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DoL: Mildred Oliphant, address by Minister of Labour, at the 2nd CCMA Shopstewards and Union officials Conference, Durban (27/09/2018)

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DoL: Mildred Oliphant, address by Minister of Labour, at the 2nd CCMA Shopstewards and Union officials Conference, Durban (27/09/2018)

Minister of Labour Mildred Oliphant

28th September 2018

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Programme Director
Chairperson of the CCMA
Councillor Mpume Sithole
National Director of the CCMA
Members of the Governing Body
Leadership of the Labour Movement
Officials of Government here, Present
Distinguished Guests
Ladies and Gentlemen
 
Good Day
 
I am very pleased that CCMA has pulled yet another gathering of Shopstewards and union officials to share knowledge and experiences on our labour laws in South Africa.  It is very important that our shopstewards as the front line in defending workers’ rights, that they understand, not just the basics of our labour laws, but also how to take full advantage of the inherent benefits.  I am a firm believer, that unless we understand the key features of our laws and what they seek to achieve, there is little chance that we can maximise the value for our members.
 
You know as much as I do that Labour laws are not static, but dynamic, almost like a moving target that keeps on shifting.
 
Those who are not friends to robust labour protection, do not sleep at night, but keep on plotting how to, in a smart way, side-step their legal obligations. They employ the services of the best labour consultants in the country to help them find a way not to comply with the law without being detected. They have also developed complex ways of how to interpret the law in the way that suits them.
 
Well, they can afford to do this, because they have the resources.  They are not shy to go all the way to the Constitutional Court, just to prove a point.  Some attempted to twist the interpretation of Section 198 that deals with the so-called labour broking. We know today, that they were disappointed that the highest Court of the land, disagreed with them and confirmed the exact meaning of what we mean by ending the exploitation of workers through what has become known as permanent casualization.  I hope this conference and the CCMA, will walk you through the real meaning of this recent Judgement and what it means for workers.
 
I was rather disappointed that workers did not celebrate this Judgement the way I would have expected.
 
Comrades, Friends, Ladies and Gentlemen, this Judgement is a major victory for workers in general and vulnerable workers in particular.  We need to take full advantage of what it means before your counterparts, as I pointed out earlier, find an elegant way around it. Remember, they have the resources to do so.  The trouble of course, is that we will have to approach the Constitutional Court if we believe that they are not living up to the Judgement, and that is very expensive and time consuming.  Therefore, taking steps right now, to ensure that you close every possible loophole in your collective agreements that may have provisions that are out of line with the Judgement, is very important.
 
I am saying this because I am aware of some collective agreements, where unions contract-out of the basic labour laws and settle for something way below the minimum thresholds.  I am also aware that reversing such arrangements are not easy when left for too long.  Therefore, the time to act is now.
 
Programme Director, you may have heard many saying our labour laws are up there, with the best in the world.
At the risk of sounding like I am bragging but based on my experience in the ILO and other United Nations Human rights bodies, the BRICS and the G20, I am convinced, that indeed our labour laws are on par with the International best practice.  You will also know that South Africa has ratified all the core Conventions of the ILO, and not only that, we have also put in place legislative instruments to give effect to these Conventions.  For us, it is not good enough to merely ratify a Convention, without at the same time, putting in place the legal framework to make it work.
 
Programme Director, some of you may wonder why the ANC government pursue labour-friendly labour laws, when other parties are complaining that our labour laws are not flexible?  You may also want to know, on what basis are some of the opposition parties and employers see our labour laws as being rigid?
 
Starting with why the ANC government pursue labour-friendly labour laws; Let’s recall that the ANC government draws its aspiration and guidance from Chapter 7 of the Freedom Charter, “There shall be work and security”, more specifically where it states that;
All who work shall be free to form trade unions, to elect their officers and to make agreements with their employers;
Workers shall draw full unemployment benefits;
Men and women of all races shall receive equal pay for equal work;
There shall be forty-hour week, a national minimum wage, paid annual leave and sick leave for all workers, and maternity leave on full pay for all working mothers;
Miners, domestic workers, farm workers and civil servants shall have the same rights as others who work;
 
Those who are familiar with our labour laws, will confirm that indeed, all these aspirations find expression in our policies, with the National Minimum Wage Bill being the very last one that was still outstanding.
 
