About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2009
>>
[2009] ZALCJHB 113
|
|
Director General of the Department of Labour and Another v Comair Limited (J2326/07) [2009] ZALCJHB 113 (22 May 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
Case
no.
J2326/07
In the matter between
DIRECTOR GENERAL OF THE
DEPARTMENT OF
First Applicant
LABOUR
(The
Respondent in the Counter Application)
MINISTER OF
LABOUR
Second
Applicant
and
COMAIR LIMITED
Respondent
(The Applicant in the
Counter Application)
JUDGMENT
AC BASSON, J
Nature of the
Application
[1]
The application before the Court is a counter application to the main
application in terms of which the Applicant (in the main
application)
intends applying to this Court for an order declaring,
inter
alia,
that the Respondent (in the main application) is in
breach of section 20 of the Employment Equity Act 55 of 1998
(hereinafter
referred to as “the EEA”) by failing to
prepare and implement an employment equity plan which would achieve
reasonable
progress towards employment equity in the Respondent’s
workplace between the period 2000 to September 2007. The Applicant
also intends asking for a declaration that the Respondent is in
breach of section 21(2);(3);(4) & (5) of the EEA in that the
reports that were submitted were not based on any existing employment
equity plan and that the Respondent is in breach of section
21(3) of
the EEA in that the Respondent has failed to submit a report to the
Director General of Labour (the First Applicant in
the main
application - hereinafter referred to as “the DG”) on the
first working day of October 2007. An order is also
sought in terms
of which the Respondent must pay a fine in the sum of R 900 000.00
(nine-hundred-thousand-rand) as prescribed by
schedule 1 of the EEA.
The main application is opposed and both parties have filed
voluminous papers.
[2]
The Respondent in the main application has filed a counter
application seeking to dismiss the Applicant’s main
application.
I will return to this application hereinbelow. The main
application is not before the Court and has been postponed pending
the
outcome of the present (counter) application as it may well
dispose of the main application.
The
parties in the main and counter application
[3]
The First Applicant in the main application is the Director General:
Department of Labour and the Second Applicant the Minister
of Labour.
The Respondent in the main application is Comair Limited and is a
company conducting business in the aviation industry.
I will, for
convenience sake, continue to refer to the parties as the Applicant
and the Respondent although the Applicant in the
main application is
the Respondent in the counter application and
vice verse
.
Issue
before this Court
[4]
The issue before this Court
is of a limited scope. There are in essence, three questions before
this Court:
(i)
The first is whether the DG
is accountable through review proceedings for actions taken in the
exercise of the powers vested in
the DG under the EEA.
(ii)
If this Court finds that
this is so, the second question to be considered is whether the DG
properly exercised the public power
bestowed (and applied to the
Respondent) upon him in terms of the EEA.
(iii)
Should this Court find that
the DG did not properly exercise the public power in question; the
final question to consider is whether
or not the decision should be
set aside.
[5]
The parties were
ad
idem
that should this
application be decided in favour of the Respondent, that will also
bring an end to the main application (which
was postponed
sine
die
). The parties were
also
ad idem
that if this application is dismissed, the main application will, in
light of the considerable disputes of fact that exist on the
papers,
be referred to oral evidence.
Background
[6]
The
Interim Constitution
[1]
states
that it is an historic bridge between “
the
past of a deeply divided society… and a future founded on the
recognition of human rights [and] democracy”
.
The final Constitution
[2]
signals the successful transition to a constitutional democracy.
Both the interim and the final Constitution entrench a commitment
to
the protection of human rights. Fundamental to this commitment is the
recognition of the human dignity of each and every individual
and the
commitment to protect and recognise the right to equality of each and
every human being. Apart from being a core value
of the Constitution,
equality is also entrenched as a substantive human right.
[3]
[7]
Inequality
on the basis of (particularly) race and gender is deeply entrenched
in our society and has permeated all spheres of our
economy, the
workplace and wider society. There can be no argument about the fact
that South Africa is one of the most unequal
societies in the world.
These injustices of the past are specifically recognised in the
Constitution.
[4]
As a result of
the deeply embedded societal inequalities between, especially men and
women and between white and black, the dignity
of countless South
African men and women has been infringed upon and their inherent
right to equality denied. The Constitutional
Court in
Brink
v Kitshoff NO
[1996] ZACC 9
;
1996 (4) SA 197
(CC) recognised the severe effect of past
inequalities as follows:
“
[40] As in
other national constitutions, s 8 is the product of our own
particular history. Perhaps more than any of the other provisions
in
chap A 3, its interpretation must be based on the specific language
of s 8, as well as our own constitutional context. Our history
is of
particular relevance to the concept of equality. The policy of
apartheid, in law and in fact, systematically discriminated
against
black people in all aspects of social life. Black people were
prevented from becoming owners of property or even residing
in areas
classified as 'white', which constituted nearly 90% of the landmass
of South Africa; senior jobs and access to established
schools and
universities were denied to them; civic amenities, including
transport systems, public parks, libraries and many shops
were also
closed to black people. Instead, separate and inferior facilities
were provided. The deep scars of this appalling programme
are still
visible in our society. It is in the light of that history and the
enduring legacy that it bequeathed that the equality
clause needs to
be interpreted.
