Major breakthrough in mediation between Solidarity and SA government
Wednesday | 28 June | 2023
No one’s employment may be terminated in any way as a result of companies’ racial programmes; race may not be used as the sole criterion; skills must be taken into account; and affirmative action must be temporary in nature – these are some of the points in the outcome of a nine-month mediation process between Solidarity and the South African government under the supervision of the United Nations’ International Labour Organisation (ILO)
The outcome of the process takes the shape of a settlement that was secured in the form of an agreement between Solidarity and the government which was signed by Solidarity Chairperson Flip Buys and Minister TW Nxesi, the Minister of Labour and Employment.
The agreement will now be gazetted as part of the 2023 Employment Equity regulations and the parties have agreed that it will be made a court order. Companies will therefore be obliged to implement it.
Further points in the agreement stipulate that no absolute barriers may be set for the employment or promotion of any group, and the inherent requirements of a position may be taken into account in making appointments or promotions.
Companies can also cite their economic position, staff turnover and skills shortages as defence as to why they are not complying with targets. If a company has a reasonable defence as to why it does not meet its targets, such company will not be fined or forfeit government contracts.
The mediation process started after Solidarity had filed a complaint with the ILO against the government for the rigid application of affirmative action in South Africa. Solidarity argued that South Africa was violating ILO Convention 111 which, among other things, stipulates that affirmative action measures must be flexible.
At the time, the ILO declared Solidarity’s complaint admissible. This meant that the complaint met all the ILO’s requirements, had merit at face value, and that Solidarity had exhausted all internal remedies. Solidarity’s complaint thus proceeded into hearing proceedings and the first step involved voluntary mediation between the parties.
The tension between the community and the government heightened after the government recently published race regulations that could have far-reaching consequences for minorities. In reaction, 29 organisations signed a joint resolution which increased the pressure on the government. The agreement that has since been reached was certainly influenced by the power of a community that stands together.
This agreement means the end of using race as sole criterion for employment and promotion. It also removes the sword of retrenchment that has been hanging over the head of minorities and it means that companies would no longer be forced to make appointments that do not meet their specific skills needs.
This is how the ILO dispute over flexibility was resolved. However, this is not the end of racial programmes in South Africa. This is an important breakthrough and a major victory on the strategic battlefield, but the war is not over yet. A battle that still lies ahead for the sake of everyone in South Africa is to free Eskom of black economic empowerment rules that have become a smoke screen for looting.
Statement issued by Solidarity, 28 June 2023
