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Trade union Solidarity has launched a high court application to force the department of labour to comply with the 2017/18 equality report published by the SA Human Rights Commission (SAHRC), which found that certain sections of the Employment Equity Act might be unconstitutional.
SAHRC communications coordinator Gushwell Brooks said the department had also written a letter to the commission about the equality report and had threatened to follow that letter up with legal action.
However, department spokesperson Thobile Lamati said the labour department was still studying the July report and was still engaging with the Commission for Employment Equity as recommended by the report.
Efforts to get further comment from the department were fruitless.
According to court documents lodged with the labour court in Johannesburg, the union wants the court to declare part of the act unconstitutional and the department to halt its efforts to enforce the act.
Solidarity’s head of labour services, Anton van der Bijl, said the union wanted the department to implement the recommendation of the report, even though it has been given six months to do so, and respond to the SAHRC.
“We want to ensure there is compliance with the report within these six months,” Van der Bijl said.
The key findings of the report are:
. Government’s increase of VAT seriously threatens the human rights of the poor and is not constitutionally justifiable;
. The Employment Equity Act 55 of 1998’s definition of “designated groups” and South Africa’s system of data disaggregation is not in compliance with constitutional or international law obligations.
Government’s failure to measure the impact of various affirmative action measures on the basis of need and disaggregated data, especially the extent to which such measures advance indigenous peoples and people with disabilities, likewise violates international law obligations;
. The implementation of special measures in the employment equity sphere is currently misaligned to the constitutional objective of achieving substantive equality, to the extent that implementation may amount to rigid quotas and absolute barriers as opposed to flexible targets.
This practice may inadvertently set the foundations for new patterns of future inequality and economic exclusion within and among vulnerable population groups;
. The concept of special measures is rooted in the right to equality, but can and should be implemented across government’s focus areas.
Currently, in addition to employment equity special measures, broad-based black economic empowerment (BBBEE) special measures are instituted in the contexts of, among other measures, preferential procurement, small business development and land.
Special measures should be specifically designed for further education.
However, it is found that severe institutional fragmentation exists in that no central coordinating body steers the implementation of special measures across varying contexts.
It is accordingly found that there is a misalignment between institutions, legislation, policies and implementation in the broad BBBEE context generally;
. Government policy and conduct consistently neglect persons with disabilities, who constitute approximately 7.5% of the population, both in ensuring accessibility for such persons through universal design of goods, services, equipment and facilities, and through the failure to reasonably accommodate people with disabilities in specific contexts; and
. The private sector is not sufficiently contributing to the transformation of the labour market, transformation of the economy more broadly, further education in particular, or land reform.
