Black empowerment in the South African
EMPOWERMENT :
The phenomenon of strategic and intentional ethnic/racial empowerment based on previous systematic socioeconomic exclusion warrants what is termed as “affirmative action”. This is a prescription stipulated in the Employment Equity Act No.55 of 1998(herein after referred to as “the Act”) with the intent of ensuring that adequately qualified individuals from previously disadvantaged groups have access to equal employment opportunities and are therefore equitably represented in terms of demographics in all occupational categories and areas of the labour force of the designated employer. The desired outcome of such an Act is to actualize equality and an equitable representation of qualified designated groups, which is elucidated in the Act as “black people” (Black, Coloured and Indian people), women, children and disabled individuals. The groups mentioned are identified as groups which experienced systematic socioeconomic exclusion and discrimination in the past, and therefore those who are deemed to be priority in a quest to redress past imbalances.
WHOSE RESPONSIBILITY IS IT TO EXECUTE THIS ACT?
The Act states that it is the responsibility of the “designated employers” to execute the affirmative action measures by drafting a theoretical framework in terms of plans. In the context of The Act, a “designated employer” is someone or an entity which :
- Employs 50 or more employees; or
- Any employer who employs fewer than 50 employees but has an annual turnover that is equal or above the applicable annual turnover of a small business in terms of schedule 4 of the Act; or
- A municipality; or
- An organ of State (excluding the local sphere of government, the National Defence Force, the National Intelligence Agency or the South African Secrets Service); or
- Any employer who is subject to a collective agreement as referred to in sections 23 and 31 of the Labour Relations Act 66 of 1995.
WHAT SHOULD AN AFFIRMATIVE ACTION PLAN LOOK LIKE ?
Sections 15(2) and 15(3) of the Act state that the plan ought to consist of the following :
- Identification and elimination of barriers (such as racial discrimination) against designated persons ; and
- Are drafted to advance and promote diversity in the workplace based on the fundamentals of equality, dignity and respect; and
- Institute justifiable accommodations for designated groups in a bid to them to enjoy equal opportunities and representation in the workplace
- Ensure equal representation of suitably qualified individuals from designated groups in all occupational categories and levels (including preferential treatment, and numerical goals, but exclusive of quotas); and
- Retain and develop people from designated groups and implement appropriate training measures for skill development (including preferential treatment, and numerical goals, but exclusive of quotas).
It is of paramount significance to read Sections 15(2) and 15(3) with section 6(2) of the Act which conveys that affirmative action isn’t regarded as unfair discrimination so long as it is executed in line with the prescriptions of the Act.
To be in line with The Act, the designated employer is instructed to set up a meeting with it’s employees in relation to section 16 of the Act which deals the analysis and implementation of the Act; post this meeting, the designated employer ought to conduct an analysis based on Section 19
followed by drafting an employment equity plan based on the guidelines of Section 20 of the Act . Upon completion of the prior mentioned aspects, the designated employer is expected to report yearly to the Director-General on the implementation and track record of the plan as stipulated in Section 21 of the Act.
Do note that failure to comply by the Act, will result in the Department of Labour imposing a fine or instituting a prosecution.
CONCLUSION :
This is therefore an Act designed to advance inclusivity, promote diversity , turn workplaces into environments of transformation and elevation using equitable means to achieve equality and fairness.
For assistance in relation to Labour Law, kindly contact Manzankosi Corporate Legal Consultancy on www.manzankosiclc.co.za or alternatively,WhatsApp 067 147 2323.
