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Labour Law

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Browsing Labour Law by Subject "Affirmative action programs."

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    The constitutionality of the concept of demographic representivity provided for in terms of the Employment Equity Amendment Act 47 of 2013.
    (2015) Tapanya, Gideon.; Hulme, David Haigh.
    South Africa is a potentially unstable society because of societal imbalances. The majority of South African black people whether African, Indian or Coloured, suffered disproportionally low levels of wealth, status and quality of employment as a result of Apartheid. The Constitution of the Republic of South Africa Act 108 of 1996 recognises the need to deal with these inequalities and its Preamble indicates the need to heal the divisions of the past, improve the quality of life of all citizens and free the potential of each person. Section 9 of the Constitution provides for equality, however, it also allows for legislative and other measures to be taken for the advancement of persons disadvantaged by unfair discrimination in terms of section 9(2). In order to achieve this purpose, the government introduced affirmative action legislation including the Employment Equity Act 55 of 1998, which prohibits the use of racial quotas. Much affirmative action type legislation, however, as well as the practical application of affirmative action, has been based on the concept of demographic representivity. This concept was adopted as policy by the African National Congress (ANC). The question arises whether demographic representivity as an affirmative action policy is constitutional, given the fundamental commitment of section 9 of the South African Constitution. Moreover, the concept of demographic representivity as specifically provided for in the Employment Equity Amendment Act 47 of 2013 raises questions of fairness and practicality. The significance of this study is that it challenges the constitutionality of the South African government policy in respect of the use of demographic representivity in terms of the Employment Equity Amendment Act 47 of 2013.
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    Has affirmative action become an illusionary right for certain designated groups?
    (2014) Harkoo, Ramesh.; Whitcher, Benita Mandy.
    South Africa consists of one of the most diverse societies in the world, comprising of people from different cultures, race, religion, gender and languages. During the apartheid era, unjust laws were applied to create disadvantages amongst races and gender. Women as well as people from the African, Coloured and Indian races were subjected to exclusions from amenities of life, education and labour arenas under the apartheid regime. With the emergence of democracy, the acknowledgement of the injustices perpetuated against these classes of people and the quest to achieve an egalitarian society, the need for restorative measures developed, in order to redress the disadvantages that those classes of people endured. The South African constitution and other legislation provides for the implementation of affirmative action measures in order to protect and advance persons who have been disadvantaged by the unjust laws. However the application of affirmative action measures have often been done in an arbitrary manner, with irrational equity plans, resulting in numerous challenges to the implementation of affirmative action measures, eroding the statutory protections and benefits of certain designated groups thereby creating disillusionment among those groups. This thesis was prompted by the numerous challenges to the implementation of affirmative action measures. It analyses the aims and objectives of affirmative action measures, the various legislative provisions as well as the approach by the courts. This thesis also examines the various issues pertinent to the implementation of affirmative action measures, such as the right to equality, equality of persons from the designated group, dignity, employment equity plans, quotas, absolute barriers and targets, and identifies possible solutions to the problem of implementation. This thesis also examines the recent CC case of South African Police Service v Solidarity obo Barnard, which identifies and analyses virtually every issue pertaining to affirmative action measures. This thesis also provides clarity concerning the factors that should be considered when drafting the employment equity plan in order to ensure that the plan is not haphazardly drawn. It concludes with recommendations on the implementation of the employment equity plan to ensure that the plan is not arbitrarily or capriciously applied, thereby ensuring firstly, that the measure is fairly applied and secondly, that those adversely affected would understand and appreciate the purpose and need for the implementation of the affirmative action measures.