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Affirmative action and the Employment Equity Act

By the Employment team at Shepstone & Wylie Attorneys

 

Affirmative action in South Africa is defined in the Employment Equity Act No. 55 of 1998 (“the Act”) as:

 

“Measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer."

 

Designated groups refer to black people, women and people with disabilities.  Section 6(2) of the Act also states that it is not unfair discrimination to take affirmative action measures consistent with the purposes of the Act.

 

The recent case of Solidarity obo Labuschagne v Commissioner of the South African Revenue Serviceshas shed more light on the concept of affirmative action and how it is conceptualised in terms of the Act.  The case dealt with a white female who claimed that she was unfairly discriminated against by her employer in that, instead of appointing her to a position, her employer extended the interview and selection process and appointed an African female.  The aggrieved employee, in approaching the Labour Court with her claim,argued that because her employer's Employment Equity Plan had not been revised or updated since expiry, it rendered  the application of affirmative action in the selection process irrational and unfair.

 

The court emphasized that, if applied correctly and in line with the Act, affirmative action does not amount to discrimination.  The court also emphasised the importance of section 13 of the Act in that employers must, in order to achieve employment equity, implement affirmative action measures for people from disadvantaged groups by consulting with its employees and preparing an Employment Equity Plan that must be implemented.  The Employment Equity Plan must further be developed and implemented by practices and policies which are rationally connected to the objectives the employer wants to achieve.

 

The Labour Court held that although Section 23 of the Act requires the plan to be newly developed and revised before the expiration of the existing plan, there is nothing in the Act prohibiting the employer, together with the necessary consulting parties, from extending the old plan as is, if it is within a period of one to five years.  In this case, the plan had been extended, in consultation with the relevant parties by the Employment Equity Committee.  This was accepted by the Court as being a valid Employment Equity Plan.  In short, the fact that the extended plan was not formally adopted, revised or amended, did not in the Court’s view, mean that  the application of affirmative action was irrational.  Instead, the court found that  extension of the plan resulted in it becoming the new plan which was used by the employer in the recruitment process (although nothing in the plan had changed).

 

Designated employers as defined by the Act are obliged to prepare, implement and monitor their Employment Equity Plans and must ensure that they either extend or ammend their plan accordingly depending on the period of time the Plan has been in use.

 

For more information kindly contact Michael Maeso, Head of the Employment Department at Shepstone & Wylie Attorneys at [email protected]

Article published with the kind courtesy of Shepstone & Wylie Attorneys for more information please visit http://www.wylie.co.za

 

 

 

 

The four-day working week and its impact on South African labour law: Are we ready?

 

If there is one thing we can learn from the COVID-19 pandemic, it is that many employees can work from anywhere and the “normal” 9 to 5 is no longer palatable to the upcoming workforce.

 

2022/07

By Hedda Schensema, Director and Tshepiso Rasetlola, Associate, Employment Law, Cliffe Dekker Hofmeyr

 

Over the past two years, many employers have had to reassess their working arrangement as a result of the pandemic. COVID-19 served as a test run on what the “new normal” has to offer in respect of the employment relationship and some working conditions. This has resulted in many employers successfully implementing a hybrid working arrangement and, in some instances, even requiring their employees to work from home indefinitely.

 

Many employers have indicated that they have experienced an increase in productivity and less stressed employees. On the flip side, however, employees have been unable to shut down and find themselves working round the clock and over and above their normal working hours. Considering the above, does this mean that South Africa is ready for a four-day working week post COVID-19?

Countries like Belgium and the UK have been able to successfully implement a four-day working week. However, given that South Africa is highly regulated in respect of its labour and employment laws, it has been argued that it would not be as seamless or easy an exercise to implement in comparison to these countries.

 

South Africa has numerous bargaining councils and sectorial agreements that regulate basic conditions of employment in the different sectors and include, inter alia, working hours. In order to be able to implement a four-day working week model, these agreements will have to be amended and their terms renegotiated to align with such a model.

 

This means an employer cannot change the terms and conditions of employment as recorded in these agreements without first consulting the relevant stakeholders, which include trade unions, workplace forums and individual employees.

 

This is a process that is consultative and which must result in consensus being reached on all aspects related to the arrangement. A failure to obtain consent prior to implementing the working model may result in a unilateral change in terms and conditions of employment by an employer. This could expose the employer to a referral by its employees in relation to unilateral changes to terms and conditions of employment.

 

In addition to this, the relevant labour and employment laws will have to be amended to cater for the working model from a regulatory point of view. Employers will need to consider their health and safety obligations towards employees in terms of the Occupational Health and Safety Act 85 of 1993, which requires an employer to, among other things, do everything reasonably practicable to protect employees’ health and safety in the workplace. In this regard, an employer’s obligations to ensure the health and safety of its employees extends to where the employee is working outside of the conventionally understood workplace, including a home office.

 

Although a four-day working week model sounds like a brilliant and exciting idea, employers will have to assess their respective sector and industry in order to establish whether it would be practicable or even feasible for its business model. Employers will also have to consider the applicable legislation and agreements regulating their sector and engage in a consultative process with the relevant stakeholders.

 

It is, therefore, perhaps premature to make a concrete finding that the four-day working week model would be possible in a highly regulated country like South Africa. We will therefore have to monitor its progress and assess from an individual employer’s business model as to whether the four-day working week would be appropriate.

 

For more information please contact Hedda Schensema at [email protected] or Tshepiso Rasetlola at [email protected]

 

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com.

 

 

 

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