[41] Although our
history is one in which the most visible and most vicious pattern of
discrimination has been racial, other systematic
motifs of
discrimination were and are inscribed on our social fabric. In
drafting s 8, the drafters recognised that systematic
patterns of
discrimination on grounds other than race have caused, and many
continue to cause, considerable harm. For this reason,
s 8(2) lists a
wide, and not exhaustive, list of prohibited grounds of
discrimination.”
[8]
It
is against this historical background that the interim and final
Constitution
[5]
commits itself
to the core democratic values of dignity and equality. The
Constitution strives not only to protect formal equality
(which
merely requires equal treatment for all irrespective of the barriers
faced by an individual and the specific group to which
he or she
belongs) but, more importantly, substantive equality or equality in
outcome. This substantive notion of equality therefore
accepts the
reality that the protection of formal equality between individuals or
groups of individuals (who are members of previously
disadvantaged
groups) is not sufficient to address the inequalities that are so
deeply entrenched in our society and experienced
by certain groups of
our society. Janet Kentridge “Equality” in Chaskalson
et
al
Constitutional
Law of South Africa
1999 at paragraph 14.4 describes the difference between this two
notions of equality as follows:
“
A
formal approach to equality assumes that inequality is aberrant nd
that it can be eradicated simply by treating all individuals
in
exactly the same way. A substantive approach to equality, on the
other hand, does not presuppose a just social order. It accepts
that
past patterns of discrimination have left their scars upon the
present. Treating all persons in a formally equal way not is
not
going to change the patters of the past, for that inequality needs to
be redressed and not simply removed, This means that
those who were
deprived of resources in the past are entitled to an “unequal”
share of resources at present.”
[9]
This notion of equality thus
accepts that true or actual equality can only be attained through
legislative (and other) measures
designed to actively remove the
social barriers encountered by those persons or categories
historically disadvantaged by unfair
discrimination and to promote
the representation of these categories of individuals in all spheres
of society.
[10]
In
order to give effect to the substantive approach of equality, a
positive duty is therefore placed upon government to ensure that
every individual fully enjoys all rights and freedoms and to promote
the achievement of equality though the adoption of measures
designed
to protect or advance persons or categories of persons disadvantaged
by unfair discrimination in the past.
[6]
These measures clearly include affirmative action measures.
[11]
The
EEA was passed to give effect to section 9 of the Constitution and
more in particular, to give effect to the constitutional
notion of
equality which embraces both formal and substantive equality. The EEA
recognises the harsh effects of the disparities
faced by members of
the previously disadvantaged groups in employment, occupation and
income within the national labour market
and seeks to correct and
address these disparities through a process of active interventions.
The EEA also seeks to address the
historical imbalances created by
past discriminatory laws and labour practices. The EEA furthermore
sets out to actively promote
the constitutional right of equality and
the exercise of true democracy, to eliminate unfair discrimination in
employment; to ensure
the implementation of employment equality to
redress the effects of discrimination; to achieve a diverse workforce
broadly representative
to our people; to promote economic development
and efficiency in the workforce; and to give effect to the
obligations of the Republic
as a member of the International Labour
Organisation.
[7]
The EEA thus
firmly embraces both notions of equality: The EEA not only prohibits
unfair discrimination (formal equality),
[8]
but also promotes and ensures that designated employers implement
affirmative action measures (substantive equality).
[9]
[12]
In
order to promote and ensure adherence to the goal of employment
equity, the EEA thus places an obligation on every designated
employer to implement affirmative action measures for people from the
designated groups.
[10]
As such
the EEA contains a mandatory obligation to implement affirmative
action measures for people from the designated groups.
These
obligations entail the adoption of affirmative action measures as
contemplated by section 15
et
seq
of the EEA. A designated employer must submit its first report
to the DG within six months
[11]
after the commencement of this Act. The general duties of designated
employers are contained in Chapter III of the EEA. Central
to
achievement of affirmative action measures as contemplated by the EEA
is the adoption of active interventions created through
a process of
consultation,
[12]
analysis and
the creation of a profile of employees.
[13]
The construction of an employment equity plan designed to achieve
“
reasonable
progress towards employment equity in that employer’s
workforce
”,
[14]
is at the heart of the programme, with support emanating from the
generation and publication of a report,
[15]
and the location of the employers responsibility with a member of
senior management with duties to inform and keep records.
[16]
In short, these measures are aimed at identifying and eliminating the
employment barriers which adversely affect those members
from the
designated groups. In order to ensure that designated employers
comply with these mandatory provisions and to ensure compliance
with
the ultimate purpose of the EEA, the EEA, through its labour
inspectors and the DG are clothed with monitoring and enforcement
powers. As will become clear from the discussion hereinbelow, these
monitoring and enforcement officials play a crucial roll in
ensuring
compliance with the EEA.
