Solidarity challenges Woolworths to test its affirmative action policy in Labour Court

Solidarity today challenged Woolworths in a letter to defend its policy of absolute representivity based on the country's racial demographics in the Labour Court. The trade union proposed that Woolworths and Solidarity approach the court jointly in order to obtain a ruling on whether or not Woolworths's controversial advertising policy complies with the Employment Equity Act.

According to Solidarity, the practice of applying the country's racial demographics in an absolute manner when filling vacancies started in the public service and apparently spilled over to the private sector, becoming the norm and part of company's policies.

Dirk Hermann, Deputy Chief Executive of Solidarity, said it is clear that Woolworths believes that the entire labour force of the private sector must be an exact reflection of the demographic composition of the economically active population. "The legal basis for this argument is unclear. It seems that large private companies are simply following the state's example regarding the implementation of affirmative action by starting to implement quota policies regarding vacancies.

The Employment Equity Act does not provide for the exclusion of any race where applications are concerned. These advertisements come down to an absolute quota, which the Act intentionally prohibits. We are of the opinion that this racial approach has no legal or moral foundation and amounts to an immoral and impractical approach to the implementation of affirmative action."

Hermann challenged Woolworths Chief Executive Ian Moir to join him, in his capacity as Deputy General Secretary of Solidarity, in bringing a case concerning the issue of racial representivity before the Labour Court. "In so doing, both parties will get an opportunity to state their case as far as representivity is concerned and to request the Labour Court to issue a declaratory order regarding the matter."

Should Woolworths comply with the request, according to Hermann, legal representatives of both parties can meet as soon as possible to finalise such a case and to agree on a procedure. Hermann said that in such a case, each party would be responsible for its own legal costs and an order as to costs would not be applied for against any of the parties.

"Woolworths and Solidarity would do everyone in South Africa a favour if they managed to obtain legal certainty regarding the application of affirmative action."

Yesterday Solidarity launched a major public campaign against Woolworths, after the group had refused to withdraw advertisements for vacancies that only black candidates could apply for.

The letter to Woolworths is attached.

Text of letter from Dirk Hermann, Deputy General Secretary: Solidarity, to Mark van Buuren, National Employee Relations Manager, Woolworths, September 6 2012:

 6 September 2012

URGENT

Mr. Mark van Buuren

National Employee Relations Manager

Woolworths

Fax: (021) 407 9850/ 011 788 8110

E -mail: [email protected]

Dear Sir,

PROPOSAL THAT A STATED CASE BE TAKEN TO THE LABOUR COURT ON THE ISSUE OF PROPORTIONAL REPRESENTATION AND RESERVATION OF POSITIONS FOR CERTAIN RACE GROUPS

We refer to the above matter and your letter dated 5 September 2012, received in response to my letter to Mr. Moir and yourself, sent on 4 September 2012.

I quote the following from my said letter:

"1. Woolworths' interpretation of the Employment Equity Act, as set out in the quoted section from its statement above, is both legally and morally wrong.

2. Contrary to Woolworths' application of affirmative action, the Employment Equity Act, in section 15 (3) thereof, states that affirmative action measures include preferential treatment and numerical goals, but excludes quotas.

3. The practice of Woolworths excluding candidates from certain races from applying for vacant position, is nothing else than quotas.This setting of an absolute barrier on the basis of race constitutes unfair discrimination.

4. We contend that this application of affirmative action is not sanctioned by the Employment Equity Act."

I furthermore quote the following passages from your said letter:

"2. As you are aware, the Employment Equity Act ("the EEA") places certain imperatives on employers to transform their workplaces. Within the context of the aims and the purpose of the EEA, the company has put in place an Employment Equity Plan and a Recruitment Policy.

3. There are certain areas of the company's business which, from a representivity point of view, do not meet the imperatives promoted in the EEA. It is within this context that the adverts to which you refer have been placed.

4. The company is of the view that its business should meet the requirements in the EEA and should be representative of the country within which we operate.

5. In the circumstances, we dispute that our interpretation of the EEA is incorrect or that it is morally wrong. We also dispute that the manner in which we approach recruitment enforces quotas."

It is clear that Woolworths' comments stem from the fundamental belief that the entire workforce of designated employers in the private sector should be an absolute reflection of the demographic profile of the economically active population of South Africa. The legal basis for this argument is unclear. This view has apparently become enshrined in policy and practice when it comes to appointments in the private sector.

It our considered view that the notion of representivity, as described in the previous paragraph, has no legal or moral foundation and as such falls to be dismissed as an immoral and impractical approach to the application of affirmative action.

It is clear that your interpretation radically differs from ours. We herewith suggest the following:

i) that Mr. Moir in his capacity as Chief Executive Officer of Woolworths (or yourself if mandated) and I in my capacity as Deputy General Secretary of Solidarity Trade Union agree to place a stated case regarding the issue of representivity before the Labour Court. The facts of the Woolworths practice of reserving posts for black people should form the basis of such a stated case. We will both state our cases regarding our different views on the issue of representivity and request the Labour Court for declaratory order on the question of post reservation and the issue of proportional representation in the private sector. This will be a big step forward towards ensuring that the legal uncertainty that currently exists around this issue is resolved;

ii) that, in the instance that Woolworths agree to this, the parties and their legal representatives meet as soon as possible with the aim of finalising such as stated case and agreeing on a procedure;

iii) that each party pays its own legal costs in the matter and that no cost order will be sought against any party during the Labour Court proceedings.

We trust that our proposal will meet this time your favourable consideration and we look forward to your answer in this regard as soon as possible.

Yours faithfully,

DIRK HERMANN

DEPUTY GENERAL SECRETARY: SOLIDARITY

Statement issued by Dirk Hermann, Deputy General Secretary: Solidarity, September 6 2012

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