Labour Law Conference Justice in Jobs Role of

Labour Law Conference “Justice in Jobs” Role of Nedlac Input by Herbert Mkhize 12 August 2010

What is Justice? • There is no justice in the world, none, However to be fair, there are few men and women and institutions that are making genuine efforts or striving to achieve this elusive ideal called justice. • The battle of ideas and theories about “what is justice” has been raging for centuries and there is no sign that this battle is about to end. • People served jail terms and continue to be jailed and even pay the highest price for standing up for what they consider to be injustices. • Some sections of the world society thrives on injustices, you take away injustice, their dreams will come to an abrupt end. • Injustices are meted out against strangers, against people who do not share our beliefs, people who do not dress like us, people who do not look like us, race religion, gender, not of same standing in the society like us, who do not speak our language, relatives and even our own children. • For ordinary people Justice remains a dream unfulfilled. Some even refer to it as a relative term. It depends on who you know, your standing in the society, how much money you have, and so on.

Justice • For a word that's used so often, and its precise definition is still a topic of debate for philosophers, theologians and legislators, is mind-boggling. • In any situation, be it in a courtroom, at the workplace or in a queue at the local pub, we want to be treated fairly. • We shouldn't be judged more harshly because of our skin color, we shouldn't be paid any less because of our gender, and we shouldn't have to wait longer for a drink because of what we're wearing. We feel we deserve equal and impartial treatment. • Love thy neighbour as though loved thyself; Do to others as you would like them to do unto you. • The struggle for equal rights is far from being over. Aluta Continua!

Justice in Jobs • Justice on the job will only becomes an issue if you are employed by somebody else, because if you are self employed, it is inconceivable that you can mete out injustice to yourself. • More often than not, the majority of workers work for people with whom they have little or nothing in common; interests, race, religion, language, beliefs, custom, standing in the society, the list goes on • If these are some of the key subtle or even overt drivers of injustices, then winning the battle against injustices on the job is not even visible in the distant horizon. • As the inherent competing interests in the workplace and the often adversarial nature of the employer employee relationship play itself out, justice on the job becomes the casualty. • Justice in Jobs is practically utopian as it competes with the very basic principle of the business of doing business both in public and private sectors. • Just in Jobs cant be captured better than the “Decent Work Project of the ILO.

In Search of Justice on the Job On December 10, 1948 the General Assembly of the United Nations declared in the Universal Human rights Charter … almost 62 years ago. Article 23 : • Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment. • Everyone, without any discrimination, has the right to equal pay for equal work. • Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. • Everyone has the right to form and to join trade unions for the protection of his interests. • Recent movements have also been made to encourage countries to promote labor rights at the international level through fair trade.

Building Blocks for Social Justice • ILO Convention No. 29 on forced labour [10 June 1930] • ILO Convention No. 87 : Freedom of Association and Protection of the Right to Organise, [17 June 1948] • ILO Convention No. 98 : Right to Organise and Collective Bargaining Convention, [8 June 1949] • ILO Convention No. 100 : Equal Remuneration Convention, [6 June 1951] • ILO Convention No. 102 : Social Security (Minimum Standards) Convention, [4 June 1952] • ILO Convention No. 105 : Abolition of Forced Labour Convention, [5 June 1957] • ILO Convention No. 158 : Termination of Employment Convention. [2 June 1982] • ILO Declaration on Social Justice for a Fair Globalization [ Ninety-seventh Session, ] • Freedom Charter: The People Shall Share in the Country's Wealth! : There Shall be Work and Security! [June 1955] • Chapter 2 [1996]of the Supreme Law of the Land, Constitution of the Republic sub-section 7 -39 is the Bill of Rights – the essence and in some instances the text of the ILO core labour rights Conventions are succinctly captured under this chapter. • Nedlac Act No. 35 of 1994 • LRA, BCEA, Employment Equity Act , SKILLS Development Act, etc.

The Advent of Institutionalised Social Dialogue in South Africa marks the new beginning to “Justice on the Job” Nedlac is the seat of National social dialogue in South Africa and it is, in many respects, a uniquely South African model of social dialogue. It was set up through an Act of Parliament – The National Economic Development and Labour Council Act, Act 35 of 1994. The Council is a representative and a consensus-seeking body where the parties to the Council seek to reach agreement on policy matters through negotiation and discussion based on mandates.

