Trade union Solidarity and the government have signed a settlement agreement regarding the application of the Employment Equity Act (EEA).
The agreement states, among other things, that no one’s employment may be terminated because of a company’s affirmative action programme, race may not be used as the sole criterion for employment and promotion, and affirmative action is temporary, “in line with the Constitution”.
The agreement was signed by Solidarity chairperson Flip Buys and Employment and Labour Minister Thulas Nxesi in Pretoria on 28 June. It will be gazetted as part of the 2023 employment equity regulations.
The parties have agreed that the settlement will be made an order of court. Companies will therefore be obliged to implement it.
As a result of the agreement, Solidarity has withdrawn its Constitutional Court challenge to the Employment Equity Amendment Act and its regulations.
Business Day quoted Buys as saying: “In short, the agreement says the government and companies may not use race to determine who is hired, fired, or promoted. They must use a more nuanced approach. Race cannot be the only factor.”
According to the report, Buys said the agreement was a step in the right direction, but “a lot still needs to be done to solve the unemployment crisis in South Africa. We may have different views on a lot of issues, but we have the same interests. For South Africa to work, we need a highly trained, a highly productive, and a highly paid workforce.”
In a statement, Minister of Employment and Labour Thulas Nxesi said the agreement was “a pinnacle in the history of social dialogue and employment equity”, not only in this country, but also globally, where the government and the trade union, which have opposing policy views, were able to reach an amicable settlement.
Nxesi said the EEA and other labour laws do not require employers to dismiss or terminate the employment of any employees, irrespective of their race, to make space for the implementation of the EEA amendments and employment equity targets in their workplace.
The latest amendments to the EEA, which were signed into law by President Cyril Ramaphosa in April, empower the minister to set racial targets for 18 sectors across four different skill levels. Under the new laws, designated employers – all businesses that employ more than 50 people – have five years to ensure their workforces represent racial and gender demographics on a provincial or national level. Companies seeking to do business with the government will need a certificate of compliance from the department.
Some key points of the agreement
The agreement states that affirmative action shall be applied “in a nuanced way”, and the economically active population statistics will be only one of many factors that will be considered when assessing an employer’s compliance.
The justifiable or reasonable grounds for not complying with the employment equity targets set by the employer or “any other targets set by any other party” may include:
- Insufficient recruitment opportunities;
- Insufficient promotion opportunities;
- Insufficient target individuals from the designated groups with the relevant qualification, skills and experience;
- Awards by the Commission for Conciliation, Mediation and Arbitration (CCMA) or court orders;
- Transfer of business;
- Mergers or acquisitions; and
- Impact on business or economic circumstances.
An employer may not be penalised or incur “any form of disadvantage” if it does not comply with the targets on justifiable or reasonable grounds.
The following criteria must be considered when preparing and implementing an employment equity plan and assessing affirmative action compliance in the workplace:
- The inherent requirements of the job;
- The pool of suitably qualified persons;
- Qualifications, skills, experience and the capacity to acquire, within a reasonable timeframe, the ability to do the job;
- The rate of turn-over and natural attrition within a workplace; and
- Recruitment and promotional trends within a workplace.
Click here to download the full agreement.
Complaint to the ILO
The agreement is the result of a nine-month mediation process between Solidarity and the government under the supervision of the International Labour Organization (ILO), an agency of the United Nations (UN).
Solidarity filed a complaint with the ILO in 2021 about the government’s rigid application of affirmative action. Solidarity argued the government was violating ILO convention 111, which, among other things, stipulates that affirmative action measures must be flexible.
The ILO recommended that the CCMA facilitate the resolution of the dispute.
Nxesi said the agreement was critical to “demystify and discredit the negative perceptions created maliciously in the media” on the current EEA amendments and affirmative action, including the EEA sector target regulations published for public comment.
In an article on its website, Solidarity said although the settlement was “an important breakthrough”, it was only “a strategic victory”. The trade union said that by the end of this year, it will submit more cases to the UN challenging the government’s “strict race-driven regulations”.
