Briefing on labour legislation, skills development, protection of vulnerable workers, equity on the labour market and sound labour relations
Members had concerns about the exploitation of workers by labour brokers but the Department said that legislative amendments were in the pipeline to address the issue. Non-compliance with employment equity legislation by employers was another issue that was to be tackled by way of legislative amendments. Enforcement would be stricter as a result. Members felt that the CCMA should be more accessible to the people as accessibility to its services especially a problem in remote rural areas.
The Department of Labour briefed the Committee on labour legislation, protection of vulnerable workers, equity on the labour market and sound labour relations. The delegation comprised of Mr Jimmy Manyi Director General, Mr Sam Morotoba, Deputy Director General, Mr Les Kettledas, Deputy Director General, Mr Thembinkosi Mkhalipi, Ms Tina Roos Director in DG’s Office.
Mr Kettledas proceeded with the first leg of the briefing which dealt with labour legislation. The Committee was given an introduction to the pieces of legislation relevant to the Department, that is, Basic Conditions of Employment Act (BCEA), Employment Equity Act (EEA) and the Labour Relations Act (LRA). He made a point of highlighting each Act’s purpose. The Department was also in the process of reviewing several pieces of legislation in order to ensure that they responded to challenges posed by the labour market. The BCEA, LRA, EEA, Compensation for Occupational Injuries and Diseases Act, Unemployment Insurance Act and the Skills Development Act would be reviewed. The review formed part of the Minister’s five-year plan. Some of the amendments were necessary. For example the BCEA and the LRA were to be amended to deal with problems associated with labour brokers. The EEA needed to be strengthened as non-compliance by employers was too high.
Mr Kettledas continued with the second leg of the briefing which covered protection of vulnerable workers, equity on the labour market and sound labour relations. Members were given a comprehensive breakdown of the EEA on what each chapter entailed. The EEA provided for the establishment of the Commission for Employment Equity (CEE) which was an advisory body to the Minister. Mr Kettledas continued by setting out the legislative framework for protecting vulnerable workers. Vulnerable workers included domestic workers, farm workers and children working in the performing arts. An Employment Conditions Commission was established in terms of the BCEA and it was also an advisory body to the Minister. Child labour was further elaborated upon, noting that a Child Labour Programme of Action was formally adopted in Cabinet in February 2009.The Department was also engaged in attempts on promoting sound labour relations. These included the registration of trade unions, employer organizations and bargaining councils. Members were also given information regarding the Department’s support to the Commission for Conciliation Mediation and Arbitration (CCMA) in order to ensure speedy dispute resolutions. The Department also monitored collective bargaining disputes between unions and employer organizations as well as strengthening civil society organizations involved in the protection of vulnerable workers.
[Please refer to the attached documents for greater detail.]
Mr M Sibande (ANC, Mpumalanga) addressed the Director General and stated that it was high time that the image of the Department be changed for the better. The image of the Department was considered to be bad in the provinces. He felt that individuals should not have to wait for the Labour Court to have issues resolved. Mr Sibande asked what the job of the Department was. He also asked what was being done to labour brokers that do not comply. Mr Sibande was especially concerned about the exploitation of seasonal workers. A system needed to be in place that would identify employers and labour brokers that did not adhere to the law. He additionally felt that the Unemployment Insurance Fund system of payouts needed to be re-evaluated and improved.
The Director General said that the Department intended to change its image to a more positive one. He stated that the Labour Department was a central department in the economic sphere of SA. Mr Manyi said that the Department’s actions had to be in line with the law. The Labour Court had the enforcement mechanisms. It could issue fines etc. The Department had to abide by the Act. He said that the Department would develop a clear position paper on labour brokers. The Department’s view was that labour brokers were dehumanizing people. The Director General said that at conceptual level it was problematic.
Mr H Groenewald (DA, NW) stated that from the President’s State of the Nation Address one the main aims was job creation in SA. He asked what the main aim of the Department was. Was it to create jobs?
Mr Groenewald also asked what was being done about labour brokers and what measures were in place to take action against them. He further asked what the reason was behind the high figures of non-compliance by employers.
Mr Manyi responded that the aim of legislation was to regulate the relationship between employer and employee. He said that where labour brokers were involved the question remained who the employer was, was it the place where the worker actually worked or was it the labour broker. The Director General stressed that the issue would be addressed. The term labour broking did not appear in SA law. No section even made reference to labour brokers.
