BASIC CONDITIONS OF EMPLOYMENT BILL 1997
SUBMISSION ON WORKERS WITH DISABILITIES
CONTENTS Brief background
A new vision - Disability is about human rights and development
The Integrated National Disability Strategy
Discrimination in the Workplace
Accommodation of workers with disabilities in the Bill - General Overview
Proposed amendments
General recommendations
Conclusion
Brief background Disabled People South Africa (DPSA) is the internationally recognised national assembly of disabled people in South Africa. DPSA is an organisation of community based disabled people organisations with a present membership of approximately 15 000 people with different disabilities. People with disabilities control the organisation from local to provincial to national level. The disabled people organisations typically address issues affecting people with disabilities directly, e.g. discrimination, unemployment, poverty, education etc.
Economic empowerment has become the key issue within the organisation now that political liberation has been achieved.
A NEW VISION - DISABILITY IS ABOUT HUMAN RIGHTS AND DEVELOPMENT People with disabilities tend to be among the poorest of the poor in South Africa. This poverty is caused not only by lack of sustainable and sufficient financial income, but also from educational, social, political and economic exclusion in the communities we live in.
People with disabilities face major challenges in economic empowerment. Years of marginalisation, discrimination, disempowerment and exclusion from educational opportunities have left the majority of people with disabilities unskilled, dependent on the state and families and isolated from the mainstream of society. This isolation often reduces people with disabilities’ capacity and confidence to interact on an equal level with other people in society.
Yet even when people with disabilities have acquired education and skills, they still face the barriers caused by discriminatory and patronising attitudes, a user-unfriendly work environment etc.
The traditional health and welfare approach to disability has led to dependency that not only disempowers us as disabled people, but also isolates and marginalises us from the mainstream of society. This isolation and social exclusion can be seen within the family, where disabled children as young as three years old are often being sent off to boarding school at special schools within the built environment, where poor design prevent people with especially physical disabilities from participating in society, e.g. entrances and toilet facilities of public buildings within mainstream services, where ordinary services such as public transport and parking bays are planned with the assumption that disabled people would not want to use them.
But the exclusion we as disabled people face can most prominently be seen in our exclusion from the labour market and employment opportunities. This exclusion is often a culmination of the aspects identified above.
The World Programme of Action concerning Disabled Persons, followed by the United Nations Standard Rules on the Equalisation of Opportunities, introduced a new approach to disability - the so-called social model of disability. This has brought new hope to people with disabilities. South Africa, as elsewhere in the world, has realised that the traditional health and welfare approach to disability has failed. The difficult part is however how to make the shift, so that we do not simply call old approaches by new names.
The Integrated National Disability Strategy provides government with a framework for policy development within the new approach to disability.
Fundamental to the new approach is the acknowledgement that disability is not the problem of the individual with a disability. It is an issue that needs to be addressed by society as a whole, as it is mainly society that causes problems for and exclusion of people with disabilities.
An advocate using a wheelchair is able to practice as an advocate in a court of law - he/she might however be prevented from practising his/her profession by the stairs leading into the court building.
A Deaf social worker has all the skills and training to be a social worker to all South Africans, but it is the lack of Sign Language interpreters and general use of Sign Language that prevents her/him from serving all South Africans.
This so-called social model of disability therefore places the emphasis on the shortcomings in society on the one hand, and the abilities of people with disabilities on the other hand as a basis of constructing disability. This simply means that general community resources need to be made accessible and welcoming for all the people of South Africa - including people with disabilities. We need to stop creating separate facilities for people with disabilities.
The disability rights movement therefore believes that the 'cure' to the 'problem of disability' lies in restructuring society.
THE INTEGRATED NATIONAL DISABILITY STRATEGY The draft White Paper on the Integrated National Disability Strategy recommends that promotion and implementation of policies and programmes for disabled people that ensures equity in terms of employment benefits, status and conditions form part of a set of standards aimed at realising the creation of employment equity for people with disabilities. Positive measures could include "equitable provision of employment benefits, e.g. unemployment insurance, pension scheme membership, health insurance;
equitable application of the Basic Conditions of Employment Act;
the application of these standard working conditions to sheltered employment;
the promotion of measures to protect disabled workers against discriminatory practices during retrenchment."
