Labour minister Mildred Oliphant has indicated that she will ‘engage’ with the South African Human Rights Commission (SAHRC) after the institution found that the country’s affirmative action and employment equity policies were unconstitutional.

Speaking at the opening of the annual Nedlac conference on Friday (14 September), Oliphant noted that the SAHRC had made various recommendations on what needs to be changed to bring the legislation in line with the Constitution.

“The Commission gives government six months to report back on steps taken to give effect to its recommendations,” she said.

“It follows therefore that the Nedlac social partners need to study this report and advise on its stance vis-à-vis the recommendations of the Commission.

“It might even be useful to seek an audience with the Commission in order to understand the basis for its report, findings and the recommendations.

“This is important given that all our labour laws have to pass constitutional scrutiny before they can be signed into law,” she said.

Unconstitutional

The Equality Report 2017/2018 is an annual report produced by the SAHRC as per legislative requirements.

In the latest report, the SAHRC specifically took issue with the Employment Equity Act’s definition of ‘designated groups’ and South Africa’s system of data disaggregation – which it said are 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 is also a failure of international legal conventions it said.

In a statement released at the end of August, the SAHRC outlined its findings as follows:

The definition of designated groups as contained in the Employment Equity Act, and the current system of disaggregation of data could give rise to new imbalances in the labour market.

Affirmative action measures must be targeted at groups and individuals who are subject to unfair discrimination, to eventually achieve substantive equality and a society based on non-racialism and non-sexism.

Decisions based on insufficiently disaggregated data fail to target persons or categories of persons who have been disadvantaged by unfair discrimination, as required by the three-pronged test for affirmative action.

Without first taking the characteristics of groups into account, varying degrees of disadvantage and the possible intersectionality of multiple forms of discrimination (based on race, ethnicity, gender or social origin) faced by members of vaguely categorised groups, cannot be identified.

As such, the SAHRC’s finds that the (EEA) be amended to target more nuanced groups on the basis of need and should take into account social and economic indicators.

Once the objective of affirmative action, namely substantive equality, is achieved, temporary special measures should cease. However, given the persistence of gross inequality in South Africa – and despite policies aimed at radical socio-economic transformation – much remains to be done before this goal is reached. Currently, special measures in the employment equity context raise several concerns in respect of the requirement for affirmative action to promote equality.

It is therefore clear that affirmative action and reasonable accommodation are designed to both provide initial economic opportunities to disadvantaged groups by prioritising their appointment but continue to apply once people from such groups have entered the workforce.

Read: What you need to know when you employ a foreign national in South Africa