[Here is some more information from Solidarity. Jan]

Proposed Code of Good Practice, in terms of section 54 of the Employment Equity Act, 55 0f 1998 (First version)

This concept for a Code of Good Practice is deemed to be a first version and offers only broad outlines. An inclusive process will be followed to give further substance to the Code.

In view of the fact that Code of Practice will function within the framework of the Constitution of South Africa, the Code gives substance to the values contained in the Constitution and particularly the spirit contained in the Founding Provisions (Chapter 1) and the Bill of Rights (Chapter 2, with particular reference to 9(2)) of the Constitution. These values include freedom, equality and human dignity;

And since the Employment Equity Act must result in equality for all employees, united in their diversity;

And since employers often exceed the requirement of the Employment Equity Act, due to uncertainty about the boundaries of affirmative action;

And since affirmative action often leads to conflict and expensive litigation, thwarting the aim of reconciliation and harmony;

And since a healthy economy requires that the experience of affirmative action by members of all communities should be largely positive;

And since it is accepted that the Employment Equity Act does not intend or authorise unfairness towards the non-designated group;
The following compulsory Code of Practice for the implementation of affirmative action, with particular consideration for the position of persons who do not belong to the designated group, is enacted:

This Code does not impose any legal obligation other than the obligations imposed by the Act.

In enforcing this Act is it incumbent upon employers to take cognisance of this Act (as is the case with any other code of practice adopted in terms of the Act). The Act must be interpreted in conjunction with the Code.

Placing absolute ceilings on the position of employers belonging to the non-designated group, by virtue of the fact that they belong to this group, is forbidden.

Only South Africans may benefit from affirmative action. Non-South African citizens will only be eligible for appointment if it transpires that no suitable South African citizen, whether from the designated or the non-designated group, is available for the position.

An employee may not, in any way whatsoever, be dismissed for the purposes of affirmative action.

Employees belonging to the non-designated group employed in terms of a fixed term contract will, at the expiry of the contract, have a legitimate expectation of permanent appointment. Employees belonging to the non-designated group may not be employed in an acting capacity in a position until a suitable candidate from the designated group is found.

Persons entering the labour market for the first time are exempt from the terms of affirmative action. Such persons are handled on an equal footing in terms of appointment and other labour practices, without being categorised as belonging to the designated or the non-designated group.

Affirmative action must be implemented in such a way that a balance is achieved between efficacy and demographic representation.

In order to give substance in general to the aim of representation and at the same time to meet the objectives of population diversity and good service delivery, the population composition of the areas and regions in question, rather than the national demographic, must be taken into account when affirmative action targets are set.

Disabled persons, women and employees from the Indian and so-called Coloured communities must be treated as equal members of the designated group and must not be disadvantaged in an attempt to achieve representation.

In order to meet the diverse needs of South African society, institutions that exist for the benefit of specific communities (language, cultural and religious) may reflect the nature of such communities and affirmative action steps must be adapted accordingly.

In attempting to achieve the objective of representation the number of applicably qualified persons for the position in question must be used as criterion, rather than the general population profile of the country as a whole or that of a specific province or region.

When a person belonging to the non-designated group is negatively affected by an affirmative action plan or practice, e. g. where he/she would have been promoted in the absence of affirmative action, alternative career opportunities must be created.

Affirmative action must not go beyond what is required to benefit the designated group. Companies must guard against favouring members of the designated group for untold generations under the guise of affirmative action and, in so doing, committing unchecked discrimination against the non-designated group.

Targets for the appointment of the non-designated group should also be set at levels at which the designated group is over-represented. This will concentrate on, but not be confined to, the bottom levels.
[1] In terms of the Employment Equity Act, it is not expected of an employer to come to any decision with regard to the appointment or advancement of a member of the designated group that sets an absolute ceiling. The Explanatory Memorandum to the Act contains the following comments on absolute ceilings: The Act allows for positive measures to achieve a diverse and representative labour force. It emphasises the necessity for doing this in such a way that no absolute ceilings are set for the employment or promotion of any individuals.
In Public Servants Association of SA & another v Minister of Justice and others the judge found that no allowance had been made for the legitimate expectation of white males.