Building Blocks for Justice in Jobs The Nedlac founding declaration defined three main challenges for the organisation as follows: – Sustainable economic growth - to facilitate wealth creation: as a means of financing social programmes; as a spur to attracting investment; and as the key way of absorbing many more people into well-paying jobs. – Greater social equity - both at the workplace and in the communities: to ensure that the large-scale inequalities are adequately addressed, and that society provides, at least, for all the basic needs of its people. – Increased participation - by all major stakeholders, in economic decision-making, at national - company and shop-floor level - to foster cooperation in the production of wealth and its equitable distribution.

Building enduring partnerships – Promoting a shared vision of South Africa’s growth and development strategy, to frame sector and developmental agreements and lay the basis for partnerships in action. Addressing urgent challenges – Selecting from many possible interventions, those which hold the promise of the greatest possible impact in the shortest possible time Lending a hand – Securing the commitment and active participation of all constituencies in those areas identified for prioritised action.

Nedlac’s Remit Strive to promote the goals of economic growth, participation in economic decision-making and social equity. Encourage and promote the formulation of coordinated policy on social and economic matters. Seek to reach consensus and conclude agreements pertaining to social and economic policy Consider all proposed Labour Consider all significant changes to legislation relating to labour market social and economic policy before being introduced in Parliament being implemented or introduced in Parliament.

Nedlac’s ideals Building partnerships through policies that seek; • to tackle the urgent challenges facing the economy and to build an enduring partnership that would help build a prosperous SA. • to develop a common vision to make South Africa the leading emerging market and destination of first choice for investors whilst retaining and expanding social equity and fair labour standards. • to build sustainable partnerships that deliver on the key challenges facing the country on the social and economic fronts. • to promote and mobilise investments for growth and sustainable jobs, better jobs and decent work for all • to eradicate all forms of poverty and addressing the legacy of underdevelopment and • to strategically engage globalisation to the best advantage of the country

NEDLAC’S ENGINE ROOM LABOUR MARKET CHAMBER 6 Labour + 6 alt 6 Business + 6 alt 6 Government + 6 alt (LEAD GOVT DEPT-LABOUR) TRADE AND INDUSTRY CHAMBER 6 Labour + 6 alt 6 Government + 6 alt 6 Business + 6 alt (LEAD GOVT DEPT: TRADE & INDUSTRY) STANDING COMMITTEES -SECTION 77 -DEMARCATIONS -TESELICO PUBLIC FINANCE AND MONETARY POLICY CHAMBER 6 LABOUR + 6 alt 6 GOVERNMENT + 6 alt 6 BUSINESS + 6 alt LEAD GOVT DEPT: NATIONAL TREASURY DEVELOPMENT CHAMBER 6 Labour + 6 alt 6 Government + 6 alt 6 Business + 6 alt 6 Community + 6 alt LEAD GOVT DEPT: PUBLIC WORKS

NEDLAC PRINCIPALS Government Minister of Public Works J Doidge LABOUR Minister of Finance P Gordhan Minister of Labour M Mdladlana Minister of Trade and Industry Dr R Davies BUSINESS Dennis George General Secretary FEDUSA Manene Samela General Secretary NACTU Zwelinzima Vavi General Secretary COSATU Andre Lambrecht National Chairperson Futhi Mtoba President of Busa COMMUNITY SANCO Laura Kganyago WNC Mike Ka Toni DPSA Thulani Tshefuta OVERALL CONVENORS Jimmy Manyi Government Bheki Ntshalintshali Labour Dr Lotter Business Lulama Nare Community

NEDLAC STRUCTURE

MODUS OPERANDI Negotiations that aim to deliver formal consensus-based agreements on the economic and social fronts. Consultations that aim at developing policy prior to it being tabled for negotiation or implemented. Information sharing, workshops, roundtable discussions and seminars that report on and assess the implementation of social and economic policies. Research that guides the formulation and implementation of social and economic policy. Resolving socio-economic disputes in terms of section 77 of the LRA.

Key Achievements to date Created a forum in which the social partners have been able to work on their relationships and build some level of trust; Built an important instrument to strengthen democratic governance and transparency in the decision-making process; Provided the space for the evolution of a new approach to policymaking and changes to legislation, thereby contributing towards better and more democratic policies that enjoy wide acceptance; Given birth to a range of tripartite bodies and thereby promoted the concept of social dialogue; Created a central forum where greater consensus has been achieved amongst key stakeholders on a diverse range of policy issues; .