[13]
Chapter
V of the EEA provides for monitoring enforcement and legal
proceedings. Chapter V grants labour inspectors who act in terms
of
the EEA the power to enter, question and inspect as provided for in
sections 65 and 66 of the Basic Conditions of Employment
Act
[17]
(hereinafter referred to as “the BCEA”).
[18]
[14]
There is no doubt that the
DG (through its inspectors) plays a crucial roll in monitoring and
enforcing the instruction to designated
employers to implement
affirmative action measures as contemplated by the provisions of the
EEA. In light of the fact that the
value of equality is one of the
very cornerstones of our constitutional democracy, it is therefore
expected and critical that labour
inspectors appreciate and embrace
the importance of their functions in terms of the EEA.
[15]
In
terms of section 43 of the EEA, the DG is entitled to conduct a
review of an employer in order to determine whether or not the
employer is compliant with the EEA. This power of review is provided
for in section 43 of the EEA. Subsequent to the review in
terms of
section 43 the DG may either approve a designated employer’s
employment equity plan or make a recommendation to
an employer in
writing stating the steps that the employer must take in connection
with the implementation of the equity plan in
order to ensure
compliance with the EEA; the period within which those steps must be
taken and any other prescribed information.
[19]
If the DG is not satisfied with the steps that an employer has taken
in its endeavors to comply with its obligations in terms of
Chapter
III of the EEA (either in terms of section 43(2) or the
recommendation in terms of section 44(b) of the EEA), the DG may
refer the employer’s conduct to the Labour Court in terms of
section 45 of the EEA which reads as follows:
“
If
an employer fails to comply with a request made by the
Director-General in terms of section 44(b), the Director-General may
refer the employer’s non-compliance to the Labour Court.”
The
counter application
[16]
In the main application, the
Applicant has placed several hundred pages worth of documentation
before this Court describing its
efforts at chastising Comair for its
alleged non-compliance with its obligations in terms of the EEA.
Comair in turn responded
with its answer. A further reply was
received from the Director General which, in Comair’s opinion,
demonstrated that the
DG wrongly lacked a proper appreciation of the
system of enforcement created by the EEA. I am in agreement with Mr.
Sutherland
that these voluminous papers are awash with substantial
and material disputes of fact which cannot be resolved on paper and
that
the dispute (if not disposed of by these proceedings) will have
to be referred to oral evidence to resolve these disputes. I am
also
in agreement that a hearing, if it becomes necessary, will be a
lengthy one.
[17]
Comair is of the view that
the DG misunderstood its powers in terms of the EEA and as a
consequence thereof instituted a counter
application to challenge, by
way of review, the very lawfulness of the exercise of the powers of
the DG under the EEA, including,
in the circumstances of this case,
the act of referring the dispute to the Labour Court in terms of
section 45 of the EEA. It was
submitted, correctly in my view, that
the counter application is dispositive of the entire matter and
should therefore be determined
first and separately from the main
application. It is clear from Comair’s counter application that
what it requires is a
determination of the powers of the DG and his
department as created by the EEA. In order to do so, it is necessary
to first determine
the powers of this Court in respect of the
functions of the DG in terms of the EEA. Once the nature and ambit of
the Court’s
powers have been determined, will reference be made
to the specific facts upon which Comair premises its cause of action.
[18]
Consequent to the DG’s
assessment of Comair’s compliance, the Applicant has referred
the Comair’s alleged non-compliance
to the Labour Court.
[19]
In terms of the present
(counter) application, the Respondent firstly seeks to review and set
aside the recommendations issued by
the First Applicant (the DG)
pursuant to section 44(b) of the EEA. A copy of the recommendations
is annexed to the papers and reference
thereto will be made
hereinbelow. Secondly, the Respondent seeks to review and set aside
the decision taken by the DG pursuant
to section 45 of the EEA to
refer the Respondent’s alleged non-compliance with the
recommendations in terms of section 44(b)
of the EEA to the Labour
Court. The Respondent argues that this Court is empowered in terms of
section 50(1)(h) of the EEA to review
the decisions of the DG as
contemplated by the EEA.
The
enforcement mechanisms provided for by the EEA
[20]
Cursory reference has
already been made to the enforcement mechanisms provided for by the
EEA. These are threefold in scope:
(i)
The
first consists of a monitoring by employees and the trade union
representatives within the work place and the reporting thereof
to
any of those persons listed in section 34 of the EEA including but
not limited to the DG or a labour inspector.
[20]
(ii)
The
second is the investigative procedures instituted by labour
inspectors in terms of section 35 of the LRA. These powers include
entering the premises of any workplace and to question and inspect
any records and documents.
[21]
(iii)
The third process envisages
the involvement of the Labour Court in terms of section 45 of the
EEA.
