Human Rights Day marks a significant day in the country’s calendar as it serves to remind South Africans of the enormous sacrifices that accompanied the struggle for the attainment of democracy and the establishment of a non-racial, non-sexist society where the civil liberties such as freedom of speech, religion, association and movement are upheld.
During the struggle for democracy the workplace became a terrain of struggle as the fight for workers’ rights became intricately interwoven with the struggle to overthrow the apartheid regime. This was born by the fact that prevailing labour regulations were exploitative and discriminatory along racial lines.
Twenty six years into democracy some great strides have been made and as we celebrate human rights day, it’s worthwhile to also take stock of the application of these human rights in the workplace and identify what still needs to be done to improve the human rights culture in places of work.
The latest Annual Trends Analysis Report (ATAR) report by the South African Human Rights Commission found that labour related human rights violations account for the second highest human rights violations received by the Commission, after equality. Most of these cases relate to unfair dismissals and other unfair labour practices; which speak to widespread discrimination in the workplace.
The report findings are based on statistics and data on human rights violations received by the Commission during 2015 to 2016 and compiled cases from all nine provinces.
Despite the promulgation of a series of laws that protect employees and entrench a culture of human rights, such as the Basic Conditions of Employment Act – which gives effect to the right to fair labour practices, the Employment Equity Act – the law that protects employees from unfair discrimination, and the Labour Relations Act – which governs and regulates all industrial action including strikes, lockouts and picketing, the human rights of many employees are still trampled upon.
These laws were meant to protect employees pre-1994 workplace practises where employers had a blank cheque and complete discretion over their employees. They could fire them willy-nilly, work them into exhaustion with little compensation, abuse them at will and in certain instances, even physically assault them.
A series of legislation such as Broad-Based Black Economic Empowerment (BBBEE) and affirmative action have been promulgated to provide preferential treatment to the majority of the population that was systematically excluded from economic opportunities. To a large extent some of these laws have achieved their objectives and others have not; and gaps remain.
Human rights challenges in the workplace
Among some of the challenges that remain in present day workplaces remains exclusionary practices in some workplaces, salary gaps bordering on gender and racial biases in some instances.
According to research conducted by Statistics South Africa (StatsSA), the South African labour market is still heavily racialised and gender biased. It highlights that in fact, the South African labour market is more favourable to men than it is to women and men are more likely to be in paid employment than women, regardless of their race. On average, female employees earn approximately 30% less than their male counterparts for the same roles.
It is critical that we reflect on our history and the motives that necessitated the emanation of the labour laws we have in place and apply these laws in order to change the status quo.
Critical to this argument is to equally recognise organisations comprise of people from different demographics. The big question remains, how do we ensure compliance with the prescripts of the law without making white counterparts to feel alienated and excluded? And this is something that the law cannot remedy. Companies need to find a way to strike a delicate balance between compliance with legislation and giving a leg up to people who were previously excluded, while ensuring that they win the hearts and minds of white and mainly male South Africans who feel that they no longer have a future in the company.
It’s important that no one should look at these laws and the regulatory framework as an anti-thesis of white aspirations over those of previously disadvantaged groups – mainly Africans (Black, Indian and Coloured people and women). Instead the two can co-exist. However, this is something that requires an organisational culture that is caring, inclusive and transparent; and in turn recognises the framework in which change must occur.
The enactment of the labour regulations was meant to shelter employees from wanton discrimination and wholesale abuse; and much of these issues have been addressed through legislation, however several outlier issues remain. These are issues that cannot be addressed through the regulatory framework, but issues of culture and inculcating these practices deliberately as part of an organisation’s culture remains one of the biggest challenges. At the moment, a number of corporations are still battling with the tick-box mentality; and until we can overcome that upholding human rights will never become part of a culture but will remain just another regulatory imperative. This in turn will continue to stifle creativity beyond the regulatory requirements to significantly improve the livelihoods of people and communities.
If there is no genuine buy-in workplaces will continue to battle with anecdotes of employees being dismissed without a fair hearing as is commonplace in certain workplaces. Some workers are still paid far below the minimum wage, and sexual and racial abuse in some instances remain rife; and unskilled and semi-skilled workers are the most vulnerable.
The gaps in human rights in the workplace
Freedom of religious affiliation is one of the cornerstones of our Bill of Rights. However, often when people talk about freedom of religion much of the focus is placed on the major religions such as Christianity, Islam, Hindu and Judaism.
Critical to our discussions on human rights, should be a diverse conversation around a holistic view on religion – a view that also acknowledges minority religions and indigenous practices and religions; as workplaces should be places where people feel that their religions and practices are respected and acknowledged – especially given that workplaces are a critical space where people spend most of their time.
We need to be flexible in the approach we take in resolving some of the challenges that remain in our workplaces and as we celebrate human rights, perhaps take a closer look at how we can uphold the core human rights values in our workspaces.
All stakeholders have a role to play, government, trade unions and the employer and employees alike. Putting up a poster that spells out what the Basic Conditions of Employment says will not suffice.
