The court challenge seeking to scrap some of the government’s new employment equity regulations for the labour sector wants to “entrench the inequalities of the past, for years to come”.
This is what the state has argued in its defence.
The Pretoria high court will on Friday hear the urgent application by the National Employers’ Association of SA (Neasa) and business lobby group Sakeliga challenging the employment equity regulations implemented this year.
The regulations were published after the Employment Equity Amendment Act came into effect in January. Employers have to report based on the new regulations that have sectoral numerical targets.
The organisations argue the regulations had “impossible requirements” and employers will suffer harm because there are “penalty of fines as high as 10% of turnover and eventual prosecution of executives”.
Neasa says it represents about 7,000 employers in different sectors, including manufacturing, agriculture and construction.
The applicants want the court to suspend operation of the regulations pending review of the regulations in part B of their application.
However, in court papers, Thembinkosi Mkalipi, director of labour relations at the employment and labour department, argued the department acted in line with the constitution in drafting the regulations to address equality in workplaces.
“The Constitutional Court has already held that restitution or affirmative action measures are steps towards the attainment of substantive equality.
“The Employment Equity Act, the sectoral targets and the administrative regulations seek to ... level the fields and ensure equal opportunities,” he argued.
He maintains the case undermined the constitutional values that recognise the importance of transformation in SA.
“We remind this court that all that this application seeks to do is entrench the inequalities of the past, for years to come.
“By preserving the status quo until the finalisation of the part B review and any appeals thereafter, the measures intended to transform the labour market and address the past imbalances to uplift the most vulnerable groups will be further delayed.
“This court, with respect, is being dragged to dead stop the transformation framework envisaged by the Employment Equity Act.”
Mkalipi argued for the application to be dismissed, saying the relief sought by the organisations was the same as that of the DA in its challenge against the department. The court has reserved judgment in the case initiated by the DA.
Mkalipi contended that the applicants’ arguments that the regulations were “impossible” were not correct.
The regulations stipulate that within five years the top management of agriculture, forestry and fishing should be 13.2% males, 20.8% females and 3% people living with disabilities.
In the construction sector, there is a requirement of 30.0% males in top management level, 24.8% females and 3% people living with disabilities to be achieved within five years.
In the financial and insurance top management, the requirement is 27.8% males, 35.3% females and 3% of people living with disabilities.
“Employers have the power to set their own numerical employment equity targets annually in their employment equity plan. The annual numerical employment equity targets set by an employer must comply with the sectoral targets, but the employer may raise a reasonable ground to justify its failures to comply,” Mkalipi argued.
He disputed the allegations that employers would be sanctioned should they not meet the targets, saying there was a provision for employers to state reasons for not meeting targets.
“There is therefore no well-grounded apprehension of irreparable harm,” Mkalipi argued.
“The allegation by the applicants that employers will have to restructure their businesses, that many employers will downsize and that employees will be retrenched is void of any merit.”
The applicants alleged the minister was supposed to consult with employees before implementation.
“It is employers who are obliged to consult with employees and the minister with employers. The minister did not fail to comply with what the law requires,” Mkalipi contended, in contrast to the applicants’ stance.
In justifying the regulations, Mkalipi said a study by the Commission for Employment Equity showed most decision making positions in companies were occupied by white people.
“The pace of transformation in the labour market and the country did not make business sense,” he argued.
“The black group, African and coloureds, in particular, is primarily dominant at the semi-skilled and unskilled levels, whilst females tend to be dominant at the skilled technical level (junior management) and semi-skilled level.
“The representation of people with disabilities remained stagnant at 1% in almost all the annual reports released by the commission since 2000 Employment Equity Reporting period.”
He argued that the application should be dismissed because the organisations delayed the launching of the application by two months.
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