The
functions and powers of labour inspectors
[21]
Labour inspectors are not
created nor appointed under the EEA. The EEA does, however, rely upon
labour inspectors appointed and
empowered in terms of sections 63 –
67 of the BCEA. Section 64 of the BCEA provides that a labour
inspector may promote,
monitor and enforce compliance with “
an
employment law
” by
inter alia,
performing any prescribed function.
[22]
For purposes of the
counter-application it is necessary to briefly consider what labour
inspectors may or must do in terms of the
EEA.
Procedure
in terms of section 36 of the EEA
[23]
In
terms of section 36 of the EEA, labour inspectors “
must
”
request and obtain a written undertaking from a designated employer
to comply with paragraphs (a) – (j)
[22]
of section 36. This the inspector will only do “
if
the inspector has reasonable grounds to believe that the employer has
failed to [comply with paragraphs (a) – (j) of section
36]”
Procedure
in terms of section 37 of the EEA
[24]
Where
the designated employer has refused to give a written undertaking in
terms of section 36 or has failed to comply with
a written
undertaking given in terms of section 36, the labour inspectors then
have the power to issue compliance orders.
[23]
The compliance order “
must”,
inter alia
,
set out those provisions of the EEA which the employer has not
complied with, and details of the conduct constituting
non-compliance;
any written undertaking given by the employer and
failure by the employer to comply with a written undertaking; what
steps the
employer must take and the period within which those steps
must be taken; the fine which may be imposed on the employer for
failing
to comply with the order, and any other prescribed
information. This order must be served in a particular manner
[24]
and must be displayed at the workplace.
[25]
The DG may even approach this Court for an order to make the
compliance order an order of court.
[25]
An
employer may object to a compliance order and if confirmed by the DG,
may appeal the compliance order to the Labour Court.
[26]
Review
by the DG in terms of section 43 of the EEA
[26]
Parallel
with the process of compliance instituted by labour inspectors, it
appears that the DG may also conduct a review to determine
whether an
employer is complying with the EEA.
[27]
This form of review is an administrative function performed by the
DG. In terms of the powers designated to the DG, the DG may
request
the employer to submit (to the DG) a copy of its current analysis or
employment equity plan. The DG may also have insight
into any books,
records, correspondence, documents or information that could
reasonably be relevant to a review of the employer’s
compliance
with the EEA. The DG may also conduct meetings with the employer to
discuss their pursuit of the employment equity plan
and any matters
relating to compliance with the EEA. This process may also
include meetings with any employee or trade union
consulted with in
terms of section 16 of the EEA.
[27]
Subsequent
to the review by the DG, the DG may approve a designated employment
equity plan; or make a recommendation to the employer
in writing
stating what steps should be taken in connection with an employment
equity plan and appropriate time frames in
which that must be
achieved.
[28]
[28]
If
an employee fails to comply with the DG’s recommendations, the
DG “
may”
refer the matter to the Labour Court.
[29]
Implicit therein is the power to decide whether it is appropriate to
refer the matter to the Court, or to utilize other enforcement
mechanisms contemplated by the EEA.
Powers
of the Labour Court in terms of section 50 of the EEA
[29]
The
Labour Court has exclusive jurisdiction to determine any dispute
about the interpretation or application of the EEA.
[30]
The Labour Court also has the power to order compliance with any
provision of the EEA including a request made by the DG to make
a
compliance order an order of Court.
[31]
[30]
In terms of section 50(1)(h)
of the EEA, the Labour Court has the power to review any function
provided for in this Act
“
Except where
this Act provides otherwise, the Labour Court may make any
appropriate order including –
(h)
reviewing the performance or purported performance of any function
provided for in this
Act or any act or omission of any person or body
in terms of this Act on any grounds that are permissible in law;”
[31]
Whether or not this section empowers the Labour Court to review the
DG performing his or her functions in terms of the said
sections of
the EEA is in dispute. I will refer to this issue hereinbelow.
[32]
It is thus clear from the
aforegoing that the EEA empowers certain state officials (labour
inspectors and the DG of Labour) with
powers to investigate and
ensure compliance with the provisions of the EEA. In exercising its
powers and responsibilities in terms
of the EEA, these individuals
are required to bring value judgments on the degree of compliance as
well as the pace at which the
objectives of the EEA are being
accomplished. This is especially clear from the provisions of section
43 of the EEA. I will return
to this section hereinbelow. The EEA
also provides for the consequence of non-compliance with the EEA.
These consequences include
a system of administrative fines and
sanctioning by this Court.
Section
42 of the EEA: Assessment of compliance
[33]
Section 42 of the EEA
provides the framework against which the DG will assess compliance
with the EEA in respect of employment equity
policies and programmes.
