Solidarity matter now on - Adv Mailetsa SC for Min of Police Adv Brassey SC and Gretha Engelbrecht for Solidarity (Barnard) Applicant submits - did SCA adopt proper approach to discrimination / if proper approach was adopted, was is properly applied? / is it open for this court to challenge the lawfulness of Employment Equity Significant constitutional issues - starting point is constitution - Employment Equity Act - requires employers to act in accordance with EEA, to be read in line with Constitution Sect 9(2) of EEA - One has to read Sect 9 provisions harmoniously - Employment Equity plan is not unconstitutional - common cause What is in issue is decision of Minister - not open to Respondent In Labour Court - Barnard accepted that the EE plan applied and measure adopted - she was part of the forum at which it was adopted - If any one of 2 african candidates were appointed there was no need for action - on that basis no other evidence presented (Froneman J - what other evidence could there be?) Attack says Plan imposes quotas - it does not do so rigidly - Commissioner has discretion - one has to examine in which plan was implemented - one would have to see as a matter of practice how the plan was implemented - that evidence not before court, because of how case was presented - (Zondo J) If Respondents sought to attack plan should they not have joined the Unions who were parties to the collective agreement?) Yes they should have been joined. Common cause plan was collective agreement - has statutory force (per Brasseys own book) - agreement binds parties (Employment law A3-77) (Kusa 2009(1) BCLR par 5) - collective agreements binding to all parties to agreement. (Sect 23 of LRA) Moseneke J - what would be import of act 20 of EEA? obliges employers to adopt AA measures - Is court at large to enquire whether plan is legally tolerable? May court enquire whether plan, if not impugned, is properly applied? Moseneke J - If plan passes muster under 9(2) or 6(2) is there room not to impugn plan but to detainee whether implemented? Yes, teh court may. Moseneke J - Then who has onus? Depends on test, if plan is not impugned -then not unfair - on rationality Minister has onus to show rationally applied. Moseneke J - Minister has accepted onus? Yes, but onus is a question of law - was accepted in lower court - incorrect concession of law not binding this court - Questions of law are questions of rationality - concession was incorrectly bound by it Froneman J - Implementation can be attack. Why is rationality relevant, is it not reasonableness? Sect 6 of EEA prohibits unfair discrimination - not such if AA measures are taken consistent with Act - EEA dos not prohibit discrimination, only unfair discrimination Once in 6(1) of EEA or 9(3) of constitution onus is attracted by Employer - is that right (Cameron J) - she alleges unfair discrimination Cameron J: Onus is surely on employer to establish measure taken by Employer is fair and consistent with EEA? We say no - on common cause facts - aff action measure here in terms of EEA - (van der Westhuizen J - onus in sect 9 of Constitution on employer, employer cannot simply say it is fair, if there is discrimination, employer must show otherwise) V/d W J - do you not have to show that it is affirmative action ? 9(2) cannot be read in isolation - read in context with rest of act 9? accept - obligation to show it is AA measure is on Employer Plan does not impose quotas. evidence has made it clear National Commissioner retains discretion - plan formulates targets by reference to demographics - if targets are inflexible, real quotas, then prohibited. Here no absolute barrier - Moseneke J - evidence that people get appointed in level 9
Posted on: Thu, 20 Mar 2014 08:55:32 +0000
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