You will also know, that the 2009 ANC Election Manifesto, called for a special focus on ensuring that occupational injuries and the unemployment benefits, extend the scope of cover and guarantee retirement, disability and survivor benefits in the case of occupational injuries and diseases. It also called on us to put in place regulations to prohibit all known abusive practices in labour broking.
 
The 2014 Manifesto on the other hand, called on us to investigate the modality for the introduction of a national minimum wage as one of the key mechanisms to reduce income inequality. Let me not say much about the National Minimum Wage dispensation which is on the verge of being signed into law, as a lot has already been said about this milestone achievement for the vulnerable workers in South Africa.
Let me rather underscore the point that this achievement, is the first ever national minimum wage in South Africa.  Whilst it is by no means a living wage, it remains a good foundation going forward.  Just imagine that over 6 million workers would have remained in wages way below the proposed minimum wage, if it was not for this pending policy intervention.
 
Those of you who have been following the labour laws amendment process, would also know that we introduced trade union enabling alignments to the Labour Relations Act, with a view to make it less difficult for the unions to do their work.
These include, but not limited to, redefining “DISMISSAL” in Section 186, the extension of the period within which the Minister must extend a collective agreement if the parties to the agreement are only sufficiently representative in Section 32(5)(c).  Section 32(2) which provides for improved representativeness requirements for the extension of collective agreements.
 
You will know that Section 32(2) of the Act required the trade union party to the agreement, to represent the majority of employees and in addition, that the members of the employer organisations party to the agreement, be required to employ the majority of employees within the scope of the agreement. The new provision only requires one or the other to meet this requirement.
 
I expected that workers will celebrate this achievement as it provides the much-needed relief given the endless problems of declining trade union representivity in the various Bargaining Councils.
 
Another important change relates to Sections 32(2)(c), (5)(a) and 49 of the Act, which provide that the representativeness of bargaining councils and their constituent parties, would henceforth be determined annually by the Registrar and not each and every time a bargaining council referred a collective agreement to the Minister for extension. These are some of the changes that will relieve the parties of the administrative burden of conducting membership verification every time they apply to the Minister for extension.
 
The ANC Manifesto also called on us to take steps to strengthen existing laws to ensure faster change in employment equity in all workplaces by enforcing an accelerated implementation of employment equity targets.  Let me remind all of us the purpose of the Employment Equity Act, as some of you may have forgotten its importance as a tool to transform our society. The Employment Equity is there to enable us to achieve reasonable progress towards eliminating unfair discrimination in the workplace, and to achieve equitable representation of employees from designated groups by means of affirmative action measures.
 
Before pointing out what government is doing to address poor compliance with the employment equity, let me raise two grave concerns that bother me a lot.  Firstly, I get the impression, when looking at the quality of employment equity plans that get submitted to the Department of labour annually, that workers seem to have abdicated their responsibility to scrutinise and sign-off on the plans before they are submitted. It cannot be correct that more and more companies continue to submit plans that are so weak, when workers on the shop-floor are checking both the quality and the genuineness of these plans.
 
Often companies fail to show evidence of Employment Equity Committee nominations and that worker representatives indeed, accepted the process followed to compile EE Plans.
 
At times, even evidence of the list of EE Committee members, minutes of its meetings and Committee’s Constitution with a code of conduct signed by all members, cannot be produced.  Unless workers assume meaningful responsibility, to ensure that employment equity work is not left to management and senior staff members with no contribution from workers, transforming the workplace will remain a pipe-dream. I urge you to play your role if we are to make this work.
 
The second concern relates to the recent report of the SA Human Rights Commission of its investigation on the constitutionality of Affirmative Action policy cum Employment Equity. I have observed that the Commission has concluded that both the country’s Affirmative Action Policy and the Employment Equity Act, were unconstitutional and not in sync with International Conventions. The report makes various recommendations on what needs to be done, including a recommendation to amend the Employment Equity Act. The Commission gives government six months to report back on steps taken to give effect to its recommendations.
 
