Following an uproar regarding the controversial regulations included in the Employment Equity Act, threatening to prevent coloured and Indian people from senior management positions in the Western Cape and KwaZulu-Natal, the amended Act will come into effect today (1 August 2014.)
When the draft regulations were first drawn up and issued for comment by the minister of labout earlier this year, it was criticised by groups such as the Democratic Alliance, the Western Cape government and the ANC – as well as the Congress of South African Trade Unions in the Western Cape. It was criticised for the discriminatory effect they would have on national minorities.
The regulations had proposed that companies with 150 or more employees should use the national demographic profile as "a guide" to determine targets for top, senior and professional employees.
Targets for skilled, semiskilled and unskilled employees were to be determined by the average of the regional and the national profiles.
The uproar sent the government back to the drawing board in the National Economic and Development and Labour Council (Nedlac) where it was agreed by government, business and labour that the controversial regulation be dropped.
Chris Todd, director of Bowman Gilfillan and labour law specialist, said, “It is possible for the law to come into effect without regulations. The act says the minister may issue regulations but the minister does not have to try to regulate the act," he said.
Todd added, ”The dropping of the regulation meant that the matter would be left to the courts to decide on a case-by-case basis.”
In several unfair discrimination applications, the courts have found that it is unfair for an employer to apply national demographic targets to a regional workforce. In effect, this means the status quo remains as before the amendment process.