraph 51 of the judgment).
The Barnard Principle applies to all racial groups, including Black candidates (Paragraph 40).
Can affirmative action be used by employees as a cause of action?
Employers can use affirmative action as a defence.
The question is whether employees can use it to initiate legal action.
What did the court decide in Harmse v City of Cape Town regarding affirmative action?
The court held that affirmative action can be used as a cause of action.
How did the Dudley case affect the use of affirmative action as a cause of action?
Rejected the Harmse decision.
Affirmative action cannot be used as a cause of action.
It is a matter for enforcement procedures under Section 20(5).
Does not create an individual right to affirmative action.
What was the Labour Court’s ruling in Thekiso v IBM?
Upheld the Dudley approach.
Affirmative action obligations cannot be used to challenge retrenchment.
What powers do labour inspectors have under the EEA?
Enter, question, and inspect workplaces to monitor and enforce compliance with the Act.
What are the key functions of labour inspectors?
- Issue compliance orders
- Identify matters for consultation
- Perform analysis
- Publish reports
- Assign managers
- Ensure duty to inform and record-keeping
What can the Director-General do regarding employer compliance?
Conduct a review to check if an employer is complying with the EEA.
What happens if an employer fails to comply with a request from the Director-General?
The Director-General can apply to the Labour Court for an order to force compliance.
If the employer cannot justify its failure, the court can impose a fine under Schedule 1.
What types of orders can the Labour Court make?
- Enforce compliance with inspector orders.
- Condone late document filings.
- Order the CCMA to investigate and report.
- Enforce compliance with the EEA.
- Impose fines for violations.
- Review administrative actions under the EEA.
- Confirm, vary, or set aside compliance orders.
What is the role of the Minister regarding state contracts? Answer
The Minister must keep a register of designated employers who submit employment equity reports.
The register is public.
What happens if a designated employer does not comply with employment equity requirements?
If a designated employer wants a contract with an organ of state, they must comply with Chapters II and III of the EEA.
Failure to comply means the employer cannot receive the contract.