At the outset it should be noted that this section clearly places an
obligation
upon the DG to assess certain factors in evaluating compliance. This
section reads as follows:
“
42. Assessment of
Compliance
In
determining whether a designated employer is implementing employment
equity in compliance with this Act, the Director-General
or any
person or body applying this Act
must,
in
addition
[32]
,
to the factors stated in section 15
,
[33]
take into account all of the following:
(a)
The extent to which
suitably qualified people from and amongst the different designated
groups are equitably represented within
each occupational category
and level in that employer’s workforce in relation to the-
(i) Demographic
profile of the national and regional economically active population;
(ii) Pool of suitably
qualified people from designated groups from which the employer may
reasonably be expected to promote or appoint
employees;
(iii) Economic and
financial factors relevant to the sector in which the employer
operates;
(iv) Present and
anticipated economic and financial circumstances of the employer; and
(v)The number of
present and planned vacancies that exist in the various categories
and levels, and the employer’s labour
turnover;
(b)
Progress made in implementing equity by other designated employers
operating
under comparable circumstances and within the same sector;
(c)
Reasonable efforts made by a designated employer to implement its
employment equity plan;
(d)
The extent to which the designated employer to implement its
employment barriers that adversely
affect people from designated
groups; and
(e)
Any other prescribed factor”.
[34]
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. 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 regard 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.
[35]
As already pointed out,
Comair, in the present application, seeks to review the exercise by
the DG of his powers in terms of which
compliance of Comair was
reviewed and in terms of which the DG had decided to refer the
alleged failure to comply to the Labour
Court in terms of section 45
of the EEA. In a nutshell it is argued on behalf of Comair that the
DG has patently not taken into
account
all
of the considerations as set out in and required by section 42 of the
EEA.
[36]
I have already briefly
referred to the vexing issue in dispute and that is whether or not
the Labour Court may review the functions
of the DG in terms of the
EEA. On behalf of the Respondent it was argued that it is not clear
from the papers whether or not Comair
relies on the grounds contained
in section 6 of the Promotion of Administrative Justice Act 3 of 2000
(hereinafter referred to
as “PAJA”) or whether it relies
on the grounds in section 145 of the Labour Relations Act 66 of 1995
(hereinafter referred
to as “the LRA”) or whether Comair
is relying on common law grounds. The Applicant argued that the
application should
be dismissed on either of these grounds: It was
submitted that no case has been made out for a review on common law
grounds. In
respect of PAJA it was submitted that these grounds do
not find application in reviews adjudicated by the Labour Court.
Lastly,
because no case has been made out in respect of which law it
relies on, the application for review should be refused.
[37]
The Applicant further
submitted that it is clear from the EEA that the DG is empowered in
terms of section 43 to conduct a review
to determine whether or not
the employer is complying with the provisions of the EEA and that
there can therefore be no doubt that
the law empowers the DG to
conduct such a review. I did not understand Mr. Sutherland to dispute
this. What is, however, disputed
by the Respondent is whether or not
the DG properly exercised its powers in terms of section 43 of the
EEA.
[38]
The Applicant further
submitted that the DG
is
entitled to bring an application to the Labour Court in circumstances
where he is satisfied that there has been no compliance with
the
provisions of the EEA by the employer. Again, I did not understand
Mr. Sutherland to dispute that the DG may do this. It is
thererore
not in dispute that the DG has certain powers in terms of the EEA.
What is disputed, as already pointed out, is
how
the DG exercised his powers and whether this Court has the power to
review.
[39]
In the heads of argument on
behalf of the Applicant, Mr. Mokhare stated that the DG has taken
into account all other relevant factors
including those set out in
section 42 of the EEA. Whether or not this is so will be discussed
hereinbelow and will only be considered
if I am satisfied that this
Court does indeed have the jurisdiction to review the DG’s
discretion which he has exercised
in terms of the EEA. On behalf of
the DG it was submitted that the review “
the
review is bad in law and that the recommendations of the
Director-General are not susceptible to review
.”
This allegation (as already pointed out) is strongly denied by
Comair.
[40]
In my view it is not
necessary to decide whether or not a review is competent in terms of
section 145 of the LRA, PAJA or even the
common law. Section 50(1)
(h) of the EEA makes it, in my view, clear that is the Labour Court
may make any appropriate order including
“
reviewing
the performance or purported performance of any function provided for
in the Act or any act or omission of any person
or body in terms of
the Act on any grounds that are permissible in law
”.
I am also in agreement with Mr. Sutherland that the similarity
between the provisions of section 50(1)(h) of the EEA and
section
158(1)(g) & (h) of the LRA are apparent. The texts of both
statutes are virtually indistinguishable and both have as
their aim
the clothing of the Labour Court with jurisdictional competence. In
the context of the EEA, it clothes the Labour Court
with reviewing
powers which includes reviewing
any
function
provided for in
the EEA
by any person
in terms of the EEA. What is also apparent from section 49 of the EEA
is that the Labour Court has
exclusive
jurisdiction
to
determine any dispute about the interpretation of EEA except where
the EEA provides otherwise. I am in agreement with Mr. Sutherland
that no provision is to be found in the EEA that stipulates that the
exercise of the DG’s powers and directions are immune
from
review. If that was so one would have expected the legislature to
have expressly stated that the Labour Court may not review
the
exercise of the DG’s powers. Accordingly, the Labour Court has
exclusive jurisdiction to resolve any dispute about the
interpretation or application of the EEA including whether or not the
DG has applied section 42 when he considered whether or not
Comair
has complied with the EEA.
