Department of Labour response to Committee oversight visits

Meeting report

Department of Labour updated briefing following Committee's oversight visit to Mpumalanga

Mr Sam Morotoba, Acting Director-General, Department of Labour, noted that the presentation on the Annual Report of the Department of Labour (DOL or the Department) had been delayed; the report had been prepared but was undergoing verification.

Ms Dolly Chiloane, Chief Director: Provincial Operations, Mpumalanga, discussed the progress towards compliance with labour laws made on each of the farms visited by the Committee during a recent oversight visits. These three farms were involved in the harvesting and packaging of citrus fruit; namely Inyoni Boerdery, Tomahawk and Nhlumi in Malelane district in Mpumalanga. All the farms had been found to be in violation of the Occupational Health and Safety Act and its regulations, for which the Department had issued contravention notices against the relevant employers. The Occupational Health and Safety Act (OHSA) gave the employers 60 days to appeal the notices or to comply with the notices, and as the period had not yet elapsed the Department could not yet refer these violations to a court. Prohibition notices had also been issued to all the farms to prevent them from operating machinery that posed a potential danger to employees.

A number of policy interventions that the Department already had in place were outlined. Firstly, there was a sectoral determination for workers in the agricultural sector that set minimum wages and basic conditions of employment. The Department had also formulated a Protocol on Farm Access, in response to the high incidence of violent crimes on farms. In addition, the Department had formed positive relationships with various stakeholders including trade unions and different organisations representing employers in the agricultural sector.

Mr Morotoba presented the Department’s planned interventions. He said that the issue of housing for agricultural workers was a priority for the Department in this sector. The Department intended to convene a joint session with the Departments of Human Settlements, Agriculture and Fisheries, Basic Education and also involving Members of this Portfolio Committee, to address the issue. Another intervention was in the area of assisting farmers and farmworkers to influence the prices of fresh produce by liaising with the Departments of Agriculture, Trade and Industry and Small Business Development . The Department was planning to carry out random blitz operations jointly with other departments to deal with the issue of undocumented foreign workers. Finally, the Department intended to carry out a number of advocacy and educational interventions including educating farmworkers and farmers on the Basic Conditions of Employment Act (BCEA) and the sectoral determinations made under it. The Department also anticipated increasing funding to civil society organisations to allow them to extend their services to workers in the agricultural sector. In addition to these interventions, the Department planned to hold information sessions to educate workers on occupational health safety issues. 

Ms Chiloane stated that the Department had tracked down the workers who had been dismissed from Inyoni Boerdery farm for talking to Portfolio Committee members on the oversight visit. The Department had assisted these workers in taking their cases to the Commission for Conciliation, Mediation and Arbitration (CCMA) and they had successfully obtained compensation.

Discussion

Mr M Bagraim (DA) asked about the assistance with the CCMA that the Department had provided to the workers who had been fired for talking to the Portfolio Committee. He found this aspect disconcerting and asked whether this was the Department’s proper role.

Ms Chiloane replied that the Department has a working relationship with the CCMA. The Department did not actually take over the matter from the CCMA. The first point of entry to the CCMA, especially for vulnerable workers, was the Department, and to this end the Department would give CCMA forms to people who approached it for assistance. After the forms had been filled out and submitted back, the Department would then  refer the cases to the CCMA. With these particular cases, the Department had done a follow up on the outcome of the case.

Mr Bagraim asked how employers were meant to respond to the problem of undocumented workers.

Mr Morotoba stated that employers have a duty to check that a worker has correct identification documents when they are employed. It would, because of this obligation, be possible to detect that a potential employee was undocumented, provided that a thorough screening was done at this point.

Ms S Van Schalkwyk (ANC) welcomed the Department’s report. She said that she was concerned about the presentation’s focus on occupational health safety contraventions only, for when the Committee had carried out its visit, it had discovered other issues, such as the manner of remuneration of farmworkers. The Committee had expected the Department to ensure that farm employees were being remunerated in line with the sectoral determination. Also, the report presented gave no clear timeframes of action on the Department’s planned interventions, yet most of the issues identified required urgent intervention. She mentioned the workers who had been dismissed for cooperating with the Committee despite the Committee having assured the workers that they would be safe from victimisation. She suggested that the Department should play its role in terms of advocacy by informing employers of their responsibilities to workers, telling workers about their rights and also informing both parties about the consequences of not complying with labour laws. She expressed concern about the fact that the remaining oversight visits by the Committee had been scheduled for November, yet the nature of the contraventions on the farms already visited showed that there were problems that had to be solved urgently.

