Women Empowerment and Gender Equality Bill unlawful
The passing of the Women Empowerment and Gender Equality Bill (WEGE Bill) by Parliament will cause even more confusion about the implementation of affirmative action measures in the workplace, Solidarity's Centre for Fair Labour Practices said today. The centre is of the opinion that the aim of the Bill is nothing other than imposing a statutory quota system, which is clearly in conflict with the Employment Equity Act (EEA). In terms of Section 63 of the EEA, the EEA supersedes this new Bill and will nullify the application of the Bill.
According to the Bill, public bodies and companies are to ensure at least 50 percent representation of women in decision-making structures, with extremely onerous penalties should an employer not comply. Dirk Groenewald, Head of Solidarity's Centre for Fair Labour Practices, said an employer's compliance with one Act will lead to the contravention of another.
‘Employers currently have to comply with the Employment Equity Act (EEA) as well as with the Broad Based Black Economic Empowerment (BBBEE) Codes when setting numerical goals and targets for representation of designated groups. Now they would have to comply with a further statute should it be signed into law by the State President. ‘In terms of the EEA, employers who have more than 50 employees and or a specific turnover (as prescribed) have to implement affirmative action measures so as to achieve "equitable representation". The EEA, which supersedes all other legislation if in conflict with it, only requires "reasonable accommodation" and expressly prohibits the use of quotas.'
Groenewald said in terms of the BBBEE codes applicable to the various industries, employers are furthermore obliged to meet certain employment equity targets in order to achieve the necessary rating which, too, is nothing but a quota system. ‘The new EEA regulations announced by the Minister of Labour and which were published on 28 February constitute a further attempt to transform the EEA into a quota system.
It stipulates that employers with more than 150 employees would be required to make use of the national economically active population (EAP) in setting numerical targets and/or the difference between the national EAP and the regional EAP. In fact, it is the exact same quota system as the BBBEE codes establish and the WEGE Bill proposes. In view of the fact that these measures aim to enforce absolute numerical racial representivity, this provision is clearly in contrast with section 15(3) of the EEA and the purpose of the Act, which is namely to establish "equitable representation".
Statement issued by Dirk Groenewald, Head: Centre for Fair Labour Practices, Solidarity, March 7 2014
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