National and Regional Demographics: A Must? MC Stoffels (NWU)

National and Regional Demographics: A Must? MC Stoffels (NWU)

1. Introduction Aim of presentation The following will be discussed: o Section 42 of the Employment Equity Act and the Employment Equity Amendment Act o Solidarity & Others v Department of Correctional Services & Others C368/2012 (LC) o Solidarity & Others v Department of Correctional Services & Others CA23/2013 (LAC)

2. S 42 EEA and Amendment Act Section 42 of EEA: (1) In determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General or any person or body applying this Act must, in addition to the factors stated in section 15, take into account all of the following : The extent to which suitably qualified people from and amongst the different designated groups are equitably represented within each occupational category and level in that employer's workforce in relation to the- (i) demographic profile of the national and regional economically active population

2. S 42 EEA and Amendment Act Section 42 of the Amendment Act: (1) In determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General or any person or body applying this Act may, in addition to the factors stated in section 15, take the following into account: (a) The extent to which suitably qualified people from and amongst the different designated groups are equitably represented within each occupational level in that employer's workforce in relation to the demographic profile of the national and regional economically active population

3. Solidarity & Others v Department of Correctional Services & Others C368/2012 (LC) Facts applicants applied for particular posts in Department of Correctional Services (DCS) applicants were unsuccessful and claimed unfair discrimination consider whether the Employment Equity Plan (EEP) is consistent with the Employment Equity Act and in particular, whether regional/provincial demographics must be taken into account by DCS in developing and applying an employment equity plan whether the manner in which this EEP is implemented by DCS amounts to unfair discrimination, alternatively unlawful or unreasonable conduct

3. Solidarity & Others v Department of Correctional Services & Others C368/2012 (LC) Applicants applicants submitted that the DCS is engaged in a policy of racial profiling in the setting of its targets and that such profiling is out of kilter with our constitutional values (numerical goals) one of the objectives of the EEA is to ensure that suitably qualified people from designated groups have equal employment opportunities Respondents DCS employed national and not regional targets for its EEPs because the DCS is defined as a national department EPP ensure implementation of affirmative action measures to redress disadvantages experienced by designated groups to ensure that there is equitable representation of suitably qualified persons

3. Solidarity & Others v Department of Correctional Services & Others C368/2012 (LC) Evaluation common cause that DCS did not take regional demographics into account (selection) section 42(a)(i) of the EEA process of DCS is premised on understanding the EEA allows for the disregard of regional demographics when targets are set Code of Good Practice (1999): numerical goals for appointment of people from designated groups provincial and national economically active population

3. Solidarity & Others v Department of Correctional Services & Others C368/2012 (LC) Code of Good Practice (2005): The workforce profile should indicate the extent to which designated groups are under-represented in that workforce in occupational categories and levels. This should be compared to Economically Active Population at national, provincial or regional, or metropolitan economically active population or the appropriate benchmarks. clear meaning of s 42: regional and national demographics should be taken into account and must factor in all employment equity plans

3. Solidarity & Others v Department of Correctional Services & Others C368/2012 (LC) where the selection and recruitment process derived from the employment equity policy of the DCS take no cognisance whatsoever of the regional demographics of the Western Cape, this amounts to discrimination which is not protected by section 6(2) of the EEA or section 9(2) of our Constitution. It is therefore unfair. most appropriate relief: ordered to take immediate steps to ensure both national and regional demographics are taken into account in respect of members of designated groups when setting equity targets at all occupational levels of its workforce

4. Solidarity & Others v Department of Correctional Services & Others CA23/2013 (LAC) Appeal appellants appealed against decision of court a qou to refuse relief sought cross appeal by respondents with regards to finding that EEP did not take account of national and regional demographics Cross-Appeal s 42 of EEA had been amended by EEA Amendment Act 47 of 2013 s 42 no longer renders regional demographics peremptory

4. Solidarity & Others v Department of Correctional Services & Others CA23/2013 (LAC) two responses by court: Amendment Act came into force August 2014 long after plan was implemented and the matter was heard before court a quo or judgment was delivered on 18 October 2013 at the time, there was obligation even though the word "must" have been replaced by "may", there will be factual contexts in which it is difficult to envisage how a plan could pass legal muster without a consideration of regional demographics

4. Solidarity & Others v Department of Correctional Services & Others CA23/2013 (LAC) Finding plan fails because respondents did not take regional demographics into account in the consideration of who falls within a designated group and who should benefit from the EEP in the construction of a non-racial and non-sexist nation, the relationship between regional and national demographics requires nuance and flexibility

5. Concluding remarks national and regional demographics a must? regardless of "may" (or discretion) in the amendment of s 42, both should be taken into account in order to redress the disadvantages from the past the failure to examine the region in which the plan is conceived, constitutes a sufficient legal obstacle against the plan being held to be in compliance with the EEA (purpose ) the way forward? Lets wait until 3 November

Thank You.