Trade union Solidarity on Wednesday said in a statement it urgently wanted to draw employer’s attention to the court order issued on October 31 in the Labour Court as regards a settlement agreement on racial policies reached earlier this year.
Solidarity CEO Dr Dirk Hermann said the agreement followed Solidarity’s complaint they lodged with the International Labour Organisation (ILO), an agency of the United Nations (UN) against the government’s rigid racial approach.
A mediation process between Solidarity and the South African government followed under supervision of the ILO, which led to this agreement.
The settlement was signed by Solidarity and the Minister of Employment and Labour Thulas Nxesi as well as his deputy, Boitumelo Moloi.
The court order stipulated, among other things, that the terms of the agreement must be published as regulations in the Government Gazette and the government supported this court order.
The agreement and court order further stated that no one might be fired or laid off based on their race or any racial plans.
It also stipulated, amongst other things, for racial policies to be temporary, for race not to be the only factor when drafting plans and that the pool of available skills and the companies’ unique circumstances must be taken into account. The agreement also determined in what circumstances a company could motivate non-compliance.
No penalties or any form of disadvantage would be incurred by the employer if the compliance analysis of affirmative action in any workplace, there are justifiable/ reasonable grounds for not complying with the targets.
“Please note, rigid racial targets are therefore not legal,” Hermann said.
He said the government’s racial regulations published earlier this year were never accepted and in their current format did not pass the test of the new agreement.
Hermann said it was of critical importance to adjust all racial policies and plans based on this court order and agreement, and to ensure that it complied to both. It gave clear instructions on how racial laws should be implemented.
“Many uncertainties have now been clarified. The government is now obliged to publish this agreement in the Government Gazette. If the court order is not complied with, the government, President and Minister of Employment and Labour can be charged with contempt of court. These parties all supported the agreement,” he said.
On May 12 the Minister of Employment and Labour published a notice identifying proposed national economic sectors and employment equity numerical targets under the Employment Equity Act.
President Cyril Ramaphosa signed the Employment Equity Amendment Bill in April.
The bill sought to progress the transformation of South Africa’s workforce by “setting equity targets for economic sectors and geographical regions and requiring enterprises to develop transformation plans” with new measures to promote workplace diversity and equality.
Business Report reported at that time Business Unity CEO Cas Coovadia as having said in a statement that while the signing of the bill into law ended a long period of uncertainty on the proposed changes and impact of South African transformation laws, it had several concerns.
“Busa welcomes the step, which is in line with the position the organisation had adopted throughout the bill process from Nedlac to Parliament. Most importantly, Busa is pleased that employment equity targets for sectors will be set by the Minister of Employment and Labour only after consultation with the relevant business and employer bodies in the affected sectors,” he said.
However, Coovadia said some aspects of the law remained problematic as the organisation had raised in Parliament during the public hearings process in 2021 and 2022.
For example, measuring compliance and issuing compliance certificates as a licence to do business with the state would depend on whether a company has met its targets and did not have a case of unfair discrimination raised against it at the CCMA or Labour Court in the previous 12 months.
“What concerns us is treating targets as quotas, which would be against the spirit and letter of the law anyway,” said Coovadia.
He added that “companies should not be subjected to double punishment by the CCMA or Labour Court and the Department of Employment and Labour for the same issue, which could lead to unnecessary litigation and derail our objective of transformed workplaces.”