By Tanya Mulligan, Associate, Employment Law, Benefits & Industrial Relations,
On 26 January 2016 the Labour Court handed down judgment in Solidarity v The Minister of Safety and Security and others (case number: J879/12). Solidarity challenged the validity of the South African Police Services’ (“SAPS”) Employment Equity Plan (“EE Plan”) and sought an order declaring the plan invalid and of no force and effect. Solidarity contended that the plan contravened section 15(3) of the Employment Equity Act 55 of 1998 (“the EEA”), certain provisions of the SAPS Act 68 of 1995; and sections 1, 9 and/ or section 195(1) of the Constitution of South Africa.
Section 15(3) of the EEA requires, inter alia, that affirmative action measures implemented by a designated employer must ensure the equitable representation of suitably qualified people from designated groups in all occupational categories and levels in the workforce. Section 15(3) of the EEA then specifically states that preferential treatment and numerical goals are measures aimed at advancing equitable representation in the workplace. Quotas are therefore prohibited in terms of section 15(3) of the EEA.
The SAPS’ EE Plan set out the overall annual targets for the SAPS for the duration of the plan. Different numerical targets by race and gender were identified in each of the four categories of personnel. The plan also provided that 50% of all posts on salary levels 8-16 and 60% of posts on salary levels 1-7 would be allocated to women as a designated group in their race groups.
Solidarity contended that the use of the national demographic as a standard by which the representation of designated group was evaluated was not in accordance with either the EEA or the Constitution.
The Labour Court had to consider, inter alia, whether the gender and racial targets set by the SAPS amounted to quotas and more importantly whether the EE Plan promoted the achievement of equality. The Labour Court, in reaching its decision, considered the cases of Minister of Finance v Van Heerden 2004 (6) SA 121 (CC), South African Police Service v Solidarity obo Barnard  ZACC 23 and Solidarity and Others v Department of Correctional Services and Others (2014) 35 ILJ 504 (LC).
The Labour Court assessed whether compliance with the SAPS’ EE Plan necessitated that any promotion or appointment made by the SAPS must demonstrably advance the achievement of the numerical goals identified in the plan. The SAPS’ plan did not contain a ‘deviation provision’ i.e. a clause permitting the SAPS to deviate from the EE Plan if necessary and in order to maintain operational efficiencies.
The Labour Court accordingly held that in the absence of any mechanism, for example a deviation provision, preventing the rigid and inflexible application of targets would lead to substantive inequality. The Labour Court found that inflexible barriers to the appointment of qualified candidates from non-designated groups amounted to quotas and were impermissible in terms of the EEA.
The EE Plan was accordingly found to be invalid and of no force and effect as it contravened section 15(3) of the EEA and section 9(2) of the Constitution.
In respect of the use of the national demographic as a standard by which the representation of designated groups may be evaluated in terms of the EE Plan, the Labour Court held that it was not sufficient to simply rely on national census figures of the general population for the purposes of the EEA and that it is the economically active portion of the population against which the composition of the workforce must be compared. The economically active population of both the national and regional population must be considered.
The case helps to clarify what is expected of employers in terms of the EEA’s affirmative action provisions. In order to ensure that an employer’s EE Plan promotes the achievement of equality it is imperative that the Plan contains a mechanism, such as a deviation provision, so that the provisions of the plan are not inflexible and rigid. Employers must furthermore also ensure that when they set numerical targets, they consider both the national and regional economically active population.
Article published with the kind courtesy of Cowan-Harper Attorneys www.cowanharper.co.za