Mr Manyi said there were many reasons for non-compliance by employers. He explained that when sector charters were introduced it caused confusion. Employers thought if they complied with the charters there was no need to comply with the law. The Director General said that currently in SA there was an over supply of skills. There were no skills shortages in the economy.
Mr Z Mlenzana (COPE, EC) said that he was glad that the Department was re-looking at the definition of an “employer”. It should assist with enforcement and compliance. He asked at departmental level who was considered to be the employer. He said that the Act shied away from the issue. He also asked what the Department’s strategy was about non-compliance by the state as an employer or by state owned entities. Mr Mlenzana pointed out that there were some government departments and municipalities that refused to implement the Employment Equity Act.
Mr Mkhaliphi responded that the Department of Public Service and Administration (DPSA) was the overall employer. The immediate employer was the specific government department. He said that the Department was engaged in a social dialogue with its partners ie NEDLAC over legislation. The Department hoped to by next year this time to have completed the process on the Bill.
The Chair asked whether the Department had the capacity to monitor the enforcement of current laws.
The Director General said that the Department was working on its capacity to implement laws. Labour inspectors had to be competent in order to do their jobs.
Mr M Jacobs (ANC, FS) referred to the possible inclusion of public service workers within the UIF system and asked what the rationale was behind the decision. He also referred to the possible removal of the benefit schedule from the Act to Regulations and asked how checks and balances were to be kept.
Mr Kettledas responded that if public service members were not allowed onto the UIF system, there was a possibility of a constitutional challenge as they were covered by other pieces of legislation ie Labour Relations Act, Basic Conditions of Employment Act etc. He referred to the UIF benefit schedule and said that the Minister was advised by the UIF Board. In the event that benefits on the schedule were to be improved it had to first be considered by actuaries. Social partners like NEDLAC would also be consulted. The Minister could not change benefits unilaterally. A process of proper consultation was needed.
Mr R Tau (ANC, Northern Cape) said that he was more interested to know when exactly legislation was to be amended. He asked for timelines. He reiterated previous concerns about labour brokers exploiting workers.
The Director General said that the amendments were currently with NEDLAC. The law needed to be strengthened. He said that what matters to employers most was the bottom line ie profit. The Department had to therefore impact upon the bottom line. Hence the Department proposed a fine in the amount of 10% of turnover. Mr Manyi was convinced that it would be make it harder for employers not to comply. There had to be consequences for non-compliance. The law at present was very lazy and ineffective. Better enforcement was what was needed.
Mr D Feldman (ANC, Gauteng) referred to the Development Skills Programme and asked when it was to be amended. He further asked if the Department did not have a skills development programme. Mr Feldman also asked on what basis was the Equity Bill applied. He felt that the Commission for Employment Equity (CEE) was not representative.
Mr Morotoba noted that the reason for amending skills development was because of the transfer process that was taking place. He said that when the entire Act was transferred it cross references with other pieces of labour legislation. One Act was being split and it could create problems for future accountability by different Ministers and Director Generals. He stated that in terms of transfers the Act needed to be amended. There was a need for a comprehensive public service act that was distinct from a skills development act. Mr Morotaba pointed out that the drafting process had already started and would be completed by the end of September or October 2009. Thereafter consultation would take place and the Bill would be placed before Parliament between April and June 2010.
The Director General explained that the Commission for Employment Equity was not an employer. It consisted of 8 members in addition to the chairperson. It was made up of government, business and labour. Persons were deployed to the Commission. Its representativeness was a consequence of such deployment.
Mr Manyi emphasized that the government had data to prove that it was representative of minorities. On this level government was compliant. He noted that 74% of the nation was black, 10% was coloured, 10% was white and 3% was Indian etc. This was the ratio that was used to determine representativity. Appointments were made according to this ratio and at any given time there would be more blacks.
Mr Mkhaliphi added that government was not doing too badly in terms of representativity of different race groups be it male or female. He however felt that progress in the private sector was another story and was not doing so well.
Mr Kettledas stated that the commissioners sitting on the CEE were only part-timers. They all still held full-time jobs.
Mr Tau said that SETAS were under the Department of Higher Education. If they were not, what was the process to transfer them to higher education?