[41]
The
focus of this review is whether or not there are grounds “
permissible
in law
”
to review the decision by the Director-General to issue the
recommendations and to refer the matter to the Labour Court.
In
exercising this power the DG is exercising public power which is
susceptible to control by the courts in accordance with fundamental
principles of constitutionalism and administrative law. I am in
agreement with the submission that this proposition is not
controversial.
[34]
I am
further in agreement with the submission that a decision to conduct a
review, the decision to make and issue recommendations
and to refer a
matter to the Labour Court all involves the exercise of public power.
These powers are specifically bestowed on
certain public officials in
terms of legislation. The exercise of these (public) powers has also
undoubtedly direct and far reaching
consequences for those
individuals who are affected by the exercise of the powers bestowed
on public officials in terms of the
EEA. Having thus accepted that
the DG’s conduct constitutes the exercise of public power it
follows that a Court may review
such conduct for lawfulness and
compliance with the requirements set out in a particular statute.
Included in this review is a
review of the facts and considerations
taken into account by the public official in coming to a decision
contemplated by the Act.
[35]
Recommendation
by the DG
[42]
The recommendation issued by
the DG briefly states what the obligation of the employer is in terms
of the EEA. This is followed
by a cryptic outcome and a
recommendation. The recommendation, for the best part, merely relies
on the relevant provisions of the
EEA. I cite two examples from the
recommendation:
Example
1
Duties of designated
employers
Analysis (Sect 19)
Outcomes
There was no analysis
conducted
Recommendations
●
When
a designated employer collects information about individual
employees for the purpose of compiling a workforce profile
to
determine the degree to which employees from designated groups
might be underrepresented, the employer must request each
employee
in the workforce to complete a declaration using the EEA1 form.
Employees must at any
time be able to add information to the EEA1 form.
●
Where
an employee refuses to complete the EEA1 form or provides
inaccurate information, the employer may establish the degination
of an employee by using reliable historical and existing data.
●
A
designated employer must use section B of the EEA2 form to develop
the workforce profile of employees as required by section
19(2) of
the Act, the employer may refer to:
a) Annexure 1 for
demografic data;
b) Annexure 2 which
contains the definitions of occupational levels; and
c) Annexure 3. which
contains the definitions of occupational categories
●
A
designated employer must refer to the Code of Good Practice:
Preparation, Implementation and Monitoring of Employment Equity
Plans as a guide when collecting information and conducting the
analaysis required by section 19 of the Act.
●
The
analysis must involve reviewing all policies, procedures,
practices and the work environment in order to eliminate unfair
discrimination and prmote employment equity in the workplace,
including when commencing employment during employement and
ending
employment.
Due date
Example
2
Duties of designated
employers
Report (section 21)
Outcomes
The Report does not
comply with the requirements of the Act because it is not based on
an EE plan
Recommendations
Prepare and submit a
complete and accurate report based on your employment equity plan
Due date
Merits
of the review
[43]
I am in agreement with
Comair that the recommendation by the DG does not reflect that there
has been an application of mind to the
matter. Even more supportive
of the argument that the DG did not apply his mind is the fact that
there is no indication from the
recommendation that the DG complied
with the mandatory instruction contained in section 42 of the EEA.
There is no indication that
the DG even considered the factors which
the DG is obliged to consider in terms of section 42 of the EEA.
There is, for example,
no indication that the DG requested Comair to
submit (to the DG) a copy of its current analysis or employment
equity plan (section
43(2) of the EEA). I am also in agreement with
the submission made by Mr. Sutherland that there is no indication
from the recommendation
that an effort was made to determine the
number of suitably qualified people amongst the different designated
groups within each
occupational category in Comair’s workforce;
no measurement has been made against the demographic profile of the
national
and regional economically active population (section
42(a)(i) of the EEA. There also appears to have been no consideration
of the
pool of suitably qualified people (section 42(a)(ii) of the
EEA). No allowance was made for the economic and financial factors
relevant to the sector or the financial circumstances of this
particular employer nor is any reference made to the number of
vacancies
that exist in the various categories and levels within
Comair, nor the employer’s labour turnover. No recognition or
reference
is made to any progress that may have been made by Comair
towards implementing the plan. The recommendation also does not show
that the DG has considered whether this employer has made any
progress in eliminating employment barriers that adversely affect
people from the designated groups.
[44]
It must also be pointed out
that the DG has filed a record consisting of some 234 pages pursuant
to the filing of the counter application.
