Labour laws must protect most vulnerable South Africans

Issued by Michael Bagraim MP – DA Shadow Minister of Labour
02 May 2018 in News

The following speech was delivered in Parliament today by DA Shadow Minister of Labour, Michael Bagraim MP, during the debate on a National Minimum Wage.

We are here today to celebrate May Day and labour freedom. It is with a heavy heart that I need to say that the labour freedom was short-lived.

In 1995 under the wisdom and guidance of President Nelson Mandela, we hailed the implementation of our Labour Relations Act in a plethora of forward thinking labour laws.

However, since the implementation of these laws we have gone backwards. In this very Parliament four years ago, The President of the ANC and unfortunately of the country, Jacob Zuma, announced that the government would be creating 5 million jobs.

Under Zuma’s leadership, we have seen a steady loss of 5 million jobs.

Our labour laws have acted as a handbrake to job creation and the labour regulatory authority appears to have done everything in its power to not only cause our workforce to dwindle but to stop businesses from creating more employment positions.

Today we have an astounding 9.2 million people unemployed and we are about to embark upon disastrous legislation which will cause at least a further 715 000 jobs to be lost.

The Treasury tells us that they can forecast these losses so it ill behooves us to say this is an unintended consequence.

Although there are some progressive and forward thinking imminent changes to both the Basic Conditions of Employment Act and the Labour Relations Act, the overall import of the changes will be negative.

It doesn’t help to have some of the best and innovative laws in the world if these laws are not going to have an effect on those at the workplace.

We have over 16 million people employed in South Africa today but only 1200 inspectors from the Department of Labour.

These inspectors are underpaid, overworked and certainly under-resourced.

Invariably small business, with all sorts of pressures, don’t even know what the labour laws are and the majority of our workforce is not unionised.

All the labour federations acknowledge that their numbers are dwindling and the unions confirm that their reach into the small business sector is minimal.

Our labour laws can be compared to a brand new beautiful shining car which has no engine and no driver.

Our government’s answer to its inability to enforce the law is merely to make more law and make the regulations more onerous and complicated.

There is no incentive for anyone to even consider the implementation of the laws that we already have, let alone the new laws and the burdensome regulations we are about to face.

When a staff member is first engaged at the workplace, the very basis of our labour legislation requires that the staff member receives a letter of appointment or a contract of employment.

From that contract the rest of the rights flow in terms of the implementation of the Basic Conditions of Employment Act, the Labour Relations Act and the many other pieces of labour legislation on our statute book today.

When we enquire as to how many workers in South Africa actually do have letters of appointment or contracts of employment we are astonished to see that thousands of our workers don’t even have that simple document from which the enforcement of their rights flow.

Unfortunately, the message that we are receiving from the employers is the same.

Hundreds of companies tell us that they have difficulty trying to register for Workmen’s Compensation and UIF.

Many more tell us when they try to claim from Workmen’s Compensation and UIF they hit a dead end.

The most vulnerable people in our society are those who have been injured at work and who are unable to continue working.

They have insurance for which they handsomely pay every month.

This insurance, workmen’s compensation, supposedly is there to compensate them for these injuries and to pay for their medical expenses.

Only last week, I received a further 27 complaints of claims that have been outstanding for years.

These complaints are a drop in the ocean as I receive regular daily pleas for help from these vulnerable people who are left bereft and non-functioning.

Despite the fact that we have insurance which is heavily resourced and over-funded, they receive nothing.

I have just read an application to The High Court where the applicant is seeking to have a warrant of arrest put out for the Workmen’s Compensation Commissioner.

One can only shudder at this abuse when in fact the PIC is holding billions of rands in reserves to enable the commissioner to pay out our injured workforce.

The real elephant in the room is the ongoing mismanagement of just about every section of our Department of Labour.

We have just had current feedback from the Auditor General who talks about material non-compliance, irregular expenditure, inadequate contract management, wasteful expenditure, lack of skills at various levels, high number of fraud and financial management investigations, duplicate payments made and loans issued to medical service providers in prior years not recovered and many recent suspected fraud incidents.

I can go on, however, there is a culture of poor performance and a weak internal control environment.