The fact that a person belongs to the designated group furthermore does not constitute grounds for demanding preferential treatment. It merely provides justification for an employer who is confronted with a charge of unfair discrimination, brought by someone whose right to equality had been impaired in the interests of representation. Compare Ntai & Others v SA Breweries (2001) 22 ILJ 214 (LC). The justification grounds that have been created by the Act for racial discrimination must be proportionately justifiable with regard to the rights that are ostensibly being encroached upon. The racial discrimination must be proportionately justifiable with regard to the right to equal treatment (the right to be free from discrimination) with is ostensibly being breached. It must, in other words, be reasonable. It would be unreasonable if it went beyond what is necessary, i.e. if it is disproportionate. It would be disproportionate, for instance, if a less encroaching way exists to achieve representation, and if that way is not followed.

In this respect attention should be paid to the stipulations of section 36 of the Bill of Rights (the Constitution). Section 36(1) stipulates:

œThe rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account al relevant factors, including “

the nature of the right;
the importance of the purpose of the limitation;
the nature and extent of the limitation;
the relation between the limitation and its purpose; and
less restrictive means to achieve the purpose.
[2] In Auf der Heyde v University of Cape Town the applicant was appointed, together with two black persons, on a three-year contract as senior lecturers in the Department of Pharmacology, with the possibility of a two-year extension. During the course of the initial three-year contract the applicant™s two colleagues were offered permanent positions. Both were black, but one was a South African and the other one was not. During the same period the applicant applied for an advertised position as lecturer, but was unsuccessful. Although affirmative action was only incidentally touched upon, the applicant maintained that a non-South African could not be a beneficiary for the purposes of affirmative action. The court found that the argument had merit. In the black economic empowerment processes, non-South Africans are excluded as potential beneficiaries.

[3] Although there are no juridical findings in South Africa on the use of race as a criterion in retrenchments, there are American examples that may be used for comparison. In Wygant v Jackson Board of Education (1986) a trade union had concluded a collective agreement in terms of which black teachers would enjoy protection in the event of retrenchment processes, in order to maintain a racial balance. The result was that the Jackson County School Board retrenched white teachers with greater seniority and retained black teachers with lesser seniority. The white teachers took their case of violation of their constitutional rights under the equality protection clause to the Supreme Court, after a lower court had found against them. The supreme court found in their favour. The judge found that employment targets imposed a dispersed burden on the applicants, since it took away just one of several opportunities. Retrenchments place the total burden of the preferential policy on a few individuals, which often causes great upheaval in the lives of those individuals. This burden is too far-reaching.

[4] In Mcinnes v Technikon Natal the applicant was appointed on a contract, which was subsequently renewed. The position became a permanent one and the incumbent was asked to apply as a formality. The majority of the selection committee recommended her appointment. Although she was the better candidate, a black male was appointed to the position. It was found that the applicant had had a legitimate expectation of permanent appointment.
In Biggs v Rand Water (2003) 24 ILJ 1957 (LC) the Labour Court found that the failure to appoint a temporary employee to a permanent position, by virtue of the fact that she was œwhite, amounted to automatic unfair dismissal. Biggs was repeatedly appointed for a fixed term, which in itself was found by the Court to have been unfair.

[5] The fact that affirmative action is aimed at a group and is not based on an individual approach, and that young whites are hardest hit by affirmative action, results in an affirmative paradox. Persons who had never been disadvantaged by affirmative action can now be beneficiaries, and people who have never benefited are now disadvantaged. Brassey SC maintains that those who will have to pay the price of affirmative action will not be executives and managers, because they cannot be laid off. The white group to suffer will be young aspiring entrants into the labour market. The exemption of young people may result in a natural cut-off date for affirmative action.