Comair thereafter filed its
supplementary affidavit dealing with the documentation that was
filed, or rather with the fact that
certain documents were
not
filed namely those
documents or information which was relied upon by the DG for purposes
of arriving at the decisions contained
in the recommendation. The
attorneys for the Respondent upon receipt of the documents
specifically requested the DG to confirm
whether all documents upon
which were relied were received. The State Attorney on behalf
of the Applicant confirmed that
the documents were complete.
[45]
Mr. Mokhare on behalf of the
Applicant submitted that it does not matter whether or not the DG was
right or wrong in arriving at
its decision. According to the
submission it is “irrelevant” and the only avenue open
for the Respondent is to come
and defend itself before this Court in
the main application. Mr. Mokhare also argued that the factors listed
in section 42 of the
EEA is merely an assessment tool and not
decisive. It was further argued that even if those factors (contained
in section 42) were
not taken into account that does not mean that
the recommendation must be set aside. In further advancing this
argument, it was
argued that this Court should not follow a
formalistic approach but that this Court should follow a holistic
approach.
[46]
I
have several difficulties with this argument. The first is the plain
language used in section 42 namely that the DG in “
applying
this Act,
must
,
[36]
in
addition to the factors stated in section 15, take into account all
of the following [section 42(a) – (e) of the EEA]”.
There is no doubt from a plain reading of this section that there is
a mandatory duty upon the DG to consider these factors. It
is clear
from the documents filed by the state attorney that these factors
were not considered. The only question that therefore
remains is
whether or not this Court has the power to review the exercises of
the functions of the DG. This is not a question of
being formalistic
or following a holistic approach. The DG either exercised his
functions properly or he did not. Whether this
Court can review the
exercise of this function is a legal question and not a policy
consideration. I have already indicated that
I am of the view that
the Labour Court can review.
Conclusion
[47]
I have carefully considered
the documents that were placed before the DG (and disclosed as part
of these proceedings). I am not
persuaded that the DG has properly
exercised his discretion as contemplated by section 42 of the LRA. It
is clear from the recommendation
that it, to a large extent, merely
paraphrases extracts from the relevant sections. Moreover, no attempt
has been made to properly
consider the factors set out in section 42
of the EEA.
[48]
I am therefore firstly of
the view that the decision of the DG is reviewable in terms of
section 50(1)(h) of the EEA and that it
should be set aside. I am
further in agreement that the decision of the DG to refer the matter
to the Labour Court should be reviewed
and set aside. Clearly the
latter decision was influenced by the outcome of the original
recommendation.
[49]
Mr. Sutherland has also
argued that there is a further basis upon which this Court should
review the referral and that is because
the EEA provides for other
mechanisms to deal with these kinds of complaints. I do not intend to
deal with this submission in light
of my conclusion that the decision
should be reviewed and set aside.
Condonation
applications
[50]
On last aspect should
briefly be dealt with and that is the two condonation applications
before this Court. The Applicant applied
for condonation for the late
filing of its answering affidavit. This was not opposed by Comair who
wishes to ventilate the merits
of the dispute. The Applicant,
however, argued that Comair’s dispute has been referred out of
time and that no condonation
has been sought. No provision in
the EEA stipulates the time period within which the review should be
instituted. The review
process instituted in terms of the EEA is,
however, similar to the one instituted in terms of section 158(1)(g)
of the LRA which
requires that the review must be instituted within a
reasonable time. A reasonable time is considered in terms of the LRA
(to review)
to be 6 weeks. Comair concedes that with the benefit of
hindsight the review could conceivably have been instituted
immediately
upon the receipt of the recommendations. This was,
however, not done. In its defense, it was argued by Comair that it
should be
taken into account that the DG did not issue any reasons
for the recommendations that were issued and that it was only when
the
specific complaints relating to the absence of compliance with
section 42 of the EEA were pertinently raised in the answering
affidavit
to which the DG did not respond in its replying affidavit
that Comair’s suspicions were confirmed and the review
application
could be initiated. I accept this explanation and
therefore grant condonation in so far as it is necessary to do so. I
am also
of the view that this is such an important matter that it is
necessary for this Court to consider the many legal issues that were
raised in this application.
Order
[51]
In the event, the following
order is made:
1.
The Application for
condonation for the late filing of the counter review is granted.
2.
The Application for
condonation for the late filing of the answering affidavit is
granted.
3.
The recommendation by the
First Applicant dated 15 March 2007 in terms of
section 44(b)
of the
Employment Equity Act 55 of 1998
is reviewed and set aside.
4.
The decision by the First
Applicant in terms of
section 45
of the
Employment Equity Act 55 of
1998
to refer the Respondent’s alleged non compliance with the
recommendations dated 15 March 2007 to the Labour Court is reviewed
and set aside.
5.
The Applicant is ordered to
pay the costs including the costs of two counsel.
