Western Cape Government seeking legal opinion on constitutionality of racially coercive Employment Equity Act draft regulations
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.