Employment & labour minister Thulas Nxesi has hailed a settlement agreement on employment equity as “groundbreaking”, saying it demonstrates the role social dialogue can fulfil in promoting social justice.
The agreement stems from a complaint trade union Solidarity lodged in 2021 with the International Labour Organisation (ILO), a UN agency that deals with social justice and sets international labour standards. The union complained that the country’s employment equity legislation put too much emphasis on race to determine who should be “hired, fired or promoted”.
The ILO recommended that the Commission for Conciliation, Mediation and Arbitration (CCMA), the country’s dispute resolution body, facilitate the dispute between the government and Solidarity.
Solidarity chair Flip Buys told Business Day after parties signed the agreement in Pretoria on Wednesday: “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.”
Buys said it was a step in the right direction, but “a lot still needs to be done to solve the unemployment crisis in SA. We may have different views on a lot of issues, but we have the same interests. For SA to work we need a highly trained, a highly productive and a highly paid workforce.”
The agreement comes after the DA, SA’s second-largest political party, approached the courts earlier this month for a declaration that various sections of the Employment Equity Amendment Act are unconstitutional and invalid. If it succeeds, the regulations issued under the act will also be invalid.
The DA’s opposition was supported by Solidarity and about 30 other political parties and civic organisations.
The legislation allows Nxesi to set employment equity targets for specific economic sectors and to prescribe demographic targets for employers with more than 50 employees. Companies seeking to do business with the government will need a certificate of compliance from the department. In setting the targets, the minister must consult with the relevant sector stakeholders and take advice from the Commission for Employment Equity.
Regarding the DA’s court application that Solidarity supported, Buys said: “The court matter is considered settled. This agreement is going to be made an order of the court.”
The agreement reads, in part, that affirmative action shall be applied in a “nuanced way ... and the economically active population statistics will only be one of many factors that will be taken into account in the compliance analysis of affirmative action in any workplace”.
It also states that no absolute barrier may be placed on any employment practices affecting any persons from any group, and “no employment termination of any kind may be affected as a consequence of affirmative action”.
Nxesi said: “The signing of the settlement agreement with Solidarity is the high point in our history of social dialogue and employment equity. It’s important to highlight that Solidarity has been very critical of how employment equity and affirmative action is implemented since the inception of the Employment Equity Act of 1998.”
The minister said a number of Solidarity’s court cases on the matter contributed to the case law on employment equity and affirmative action in SA, “therefore, this is a ground-breaking settlement agreement that carries material benefits at various strategic levels. SA is the first ILO member state to demonstrate the significant role that social dialogue can fulfil in the promotion of social justice.”
Employment & labour chief director for labour relations Thembinkosi Mkalipi said the agreement means that when implementing the legislation, “employees must not be dismissed to create a space for one race over the other. It also says when a company has got justifiable reasons for not meeting employment equity targets, it should not be prosecuted”.
Nxesi said the settlement agreement “is critical in clarifying, demystifying and discrediting the malicious narrative created in the media on the current Employment Equity Amendment Act”.
He said it reaffirms the country’s belief that “despite our differences, when people engage each other in good faith, through social dialogue, no problem is insurmountable”.
CCMA director Cameron Morajane said the signing of the deal was a historic moment for the commission.
“SA, all of us, we are in a boat, it’s not the Titanic, but it’s a boat. In this boat, we have one destination in terms of the Employment Equity Act, and that destination is equity. All of us [as parties] agreed on one important principle: no-one must drill a hole in the boat because we will all sink.”
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