_________________________
AC
BASSON, J
DATE
OF JUDGMENT: 11 August 2009
DATE
OF APPLICATION: 22 MAY 2009
FOR
THE APPLICANT
Adv
WR Mokhare
Instructed
by the State Attorney
FOR
THE RESPONDENT
R
Sutherland SC
Adv
D Vetten
Instructed
by Edward, Nathan Sonnenbergs
[1]
Act 200 of 1993.
[2]
Constitution of the Republic of South Africa, Act 108 of 1996.
[3]
Section 9 of the Constitution.
[4]
The preamble of the Constitution.
[5]
Chapter 1 of the Constitution sets out the founding provisions of
our Constitutional democracy as follows: “
The
Republic of South Africa is one, sovereign, democratic state founded
on the following values:
(a)Human
dignity, the achievement of equality and the advancement of human
rights and freedoms.
(b)Non-racialism
and non-sexism.
(c)Supremacy
of the constitution and the rule of law.
(d)Universal
adult suffrage, a national common voters roll, regular elections and
a multi-party system of democratic government,
to ensure
accountability, responsiveness and openness.”
[6]
Section 9 of the Constitution embraces equality 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.”
[7]
The pre-amble of the EEA.
[8]
See
Chapter 2, sections 5-11 of the EEA.
[9]
See
Chapter 3, sections 12-17 of the EEA
[10]
Section 13 of the EEA.
[11]
12 months if the designate employer employs fewer than 150 employees
(section 21(1) of the EEA).
[12]
See
sections 16-18 of the EEA.
[13]
See
section 19 of the EEA.
[14]
See
section 20 of the EEA.
[15]
See
section 21 and 22 of the EEA.
[16]
See
sections 24-26 of the EEA.
[17]
Act 75 of 1997.
[18]
Section 35 of the EEA.
[19]
Section 44 of the EEA.
[20]
See
section 34 (a) – (g) of the EEA.
[21]
See section 65 and 66 of the BCEA.
[22]
“
(a)consult
with employees as required by section 16;
(b)conduct
an analysis as required by section 19;
(c)prepare
an employment equity plan as required by section 20;
(d)implement
its employment equity plan;
(e)submit
an annual report as required by section 21;
(f)publish
its report as required by section 22;
(g)prepare
a successive employment equity plan as required by section 23;
(h)assign
responsibility to one or more senior managers as required by section
24;
(i)inform
its employees as required by section 25; or
(j)keep
records as required by section 26.”
[23]
See
section 37 of the EEA.
[24]
See section 37(3) of the EEA.
[25]
Section 37(3); (4) & (5) of the EEA.
[26]
Section
39 and 40 of the EEA.
[27]
See
section 43 of the Act
[28]
Section 44 of the EEA.
[29]
See
section 45 of the EEA.
[30]
See
section 49 of the EEA.
[31]
Section 50(1)(a) of the EEA.
[32]
My emphasis.
[33]
“
15Affirmative
action measures
(1)
Affirmative action measures are measures designed to ensure that
suitably qualified people from designated groups have equal
employment opportunities and are equitably represented in all
occupational categories and levels in the workforce of a designated
employer.
(2)
Affirmative action measures implemented by a designated employer
must include-
(a)measures
to identify and eliminate employment barriers, including unfair
discrimination, which adversely affect people from
designated
groups;
(b)measures
designed to further diversity in the workplace based on equal
dignity and respect of all people;
(c)making
reasonable accommodation for people from designated groups in order
to ensure that they enjoy equal opportunities and
are equitably
represented in the workforce of a designated employer;
(d)
subject to subsection (3), measures to-
(i)ensure
the equitable representation of suitably qualified people from
designated groups in all occupational categories and
levels in the
workforce; and
(ii)retain
and develop people from designated groups and to implement
appropriate training measures, including measures in terms
of an Act
of Parliament providing for skills development.
(3)
The measures referred to in subsection (2) (d) include preferential
treatment and numerical goals, but exclude quotas.
(4)
Subject to section 42, nothing in this section requires a designated
employer to take any decision concerning an employment
policy or
practice that would establish an absolute barrier to the prospective
or continued employment or advancement of people
who are not from
designated groups.”
[34]
See:
Pharmaceutical
manufacturers Association of
SA
in
re Ex
Parte
President of
RSA
[2000] ZACC 1
;
2000
(2) SA 674
(CC) at
[85]
and
President,
RSA v SARFU
2000 (1) SA (CC) at [44].
[35]
For
examples of cases of review for failures by public officials
exercising public power see
Hira
v Booysen
1992 (4) SA 69
(A) at 93 A – B;
Pepkor
Retirement Fund v FSB
2003 (3) SA 38
(SCA) at [47] –[49];
Gamavest
(Pty) Ltd v Regional Commissioner, Northern Province &
Mpumalanga
2003 (1) SA 373
(SCA) at [12] and
SAJBD
v Sutherland N.O
.
2004 (4) SA 368
9W) at [27] – [30 ].
[36]
My emphasis.