It furthermore identifies the promotion of reasonable and equitable work environments for disabled workers as another component of the set of standards. Measures could include
"incentives to encourage the accommodation of work stations through the provision of assistive devices, personal assistance, specialised and alternative technology and equipment and adjustments to the work environment that will facilitate the employment of disabled people;
the use of vocational assessment techniques that facilitate the matching of disabled job-seekers with job-related requirements;
the listing of essential job requirements as a basis for determining the suitability of disabled job-seekers for a job;
the use of incentives to encourage the provision of work instruments, machine adaptations, documentation and tools in the format that is usable to and equitably accommodate the needs of disabled workers;
the promotion of alternative work arrangements and hours, e.g. part-time work, flexi-hours, job-sharing and tele-work;
the evaluation of the performance and productivity of disabled employees on a basis that is an equitable comparison to able-bodied employees."
DISCRIMINATION IN THE WORK PLACE People with disabilities face different forms and degrees of discrimination once within the work place. Discrimination in accessing employment benefits - Disabled employees are often excluded from medical aid schemes, pension schemes and other benefits on the basis of their disabilities.
Discrimination when further training opportunities arise - Disabled employees are often excluded from in-house or external training opportunities due to lack of accommodation of diverse needs - training courses are often hosted in inaccessible buildings, Braille materials are seldom available and interpreter services for Deaf workers extremely scarce.
Discrimination during promotion - The lack of permanent status, inaccessible training courses, and discriminatory attitudes (‘he should be grateful that he does have a job’) often lead to very few promotional opportunities for disabled employees, resulting in stagnation and demotivation. Performance is also often determined without taking into consideration the disabling environment within which a person work.
Discrimination with retrenchment - disabled employees, together with elderly employees, are often the first to go when retrenchment takes place, irrespective of their type of employment.
Discrimination on the basis of gender - women with disabilities often face double discrimination, especially in terms of sexuality - they are often not believed that harassment is taking place, and receive very little support when pregnant - this is mainly due to the fact that women with disabilities are seen as asexual.
It is important to note that the majority of the above scenario’s have been outlawed through the Constitution and Labour Relations Act, and now the proposed Basic Conditions of Employment Bill. Yet daily instances of discrimination on the basis of disability continue to exist, and continue to impact negatively on the economic empowerment of the individual and on the economic development of the country.
It is also important to note that a large percentage of workers with disabilities are employed in sheltered employed, i.e. in protective factories or sheltered workshops due to the discrimination they have faced in accessing open labour market employment.
There are however a number of problems associated with employment conditions within the sheltered employment sector -
Sheltered and protective workshops are presently allowed to operate with very little legislative framework, and very little monitoring as to the promotion and protection of the rights of disabled workers employed within these workshops.
The means test applied to disability grants is often cited as the main reason for wages of as little as R20 per week for a 40 hour week, and for workers having no access to benefits such as medical schemes, pension benefits etc.
ACCOMMODATION OF WORKERS WITH DISABILITIES IN THE BASIC CONDITIONS OF EMPLOYMENT BILL - A GENERAL OVERVIEW DPSA would like to express general support for the Bill as tabled, and would like to congratulate the Ministry and Department of Labour with the excellent work done since 1994 in transforming the labour environment.
We have been following the debates within NEDLAC with interest, as being employed often means that we stand in both shoes of employer and employee simultaneously, i.e. we often have to employ personal assistants to enable us to get to work, assist us within the workplace and at home. Our independence and economic life is therefore often directly subjected to basic conditions of employment of our personal assistants, and given the severe financial drain of employing assistants on our income, we tend to on the one hand side with the employers, whilst on the other siding with labour as workers who are particularly vulnerable to exploitation. We could therefore really relate to the tensions between employers and workers over the past months.
Yet we have resolved that human rights - and therefore workers’ rights - have to take precedence, and that negotiations with the Department of Welfare with regards to personal assistance services rather be done within the context of the Labour Relations Act and the Basic Conditions of Employment Bill.
One of the most difficult aspects of commenting on the Bill from outside the labour market, is developing a vision of the broader picture by fitting this Bill into the broader picture of total labour reform, i.e. taking into consideration the provisions in the Constitution, the Labour Relations Act, the proposed Employment Equity Bill etc. This is necessary in order to ensure that no gaps in the legislative framework exist.
We are in particular in support of the following provisions -
the inclusion of sheltered workshops and protective factories under the Basic Conditions of Employment Bill of 1997.
the inclusion of workers in vocational training under the provisions of the Bill.
the fact that the Bill covers workers who have entered into agreements prior to the adoption of the Bill.
protection for workers in part-time or so-called temporary employed.
provisions for maternity leave, family responsibility leave and protection of employees before and after the birth of a child. This is particularly important for workers who have children, spouses, parents or siblings with disabilities among others.
prohibition of employment of children.
PROPOSED AMENDMENTS AND RECOMMENDATIONS There are however a number of provisions as they relate to workers with disabilities which we believe need more attention .
