South Africa is one of the world’s most culturally, racially, and economically diverse countries. To ensure that everyone enjoys equal opportunity and fair treatment in the workplace, the Employment Equity Act of 1998 (EEA) was enacted into law.
The EEA promotes equity in the workplace, ensuring that all employees receive equal opportunities and are treated fairly by their employers.
The EEA aims to redress past injustices by promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination and by implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups to ensure their equitable representation in all occupational categories and levels in the workforce.
The EEA is, therefore, closely related to our Constitution and the Basic Conditions of Employment Act (BCEA). The rights afforded to all citizens by our Constitution in our Bill of Rights also apply to employees. The Bill of Rights can be found in Chapter Two of our Constitution. Section 9 of our Constitution deals with Equality and reads as follows:
(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
It is clear from the above that the law protects the employee from unfair treatment and any form of unfair discrimination within the workplace.
The BCEA serves to advance economic development and social justice by fulfilling the primary objectives of the Act, which are:
- To give effect to and regulate the right to fair labour practices conferred by section 23(1) of the Constitution by establishing and enforcing basic conditions of employment; and
- By regulating the variation of basic conditions of employment.
Section 23(1), the most relevant, is entitled “labour relations” and states that everyone has the right to fair labour practices. This section not only caters for the rights of employees but also confers rights to employers. This section guarantees workers the right to fair labour practices, to form and join trade unions, and to participate in union activities and strikes.
Likewise, employers have the right to form and join employers’ organisations and to take part in their activities. These groups have the right to organise, form federations and engage in collective bargaining.
It is clear from the above that there is a close relationship between the EEA, BCEA and the Constitution. The EEA and BCEA have been enacted and serve to give life to the provisions of our Constitution, the country’s supreme law, within the labour sphere.
By Jason van der Merwe
Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)