Ms Chiloane replied that the Department had focused, in this presentation, on its efforts around the identified contraventions of the OHSA because even before the Committee’s oversight visit it had conducted some inspections on this matter and found that intervention was necessary. At inspection time, employers were often found to be in compliance with the BCEA, particularly with the sectoral determination on farmworkers.

Mr Morotoba acknowledged that many of the Department’s planned interventions had no time frame but that some activities such as advocacy sessions were scheduled. Other areas such as  the housing issue in the agricultural sector were still in the early stages of being planned.

Ms Fikiswa Mncanca, Acting Chief Director: Inspections and Enforcement, Department of Labour, stated that the dates had been set for the advocacy sessions were as follows. From 10  to12 November 2015 there would be meetings around hazardous biological agents in Kwazulu Natal, and from January to March 2016 Operation Fiela would be carried out, with blitz inspections on farming and other problematic sectors in Mpumalanga, followed by an education seminar.

Mr I Ollis (DA) stated that, as discussed during the oversight visit, the Committee had to schedule a meeting with the Department of Home Affairs for a briefing to deal with the matter of undocumented foreign workers. Some of these workers had said that they had previously had work permits, which had expired and had not been renewed despite their efforts. He estimated that 10% of the workers were in this position and urged the Department of Labour to engage with the Department of Home Affairs on this issue in order to avoid a situation where such workers would be fired. The Committee had had a problem with an unidentified individual who joined the delegation on the outreach visit. Mr Ollis asked that people accompanying official members of such delegations in the future should be identified and introduced to other members of the delegation.

Mr Morotoba responded that there had been a Special Dispensation Visa programme, which had now expired, for workers from Mozambique, Zimbabwe, Lesotho and Swaziland, but the Department of Home Affairs was better placed to give more detail on this matter. There were difficulties around people with refugee status, as it was not clear whether they could legally be employed.

Ms F Loliwe (ANC) also welcomed the report. She stated that Mr Ollis should have mentioned the unidentified person incident at the time it occurred so that it could have been resolved then.

Ms Chiloane stated that she was unaware of whom the unknown person described by Mr Ollis was. She had been told that the person had introduced himself as a Member of Parliament and had assumed that he was with the delegation from the Committee on the day of the visit.

Mr Jacob Khoza, Regional Manager: Nelspruit,  Department of Labour, said the unknown person was known to him as James, ‘from the trade union.’

Ms Loliwe stated that she was amazed to be given this information because it appeared that the officials from the Department had been aware that James had lied about being a member of Parliament.

The Chairperson stated that the Committee would need more information on this point.

Mr Morotoba stated that the Department would furnish the Committee with a report on this issue.
Ms Loliwe asked for an update on the status of measures to engage immigration officials on the problem of undocumented foreign workers on farms. The Committee was aware that approximately a quarter of farmworkers were undocumented foreign nationals. She raised the issue that was disclosed to the Committee at one of the farms visited, namely that employers were given a book with permits that workers could sign for, and asked if this was lawful. She had expected the Department’s report to speak to this. In relation to the Protocol on Access to Farms, she noted that Committee members had faced difficulties in accessing some of the farms for the oversight visit so wondered at what stage this Protocol was. She asked whether the Department had proof that the workers dismissed after the Committee’s oversight visit had been dismissed because they had spoken to Committee members.

Mr Morotoba replied that there was a need to publicise the Protocol on Access to Farms. Lack of knowledge of the Protocol may have been the reason for the difficulties faced by the Committee in accessing the farms in question. The Department stated that it would take up this matter with AgriSA.

Mr Virgil Seafield, Deputy Director-General: Labour Policy and Industrial Relations, Department of Labour, stated that the Protocol on Access to Farms had been formulated in consultation with agricultural unions and employers’ organisations. On the matter of the fund to strengthen civil society, he stated that the Department had a fund to assist trade unions and civil society organisations that helped vulnerable workers who may not have access to unions, and the bulk of these funds would go to Ditela.

Mr D America (DA) stated that it was necessary to establish a causal link between the Committee’s visit and the dismissal of the workers. He pointed out that the CCMA had issued an order for compensation in lieu of reinstatement. Furthermore, the fact that the judgment had been a default judgment meant that it had been based on the workers’ unchallenged version of events. These factors showed that there might have been other reasons for the dismissal of the workers in question.

