Legislative Overview

Let us point out that two basic precepts must be observed throughout the acquisition process.

1. An employer must not discriminate in any manner against an individual based on that individual’s race, sex, age, religion, national origin, and disability.
2. An employer must take employment equity into considering recruiting, hiring, and promoting black and female employees that would not only ensure equity but that would compensate for the historic lack of equal opportunity.

Before we delve deeper into these two concepts, it may be helpful to review crucial legislation.

The Labour Relations Act (no 66 of 1995) As Amended

The Labour Relations Act 1995 was promulgated on the 11 November 1996 and regulates selection practices in South Africa.

Purpose of LRA:

• Makes provision for a framework for labour related issues for employers, employees, employers organisations and trade unions.
• Regulate the fundamental rights of workers and employers.
• To contribute to the promotion of economic development, labour peace, a democratic workplace and social justice.
• The Act provides, among other things, that employees can establish unions/associations or join a trade union to enable them to protect their interests, as well as collective bargaining and workplace forums.
• Employers can establish employer organisations and may join such organisations, e.g. the Agricultural Employers Organisation
• Regulations are built into the LRA to ensure that this organisation act democratically and exercise proper financial control.

Schedule 7

Schedule 7 of the Act includes applicants for employment, under the term ‘employee’. Therefore, when the Act deals with Residual Unfair Labour Practice, the provision applying to applicants for employment, for the purpose of this section means “…any act or omission which arises between an employer and an employee, involving –

The unfair discrimination, either directly or indirectly, against an employee on any arbitrary grounds, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital or family responsibility.”

Though the failure to comply with the above terms will result in a residual unfair labour practice, the Act has also made provision, not to preclude any employer from adopting or implementing employment policies and practices which are designed to achieve the adequate protection and advancement of persons or groups or categories of persons, disadvantaged by unfair discrimination. Differentiation on any arbitrary grounds will be illegal unless it takes place under the umbrella of an ‘affirmative’ or ‘corrective’ action policy.

Schedule 7 is not the only section of the Act which impacts on an organization's selection process. Section 5 addresses the ‘Protection of employees and persons seeking employment’. In this section, the concept of freedom of association is dealt with. The specific sub-sections are outlined below.

No person may do, or threaten to do, any of the following:

• Require an employee or a person seeking employment not to be a member, not to become one, or to give up membership of a trade union or workplace forum.
• Prevent an employee or a person seeking employment from exercising any right conferred by this Act or from participating in any proceedings in terms of this Act; or
• Prejudice an employee or a person seeking employment because past, present or anticipated
  • Membership of a trade union or workplace forum;
  • Participation in the lawful activities of a trade union, federation of trade unions or workplace forum.
  • No person may advantage, or promise advantage to, an employee or a person seeking employment in exchange for that person not exercising any right conferred by this Act or not participating in any proceedings in terms of this Act.

A provision in any contract, whether entered into before or after the commencement of this Act, that directly or indirectly contradicts or limits this section, is valid.