Compliance with the Employment Equity Act (‘EEA’)

Jun 21, 2010


The EEA provides a number of enforcement mechanisms to ensure compliance with the
Act’s affirmative action provisions, including procedures instituted by labour inspectors
involving written undertakings and compliance orders and review by the Director-General
of Labour (‘DG’) in terms of s43 of the Act.

What factors must be taken into account when the DG assesses an employer’s compliance
with Chapter 3 of the EEA? The case of DG Department of Labour & another v Comair Ltd
[2009] 11 BLLR 1063 (LC) involved an application by the DG to the Labour Court for an
order declaring that the respondent, Comair, had breached several provisions of the Act
relating to the preparation and implementation of an affirmative action plan. The court had
to determine, amongst others, what factors the DG must take into account when
determining whether an employer had made sufficient progress with the implementation of
affirmative action.

In assessing an employer’s compliance, the court held, the DG is obliged to consider not
only demographic profiles, but also those factors listed in s42 of the EEA, such as the
pool of suitably qualified people from designated groups from which the employer may
reasonably be expected to promote or appoint employees, economic and financial factors
relevant to the sector in which the employer operates; present and anticipated economic
and financial circumstances of the employer; the number of present and planned
vacancies that exist; the employer’s labour turnover; progress made by other, comparable
employers in the same sector; reasonable efforts made by the employer to implement its
plan; and the extent to which the employer has succeeded in eliminating employment
barriers that face designated groups:

  • ‘It is clear from the aforegoing that the EEA instructs the DG to take into
    consideration a number of factors before arriving at a decision [regarding
    compliance]. I am in agreement with the submission that this matrix of
    considerations allows and in fact forces the official to bring a sound judgment to
    bear in assessing compliance with the EEA. What is further clear from this section
    is the fact that the requirements or factors must be weighed cumulatively. In this
    regards this section specifically states that “all” of the factors must be taken into
    account. A labour inspector or the DG can therefore not exercise a discretion
    without taking into account the factors in section 15 of the EEA and those listed in
    section 42 of the EEA.’

The only documents the DG had submitted in support of his application were two cryptic
tables, each of which merely cited some provisions of the EEA and a few ‘sketchy’
conclusions. These did not indicate that he had applied his mind to the matter or that he
had even considered the mandatory directions of s42 before making his application to the
court. The court set aside the DG’s decision to refer the employer to court for non –

Demographic factors therefore are but one of a series of factors that have to be
considered in deciding whether an employer has made reasonable progress in promoting
employment equity.

June 2010

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