by Lusanda Raphulu
Heritage month is our annual reminder of the diverse heritage of the South Africa population, and accordingly, of South African workplaces. In the workplace context, the Employment Equity Act protects heritage by prohibiting unfair discrimination on a number of grounds, including race, ethnic or social origin, colour, and language.
Unfair discrimination is prohibited, but fair discrimination, is not. Included in fair discrimination is the taking of affirmative action measures. Measures designed to ensure that suitably qualified people from designated groups (being black people, women, and people with disabilities) have equal employment opportunities and are equitably represented in all occupational levels in the workplace of a designated employer.
There are currently proposals to amend the Employment Equity Act in various respects, as contained in the Employment Equity Amendment Bill. Three noteworthy proposals are in respect of the following:
- Psychological testing – the proposal is that the requirement that psychological testing and similar assessments must be certified by the Health Professions Council is removed. Currently, psychological testing and other similar assessments of an employee are prohibited unless the test or assessment being used meets the four criteria that it has been scientifically shown to be valid and reliable; it can be applied fairly to all employees; it is not biased against any employee or group; and it has been certified by the Health Professions Council or any other body which may be authorised by law to certify those tests or assessments. Although useful to the credibility of the testing, it is not always possible or practical to have it certified by the Health Professions Council. The validity of these tests continues to be subject to evaluation by the Labour Court in the event of a dispute.
- Designated employer – the annual turnover/income threshold requirement to be a designated employer is proposed to be removed, meaning that generally, only employers who employ 50 or more employees or those employers bound by a collective agreement that appoints them as a designated employer, are defined as designated employers. This proposed amendment releases small employers with a high annual turnover from being held as designated employers.
- Sectoral targets – The Minister of Employment and Labour may identify national economic sectors and determine numerical targets for these sectors. Targets are currently set by the employers themselves, in consultation with their employees. In terms of the proposed amendment, targets may differentiate between occupational levels, sub-sectors, regions, or other relevant factors. The Minister must consult with the National Minimum Wage Commission in setting the targets and must publish the proposed targets in the Government Gazette and allow interested parties at least 30 days to comment. It is proposed that a designated employer’s targets must comply with the sectoral targets set by the Minister. This proposed amendment is seen as an attempt to fast track the transformation of workplaces, by having the Minister set the targets.
By virtue of our society, South African workplaces will always have a diverse pool of employees. The Employment Equity Act aims to achieve equity in the workplace by promoting equal opportunity and fair treatment through the elimination of unfair discrimination, and by implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational levels in the workplace.
Lusanda Raphulu is a Partner and Head of Employment Law and Bowmans