REGULATION OF WORKING TIME Workers with severe disabilities often require more flexibility in terms of regulation of working time to enable them to contribute productively to the economy and labour market due to the user-unfriendly environment in which they live.
Although some provision is made for the possibility of tailoring working hours, it is not clearly stipulated as a possibility under the basic conditions of employment (the ILO provides quite clear guidelines re the tailoring of working hours).
Recommendation 1
It is recommended that provisions for tailoring working hours be included in the Bill as part of Regulation of Working Time.
Recommendation 2
DPSA would like to support the progressive reduction of maximum working hours to a 40 hour work week and an eight hour working day LEAVE Workers suffering from chronic illness such as kidney failure or cancer often need to go onto dialysis or chemotherapy to enable them to continue contributing to the economy. This is often used as a mechanism to retrench or fire them on the basis of ill-health.
PARTICULARS OF EMPLOYMENT AND REMUNERATION Section 28(3) makes provision for written particulars to be explained to employees in a language the employee understands should they be unable to understand the written particulars.
We would like to draw your attention to the following
- Deaf workers would in most cases need access to Sign Language interpreters to have
particulars of employment and remuneration explained to them, as the majority of Deaf
South Africans have had little or no access to formal education and therefore basic literacy
and numeracy
- Workers with intellectual disabilities would in most cases need access to user-friendly
language in their mother-tongue to be able to have equal access to particulars of
employment and remuneration and therefore protection from exploitation. Use is often
made of advocates to assist.
Recommendation 3 We would therefore like to recommend that provision is made under section 28(3) for the following -
that the clause makes it clearer that the onus for making available interpreters/ intermediaries to communicate in the employee’s language rest on the employer
to specifically include the use of Sign Language interpreters and advocates/ intermediaries for people with disabilities by inserting this proviso at the end of the section 28(2).
GENERAL RECOMMENDATIONS EMPLOYMENT CONDITIONS COMMISSION The functions of the Employment Conditions Commission as described in Section 58(2)(c), (d) and 58(3) clearly indicate the need for the ECC to have a clear understanding of disability within the new paradigm, the particular discrimination and marginalisation workers with disabilities face and the particular communication needs people with disabilities have in participating equally in meetings and public hearings.
Section 59(1) in addition makes provision for the appointment of 3 commissioners who, among others, must be knowledgeable about "the conditions of employment of vulnerable and unorganised workers".
Recommendation 4 We would like to propose that the Minister of Labour adheres to the principles of self representation as set out in the Integrated National Disability and which have been generally accepted in government by ensuring that a qualified person with disabilities is appointed to the Commission in the consultation with the South African Federal Council on Disability (SAFCD) and the Office on the Status of Disabled People(OSDP).
Recommendation 5 We in addition recommend that the Minister appoints a person from the small, micro and medium enterprises sector to the ECC to ensure that the sector is sufficiently represented.
MONITORING AND ENFORCEMENT Effective monitoring of the Act will be critical in the transformation process of the labour market and protection of workers’ rights. This can however be done if inspectors have a clear understanding of disability within the new approach, and if they have been confronted with their own prejudices.
Recommendation 6 We propose that all inspectors be subjected to a compulsory process of anti-bias training which will focus in particular on disability, cultural and gender sensitive training.
PROTECTION OF EMPLOYEES AGAINST DISCRIMINATION The first step in protecting employees against discrimination is enabling them to understand the legal framework which provides them with protection.
The Bill does provide for some action in this regard, eg mandatory public displays of the conditions of employment, mandatory disclosure of information which relates to any council or sectoral employment standard by which the employer’s business is covered etc.
This however still places the onus on the employer, and therefore an effective inspectorate to ensure that the provisions within the Act are complied with.
Of particular concern is protection for workers working in rural areas and workers with disabilities who experience communication barriers.
Recommendation 7 It is recommended that the Department of Labour implements a public education programme, including using the public media and developing user-friendly guidelines.
CONCLUSION Equalisation of opportunities for people with disabilities should ultimately culminate in economic empowerment and liberation of disabled people, irrespective of our disabilities. Disability is not an individual issue - it is an issue which affects our families, our communities, the economic development of our provinces and our country as a whole.
General development programmes and services aimed at the economic upliftment of the people of South Africa should at all times target people with disabilities - we are not an "add on" - we are as South African as our so-called able-bodied brothers and sisters.
Equity is not only needed in terms of access to employment opportunities, but also in terms of accommodation in the workplace, equal access to benefits and protection from unfair discrimination.
October 1997