John Brand, one of the most skilled and experienced lawyers in the field, expresses serious reservations about the amendments currently under discussion and calls for a rational problem-solving process within Nedlac.

“In many respects, the proposed employment law amendments published in December do not properly address the decent work deficits agreed to in the 2010 Decent Work Country Programme for S A.   Arguably, they do not address them at all”.

“It is not too late to embark upon a rational joint problem-solving process within Nedlac, in which the social partners could seek to find mutually satisfactory solutions to the decent work deficits.   These solutions must address the needs and concerns of employers, employees, the unemployed and the government.   It is inappropriate to prefer one group’s interests above others.   Those who promote deregulation or a total ban on labour brokers seek to do just that.   What needs to be done is to put the proposed amendments to one side and, with the help of skilled facilitators and expert consultants, to generate solutions to the decent work deficits that appropriately balance the interests of all stakeholders”.

This important article was published in Business Day this morning by John Brand, the employment law director at attorneys Bowman Gilfillan, entitled Decent work has solid basis in law, but lacks application.

The extracts above and those that follow are taken from that article which needs to be read by everyone involved in the field of employment law and industrial relations.

Meaning of ‘decent work’ and ILO

“’Decent work’ is a term that means different things to different people in S A, but it does have a well-established and conventional meaning in international labour law and labour relations’.

“It means ‘the promotion of fundamental principles and rights at work that relate to:

  • promotion of employment and income opportunities;
  • expansion and improvement of social protection coverage; and the
  • promotion of social dialogue and tripartism’”.

“The International Labour Organisation and the social partners in the National Economic, Development and Labour Council (Nedlac) all agreed that this is what the term meant in the 2010 Decent Work Country Programme for S A, signed by the Nedlac social partners in S A in November” .

2010 Decent Work Country Programme for S A

“In the 2010 Decent Work Country Programme for S A , which was a major and protracted Nedlac project facilitated by the International Labour Organisation, the social partners — the government, labour and business — measured S A ’s compliance with the organisation’s decent work standards”.

Action plan to address decent work deficits

“The social partners then agreed on detailed action plans to address the ‘decent work deficits’ that were identified”.

S A has given legislative effect to ILO Conventions

“In relation to the enactment of legislation to give effect to the conventions, it was recorded that, since 1994, S A had given effect to conventions in the constitution, the Labour Relations Act, the Basic Conditions of Employment Act, the Employment Equity Act, the Skills Development Act, the Occupational Health and Safety Act, the Compensation for Occupational Injuries and Diseases Act, the Unemployment Insurance Act and the Mine Health and Safety Act”.

Decent work deficits

“In summary, the decent work deficits were prioritised by the social partners as:

  • Inadequate service delivery by the inspectorate of the Department of Labour;
  • The failure to ratify and implement International Labour Organisation conventions in the area of labour inspection and private employment agencies;
  • The level of gross decent work deficits in the informal economy, which are aggravated by shortcomings in the labour inspectorate;
  • Inadequate regulation of abuse in atypical employment in accordance with International Labour Organisation conventions;
  • The absence of an enabling environment for job-rich growth, sustainable enterprises and skills development;
  • The inadequacy of social protection coverage through well-managed and equitable access to state social security and health benefits, occupational safety and health, and improved workplace responses to the HIV/AIDS epidemic; and
  • The weakness of tripartism, social dialogue and labour market institutions and of their constituent members”.

Primary failure is lack of enforcement by Dept of Labour

“It is clear from the decent work deficit audit done during the formulation of the programme that the primary problem in relation to decent work in S A is not the failure to ratify conventions, nor the failure to enact proper laws, but the enforcement of those laws by the Department of Labour”.

Labour brokers can enhance employment if properly regulated

“In relation to atypical labour and labour brokers in particular, it is noteworthy that all the social partners, including the Congress of South African Trade Unions, agreed that labour brokers can enhance employment in certain circumstances but they can also be used to undermine decent work among vulnerable employees”.

“It was therefore specifically agreed that areas of abuse should be regulated, and not that labour broking should be outlawed”.

No need to outlaw labour brokers

“The social partners seem to have recognised that to outlaw labour broking might have a negative effect on employment levels, would be unconstitutional (as it was held to be in Namibia), and in violation of the International Labour Organisation Convention 181 on Private Employment Agencies”.