The question of exemption from the Employment Equity Act for young people entering the labour market for the first time was part of a survey conducted by Prof Du Toit of Stellenbosch. Most South Africans (54,4%) agree that young people should be exempt. Less than one in five (18,3%) disagrees, while approximately one quarter (25,7%) did not have an opinion. If a referendum were to be held on this issue, a majority of South Africans will favour the exemption of young people.

This important point of agreement reaches across the racial divide. Less than one third from all race groups did not have an opinion and only a small percentage from each group opposed the idea (21,5% of African disagree, 6,6% of whites, 12,5% of so-called Coloureds and 13,6% of Indians). Almost half of the African respondents (47,6%) agreed or strongly agreed on this point, while the three minority groups were overwhelmingly in favours: 76,3% of whites, 73,9% of Coloureds and 75,9% of Indians agreed or strongly agreed with the proposition.

[6] In Public Servants Association of SA & another v Minister of Justice and others the judge found that efficacy cannot be compromised in order to achieve a representative civil service. The judge also said that, in the quest for a balance between efficacy and representation, the scale has to incline towards efficacy, since an emphasis on representation would place a burden on the community and would be unfair to applicants who are better qualified to promote efficient administration. In Mcinnes v Technikon Natal it was found that a balanced approach must be adopted between uplifting disadvantaged, mainly black, communities and the rights of the institution and students to offer the best tertiary education possible. The balanced approach was confirmed in Coetzer and Others v Minister of Safety and Security and another. In this matter the applicants, all of them white males, argued that they had been the victims of unfair discrimination because they had not been promoted to vacant positions in their unit. The posts were earmarked for designated applicants, but no designated employees had applied for them. The applicants, all highly trained, were not allowed to apply because they were members of the non-designated group. The judge found that the National Police Commissioner had not taken efficacy into account in the decision not to promote the applicants to the positions, but had only considered representation.

[7] In terms of the explanatory memorandum to the Employment Equity Act the demographics of the economically active population on regional level also has to be considered.

[8] In Health & Other Service Personnel Trade Union of SA obo Klaase vs Paarl Hospital (2003) 24 ILJ 1631 (BCA) a œcoloured female was recommended for a position for which she had applied. She was not appointed, however, on the grounds that coloured females were œover-represented at the level of the position for which she had applied. The commissioner rejected this argument and found that the hospital™s affirmative plan set an absolute ceiling for those employees who did not conform to the quotas that had been set by management. The hospital™s decision had excluded the applicant from every possible prospect of promotion. This was found to be unfair. Ms Klaase was awarded protected promotion.

[9] In terms of the explanatory memorandum to the Employment Equity Act, the available pool of suitably qualified persons from the designated group, from which appointments or promotions could emanate, has to be taken into account.

Other factors that have to be considered are:
Economic and financial factors relevant to the sector.
The employer™s current and proposed vacancies.
The employer™s determining labour turnover.
[10] The alternatives may include alternative career paths, remuneration systems and opportunities for advancement. The absence of alternatives for the non-designated group will lead to powerlessness, which could have a negative effect on productivity. Failing to create alternatives for the non-designated group may therefore turn out to be an expensive option for a company.

[11] In Public Servants Association of SA & another vs Minister of Justice and others the applicants maintained that they had suffered unfair discrimination. 30 positions with the state attorney were advertised in various towns. Not one of the applicants, all of them white males, was invited for an interview. The judge found that affirmative action should not go beyond what is necessary for the advancement and protection of people from the disadvantaged group. There must be a relation between the objectives to be achieved and the measures that are employed. The quest for representation also cannot take precedence over other constitutional stipulations.

[12] The final aim of the Employment Equity Act is to reflect the demographic composition of the population at every level in the workplace. This objective can only be achieved if targets are also set at those levels at which the designated group is over-represented. This is not an unusual practice. In the mining industry the setting of targets at the lower levels is a familiar phenomenon. Young whites entering the labour market for the first time have been appointed with great success at the bottom levels, which have traditionally been black. Recently white females were, for the first time, appointed to these positions.

(194)Â 2005 The Code. All rights reserved.

Source: Solidarity
URL: http://www.diekode.co.za/Home/home.html/p>