Clearly, this means that besides the general poor compliance with the Employment Equity, we are now faced with a new challenge of a Chapter 9 institution casting doubts on the constitutionality of this law.  However, I am confident that since all our laws are subjected to the Constitutional Master before they are signed into law, the conclusions of the Commission will be deemed baseless.
 
Turning back to what the ANC government is doing to strengthen the employment equity.  The process to promulgate Section 53 which will introduce a compliance with the Employment Equity as a conditionality to do business with government and its entities, has been published for public comment.
 
This will follow the same lines as the Letter of good standing in the case of the Compensation Fund and Tax Clearance certificate with respect to SARS.  We are convinced that in addition to other measures, which include slightly more severe fines for non-compliance, we will begin to see a change in compliance patterns.
 
Programme Director, I am raising these few highlights merely to illustrate that our labour policies, come a long way.
 
The biggest challenge is keeping compliance and enforcement at desirable levels.  The truth of the matter is that we do not have sufficient Labour Inspectors in the Department, due to government austerity measures.  We haven’t given up knocking on the Treasury’s door for more resources, so that we can at least employ more Inspectors.  It will also help, if organised labour and shop-stewards could partner with us as we try to do more with little.
 
It will, for example, go a long way if shop-stewards could bring to our attention, workplaces where compliance is suspect, so that we can deploy our inspectors in a much more targeted basis.
 
Programme Director let me underscore one or two pints that I raised at the recent Cosatu congress, as food for thought as we prepare our strategies on how to extract maximum value out of our set of labour laws.
 
It is a fact that Labour movements across the world, are, just like policy makers, grappling with challenges of scale, never seen before. This conference brings together people who are significant players in the international space, either directly or through their elected representatives.
 
For that reason, I assume that we are very much familiar with the global challenges that we all face.  We are all familiar with the new forms of work some of which are off-shoots of dominant mega-drivers of global change.
 
The internet of things, mechanisation of production methods, artificial intelligence and the list goes on.  We know that the complexities that accompany these key drivers, made it necessary for the ILO to establish a Global Commission on the Future of work, led by eminent persons which include our very own, His Excellency President Ramaphosa.  The Commission is investigating every facet of the fourth industrial revolution, the challenges and opportunities that it may bring.
 
Whilst the scale of casualties cannot be quantified, likewise the opportunities that it will bring, are not known at this stage, it is better to prepare for all possible scenarios.  I hope that this Conference will deal with these challenges.
 
The recent announcements by many companies of possible job losses in various sectors, is a course for grave concern for all of us.  To what extent are these job losses as a result of new technology and the uncertainty of the future of work, requires much deeper understanding of the forces at play.  We also need to understand the policy choices at our disposal some of which may be painful.
 
Another point that I raised last week, flows from the fact that when we craft labour market policies, we always strive to find the delicate balance between providing protection to workers without stifling economic activity.  The fact that in every bargaining council agreement, there is a provision for exemptions, speaks volumes about how much we care about not chocking the economy.
 
The fact that we use the Basic Conditions of Employment Act earnings threshold, which on all accounts is fairly reasonable from the cost of labour point of view, to determine the applicability of some of our laws, is again a testimony that we care about the flexibility of our labour laws.  Last, but not least, the extent to which we go out of our way, even at the risk of workers protesting, to provide Small Businesses and start-ups some flexibility, in some instances, even giving them a two-year grace period before, they are expected to observe certain provisions of our labour laws, is instructive.  
 
Therefore, those who continue to accuse our labour market of being over-regulated, are actually those who are by their nature, against the protection of workers.
 
To conclude, let me once again express my deepest appreciation to the CCMA leadership, led by the Mr Ledwaba and Mr Morajana and the Governing Body, for putting this together.  I truly believe that it is these kinds of initiatives that will empower our people so that they can begin to fulfil their rights and obligations more effectively.  Those who know better say, “Knowing your rights and responsibilities in the Labour Laws, is the first step towards ensuring that everyone benefits fully.”
 
I wish you all the best in your deliberations in this conference.  I am also very pleased that it has since become an annual event.
 
I THANK YOU
 

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