It is horrific to read about the lack of urgency and commitment to improve the control environment which may lead to increased instances of fraud and could also result in the possible depletion of funds which would negatively impact service delivery.

All this when the service delivery is at an all-time low. It should be pointed out that there are some existing dedicated hard-working staff who are probably over-worked and who often get discouraged and eventually leave the entity or adapt to the culture of poor performance.

We have entities such as the compensation fund who keep purchasing IT systems but somehow never integrate them properly or learn how to use them.

It should be mentioned that the Commission for Conciliation, Mediation and Arbitration (CCMA) is the one sparkling jewel in the broken crown of the Department of Labour.

The CCMA has managed to a large degree to try and keep labour peace and ensure that disputes are managed both timeously and efficiently.

Unfortunately, we are going to see this jewel have its shine taken off within the next year when the burdensome national minimum wage lands on its lap.

The CCMA performance has been sterling but that are running at full capacity with their budget utilised to the fullest. The CCMA investigated its future workload and has been conservative in stating that its workload will be increased by over 30% with the advent of the new legislation.

There is no budget earmarked for this increase and they are over a year away from being able to train commissioners to handle the tidal wave (no, tsunami) of referred disputes.

NEDLAC, the toy telephone, spent over two years debating the national minimum wage and its modalities.

Many of these issues are going to have an enormous effect on the unemployed in South Africa and the future workforce.

There was no voice of the unemployed and there was certainly no thought with regard to job creation.

This is the true story of rearranging the deck chairs on the Titanic. As talk shops go, NEDLAC is good for those who are entrenched in the workplace and seen as the labour aristocracy.

Even now when a new trade union formation seeks a place at the table, greedy wolves around that table are trying their utmost to deny them a seat.

It is really rich to see that the auditor general has raised a concern about HR management within NEDLAC.

It would be laughable as these are the very people who purport to guide human resources in South Africa.

Over and above this enormous levels of concern have been earmarked within NEDLAC such as appliance management, procurement and contract management, performance management, financial management and oversight and monitoring.

They have been warned they are about to face an audit failure. Collective bargaining in South Africa is about to take another knock with these future amendments where the Minister may extend a collective agreement where either employer parties or the trade union parties are representative.

In other words, big business and big trade unions can extend agreements to destroy small business.

There are some positive amendments which need applause. Firstly, the provision for a secret ballot is intended to ensure that individual union members are able to exercise their right to decide about strike action in a democratic manner.

Furthermore, every strike must have picketing rules and parties may agree on their own rules or the default rules will apply.

At this point I must congratulate Honourable Ian Ollis of the DA who proposed this very amendment in a private Members Bill three years ago to the day.

At that point the motion of a secret ballot was struck down by the ANC as being anti-worker.  Honourable Ollis certainly needs the accolades for this forward thinking.

The intention of the amendment to allow for further extension of a conciliation period is intended to provide for more time where there are reasonable prospects of reaching an agreement.

In essence our law is trying its utmost to find areas of conciliation rather than to resort to strike action.

This is not there to frustrate trade unions and workers but to provide an opportunity for a settlement to be reached. This can be praised as forward thinking.

Anyone materially affected by a strike or a lock out may apply to the Labour Court for an Order to have an advisory arbitration panel appointed.

This is intended to come into effect after a strike has commenced and only in particular circumstances. It does not interfere with the right to strike and nor can it be used to stop strikes.

Again, this decisive piece of legislation will help find solutions to destructive and non-functional strike action. It is intended as constructive and non-binding and will be a means to facilitate a settlement.

These proposed amendments are intended to provide a way in resolving strikes that are intractable, violent or may cause a local or national crisis.  This is in line with the International Labour Organisation.

Unfortunately, the general import of a universal national minimum wage will indeed have costly consequences and will lead to the inflexibility of our labour laws and regulatory bias against employment of low schooled workers.

The reality of our complex regulations will be universal avoidance and unfortunately will also be impossible to implement, monitor and enforce.

Today we face the scourge of unemployment which is increasing monthly and already in the youth category over 50% are unemployed, many of whom are unemployable.

The Democratic Alliance hereby speaks for the unemployed and for those who face imminent retrenchment. The DA will always speak on behalf of the most vulnerable in our society.