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A “ground-breaking” settlement reached yesterday between Employment & Labour Minister Thulas Nxesi and trade union Solidarity states that “affirmative action shall be applied in a nuanced way… and the economically active population (EAP) statistics will only be one of the many factors that will be taken into account in the compliance analysis of affirmative action in any workplace”.

The agreement goes on to list the set of factors that “must” also be taken into account:

• the inherent requirements of the job;
• the pool of suitably qualified persons;
• qualifications, skills, experience and the capacity to acquire, within a reasonable time, the ability to do the job;
• the rate of turnover and natural attrition within a workplace; and
• recruitment and promotional trends within a workplace.

It also expressly states that “no penalties or any form of disadvantage” can be incurred by an employer if it has a justifiable or reasonable ground for non-compliance. These grounds include “insufficient target individuals from the designated groups with the relevant qualification, skills and experience” and “insufficient promotion opportunities”, amongst others.

The agreement comes after Solidarity lodged a complaint in 2021 with the International Labour Organisation (ILO) against the South African Government’s racial employment equity policies. “South Africa’s racial policy again classifies people according to race, that it is of permanent nature and that does not lead to redress of disadvantage”. The CCMA facilitated the ILO conciliation process between the Government and Solidarity.

In a statement yesterday, Solidarity heralded the agreement as “the end of using race as sole criterion for employment and promotion”, but cautioned that it is “not the end of racial programmes in South Africa”.

It is gratifying to note that the agreement will be included in the amended Draft Employment Equity Regulations - thus dispensing with de facto racial quotas, which would have used EAPs as the sole criterion to determine an employer’s compliance with equity targets.

The draft Regulations - along with the empowering Act and the practice of demographic representivity - constitute one of the most serious threats to our constitutional order since 1994: they are irreconcilable with the foundational values of non-racialism, equality, human dignity and the rule of law upon which the entire constitutional order depends.

The agreement illustrates, once again, the effectiveness of non-governmental organisations that make use of the Constitution and the law in stopping unconstitutional - and potentially ruinous - policies. Congratulations to Solidarity for its significant achievement!

By promoting a system that values personal achievement and endeavours to eradicate unfair discrimination, we can achieve broad representivity in the economy much more quickly and effectively than through the imposition of new forms of unfair racial discrimination.

Issued by FW De Klerk Foundation