Much has already been said about the impact that majoritarianism has had on minority unions and the subsequent Marikana “consequences”. However, in this article we consider the effect thereof, especially on minority groups during employment equity negotiations.

In terms of section 16 of the Employment Equity Act (No. 55 of 1998)  an employer is required to consult with the following parties regarding, among others, the preparation and implementation of an employment equity plan:

–  recognised trade union;

– if there is no such union, then a representative nominated by the employees;

– a workplace forum if one has been established in terms of section 86 of the LRA.

This section further requires that “taken as a whole”, the group with whom the employer consults  must reflect the interests of:

• Employees from the designated groups (African, Coloured, Indian, women and people with disabilities);
• Employees who are not from the designated group (white men);
• Employees from across all occupational categories and levels of the employer’s workforce.

Section 20 of the Act requires that an employment equity plan must, among other things, set out the numerical gaols which an employer wishes to achieve within each occupational level within a specific period, which may not be shorter than one year or longer than five years.

Closed shop and/or agency shop agreements have the effect that many employers only consult with the majority and recognised trade unions regarding the preparation and implementation of their employment equity plans. Most of these agreements do not reflect the interests of minority groups and/or the non-designated groups. Evidence of this becomes clear from cases against the Department of Correctional Services and the South African Police Service where the only factor taken into consideration in setting numerical goals were the national racial demographics.

Some of the recognised unions have gone so far as to defend these plans in court against the interest of employees who were their members.

From a unionist viewpoint, the principle holds that a union receives its  mandate from the majority of its members. When employers therefore consult only with the recognised unions, these unions do not represent the interests of the non-designated group and/or the minority groups; therefore these plans are implemented without any input from these groups.

Non-designated groups and/or minority groups should have the opportunity to be properly represented during these negotiations, and simply arguing that these members could elect a representative from within their midst will not suffice. The reason for the aforementioned is that such an individual will never be on a level playing field with representatives who have the legal backing of a trade union with the knowledge and know-how of negotiation processes and the law.

I think the stage has been set for a legal challenge to the above practice, especially in light of the fact that a legitimate argument can be made out that the unions with whom the employers are consulting clearly do not have the best interests of non-designated employees and/or minority groups at heart.

Author: Dirk Groenewald