Mr Morotoba said that the President’s proclamation was from one Minister and one Director General to the other department. Hence from the Department of Labour to the Department of Higher Education and Training. The effective date was set at 1 November 2009. He noted that all departments were affected by macro-economics. Transfer of staff was based on agreements etc. Transfer of budgets was in terms of the Public Finance Management Act. The transfers from the Department were still in process.
The Chair referred to the second presentation and asked that figures on sectoral determinations by different workers be specific as per province. Ms Themba also asked that the Committee be provided with the actual addresses of CCMA offices.
Mr Kettledas said that the addresses of CCMA offices would be forwarded to the Committee.
Mr Sibande asked how one CCMA office situated at Witbank could service the whole of Mpumalanga. He proposed that the Department spread its wings and make the CCMA more accessible to the people. Mr Sibande asked what system the Department had in place to monitor companies that underpaid its female employees. He referred to pregnant women in the workplace and asked what the Department was doing to assist them. Referrence was also made to paternity leave and the Department was asked what it was doing to communicate the concept to fathers. How were people being educated about it? Mr Sibande stated that even though child labour was not as bad in SA as some other countries he nevertheless felt that child sex workers were still a problem. He asked what the Department was doing to protect these kids.
Mr Kettledas said that the law was very specific about maternity leave. He referred to the BCEA.
Mr Jacobs asked what criteria was used by the Department to determine how many and where CCMA offices would be located. He recommended that CCMA offices be decentralised. In some CCMA offices delays were caused because there were no commissioners. Mr Jacobs noted that advice centres were also not to be found in all the provinces. He pointed out that some companies do not have bargaining councils and asked should this requirement not be legislated. Mr Jacobs further asked why it was so easy for persons to register a trade union.
Mr Mkhaliphi said that CCMA offices were opened where there was a demand for services. The greater the caseload the more offices would be opened. If demand increased so too would the number of CCMA offices. Discussions were underway to open up additional offices in Port Shepstone and in Rustenberg. Mr Mkhaliphi explained that if no CCMA offices were to be found in an area the commissioners would travel to that area to deal with the case. Commissioners were allowed to use the Department’s offices or if there were none they could use municipal offices. They could use whatever infrastructure that was available. Provision had even been made for workers to now submit their cases at Department of Labour Offices. Mr Kettledas said that more education on the issue was needed. Mr Mkhaliphi addressed the issue of delays and said that conciliations had to be done in 30 days; the actual figure was 25 days. Arbitration had to be set up in 60 days; the actual figure was 55 days. Any case that was delayed for years would be in breach of law.
Mr Mkhaliphi said that bargaining councils were voluntary organizations. They were not formed by the Department of Labour. The Department did however facilitate the process. He explained that in law paternity leave was called family responsibility leave. A father was granted 5 days leave a year. Mr Mkhaliphi said that more advice offices would be opened if the funds were available.
Mr Kettledas said that every union should be allowed to register. It was based on the principle of freedom of association enshrined in the Constitution as well as stipulated by the International Labour Organisation. Persons could not be prohibited from registering a union but there had to be adherence to the legislative framework.
Mr Groenewald said there was a need for more than one CCMA office in the North West Province as mining was big in the area. He referred to the sectoral determinations of the Department and asked where mineworkers slotted in.
Mr Kettledas said that miners were covered by collective bargaining agreements between unions and mines. Sectoral determinations were used where there were no collective bargaining agreements or limited collective bargaining agreements.
Mr Mlenzana felt that more information was needed on the Department’s CCMA offices. The presentation did not reveal enough. He also referred to the cancellation of registrations of unions and asked for elaboration on the process.
Mr Sibande noted that the Departmnet had many things under review. He asked for an indication as to how far things were. Mr Sibande pointed out that many children were selling illegal dvds etc at street corners and on pavements. Kids were also being used as seasonal farm labourers. He asked what was being done about the issue.
Mr Kettledas said that sectoral determinations were done for a period of three years. Thereafter a review was done. The process had begun and would be completed by July 2010. He referred to the issue of kids selling illegal goods and said that it was a criminal matter and would be dealt with by the SAPS.
Mr Mkhaliphi said that under-paying women in the workplace was discrimination. There was an amendment in the pipeline that called for equal pay for equal value of work.
The meeting was adjourned.