Mr America noted that the report stated that stakeholder forums had been conducted and listed a number of stakeholder interactions, but he wanted to know who were these stakeholders. He asked whether the Department followed up with employers before the 60 day period of the contravention notices expired to assist them with achieving compliance. There must be a balance between employers’ interests and employees’ interests and he asked how both parties could be assisted to enjoy the benefits of labour laws.

Ms Chiloane replied that the CCMA’s award stated that the employees indicated that they had been dismissed after being questioned by management about speaking with Committee members during the oversight visit. The workers had initially sought reinstatement but the Commissioner had ordered compensation, despite recognising that the dismissal was grossly unfair. The CCMA could provide further details on whether the employees were happy with obtaining four months’ compensation instead of reinstatement.

The Chairperson stated that the Committee had the right to summon the Commissioner of the CCMA who had made the award, to explain why four months salary had been awarded instead of reinstatement.

Mr Seafield stated that these workers would have the option to apply for review or an appeal to the Labour Court, if dissatisfied with the outcome before the CCMA.

Mr America stated that it was correct that CCMA awards had to be challenged in the Labour Court by dissatisfied parties, but in this particular case the rationality of the Commissioner’s decision was highly questionable, especially in light of the fact that the workers had asked for reinstatement initially.

Ms Loliwe expressed the view that the CCMA decision was improper and called for the intervention of Parliament’s legal section. If people were being victimised for cooperating with Portfolio Committees, this meant that the oversight role of committees would be hampered.

Mr Bagraim asked that a written copy of the CCMA award should be distributed to the Committee to enable Members to know the precise contents of the award.

The Chairperson asked for the Department to tell the Committee of the exact dates when the contravention notices had been given, and on which dates each and every farm had been visited, to check whether the content of the contravention notices was being adhered to.

Ms Chiloane responded that the employers had 60 days in which to comply (or appeal) with the contravention notices. On 6 October 2015, the Department’s inspectors from Malelane Labour Centre had gone to Inyoni Boerdery, on a monitoring and advisory basis. These inspectors had found that some of the issues in the contravention notice were being addressed; for instance the issue around the training of forklift drivers and the provision of respiratory equipment to employees who worked with chemicals. Nhlumi Farm had been visited on the 7th of October 2015.  Up to that point the only issue addressed was the training of workers to use certain farm machinery; hence the prohibition notice that had been issued in this respect was revoked. All other issues identified in the contravention notice were yet to be addressed. The Department had not visited Tomahawk Farm after issuing the contravention notice.

Mr Hilton Ganesen, Deputy-Director: Occupational Health and Safety, Department of Labour, stated that the prohibition notice that had been revoked was only in relation to some machinery on Nhlumi Farm

The Chairperson asked whether the inspectors had spoken solely with employers on visits described above, or whether they had also spoken with workers to verify the authenticity of the employers’ statements. Some workers had complained, during the Committee’s oversight visit, that officials from the Department would only speak to employers and not directly with workers. There was no proof that any steps had been taken towards compliance with the contravention notices. The Department had been warned by the Committee in the past to be truthful. She expressed concern about the Department’s lack of specific detail on the farms’ compliance and questioned the effectiveness of the Department’s reporting mechanisms. The report ought to have stated what follow ups were being made to check the employers’ progress towards compliance even before the 60 days elapsed. Lives were at stake and so the Department should have been more diligent in carrying out follow-ups. The Committee was not interested in knowing what the employers were saying they were doing to ensure compliance, but was interested in ascertaining that the concerns had indeed been addressed — especially those around workers’ protection. The Committee wanted to know that anything specifically covered in the Department’s mandate, such as implementation of the BCEA and OHSA, had been dealt with fully after the oversight visit.

Mr Khoza confirmed that follow up visits had been carried out as stated by Ms Chiloane above.

The Chairperson asked whether the workers would confirm this, if asked by the Committee.

Mr Morotoba stated that the Department took the concerns raised by the Chairperson very seriously and took full responsibility for all the issues that had emerged from the Chairperson’s line of questioning.

The Chairperson stated that information should not only be gathered in response to the Committee exercising its oversight function. She asked what the Department’s management and employees were doing in the Department on a daily basis, and what they were reporting on.

Ms Van Schalkwyk stated that the Department had embarked on it own oversight visits after the Committee had written to the district to notify it of the Committee's planned visit, and asked that the Department should not do so in the future.

The Chairperson thanked the Department for the presentation and hoped that the Department would take the concerns of the Committee to heart to assist it in working better.