Key Achievements to date Contributed to the development of a sophisticated and modern industrial relations system; Helped to ensure a major investment programme in skills development; Spearheaded initiatives such as the Proudly South African Campaign, Workplace Challenge; Growth and Development Summit; South Africa’s Response to the Global Economic Crisis, National Electricity Accord, amongst others. Minimised, and in some instances even completely eliminated, the prospect of the national policies being challenged through the Courts.

Process Flow Green Paper [Conceptual policy proposal] White Paper [Policy Proposal] Draft Bill [Before being sent to parliament]

Developing the Work Program & Process • Tabling of policy proposals is governed by an agreed Protocol for tabling and consideration of issues in Nedlac. • Government tables its programmes of policy and legislation in Nedlac – often at the beginning of the first quarter. • Labour, Business and the Community constituencies likewise table their own policy issues for inclusion in the Work programme. • Issues are tabled at least three months before sign-off is required however the Protocol has provisions for issues that require quicker sign-off. • Parties agree at the outset whether the issue is being tabled only for consultations or negotiations, or both. • Parties then agree on a process and timeframes to expedite the matter.

Developing the Work Program & Process • In cases where the issue falls within the terms of reference of more than one chamber, a joint negotiation committee or task team is established. • There may also be instances where the intervention of the relevant Minister may be required. • In the event that Government indicates that giving effect to the policy require legislation, then Government tables the draft Bill at Nedlac for consideration. • Once the process of engagement on the policy has been finalised, a Nedlac report is prepared for ratification by the Nedlac Executive Council.

Developing the Work Program & Process • The Nedlac report, after sign-off by the relevant Nedlac Executive Council, is sent to the relevant Minister who in turn tables it in Parliament. • Parties are bound not to re-open discussion in Parliament on any area where agreement was reached in Nedlac. • However parties have the right to raise issues in Parliament on which there had been no agreement, or on which a Nedlac agreement was silent. • If parties raise issues during the Parliamentary process on which the Nedlac agreement was silent, or new issues, which go beyond the reservations captured in the Nedlac report, they inform Nedlac of such issues for the record. • Appears before the National Assembly Portfolio Committee on Labour and the NCOP Select Committee on Labour at least twice a year. [Mandatory] • Nedlac does from time to time brief other Parliamentary Portfolio Committees on its work, albeit on an issue driven basis.

Key Observations • Inherent in social dialogue is that it takes time for it to produce meaningful consensus that ultimately leads to real partnership. • Nedlac has acted as an important yardstick to measure the extent to which policies could find resonance with the needs of the citizens. • Therefore it follows that where social partners find absolute consensus or sufficient consensus on the policy thrust, ownership of such policies is co-shared. • It would therefore be correct to assume that if government tables a policy that does not solicit broader consensus among the key social partners, that should be taken very seriously by the legislators. • This should also inform legislators of the potential implementation difficulties that the policy would likely to suffer if signed off; • This arguably makes implementation much easier and most of all prevents unnecessary legal challenges and squabbles.

Key Issues In Each Of The Policy Work Streams • Management Committee: – – – – – Comprehensive Social Security Policy framework & Retirement Refunds reforms Energy – Security of supply Decent Work Country Programme Global Jobs Pact Superior Courts Bill National Poverty line & Poverty Measures Global Economic Crisis New growth path Ant-Poverty Strategy

Key Issues In Each Of The Policy Work Streams • Labour Market Policy Work Stream: – Proposed Wage Subsidy – Atypical Forms of employment & Labour Broking – Labour Market policy review • UIF • LRA • BCEA • EEA – Social plan – Code of Good Practice on EPWP – Immigration Act – Insolvency

Key Issues In Each Of The Policy Work Streams • Public Finance and Monetary Policy: – – – – Fiscal Policy Monetary Policy Savings Financial Sector Charter Council MTBPS Infrastructure Investment Program WTO – Derivatives

Key Issues In Each Of The Policy Work Streams • Trade and Industry: – – – – Co-operatives Amendment Bill Preferential Procurement Intellectual Property; Protection of Indigenous Knowledge Customs Control and Customs Duties Administered Prices IPAP Looming Water Crisis Regional Investments

Key Issues In Each Of The Policy Work Streams • Trade and Industry: – Fridge Studies: • • Import Parity Pricing Electricity Tariffs – Cushioning the Poor Retail Sector Transformation Overview of the economic instruments to support climate change mitigation Customs Fraud Essential Oils Study on Chemicals

Key Issues In Each Of The Policy Work Streams • Trade and Industry: – Trade • WTO – [Inter Alia; Doha, NAMA, Agriculture and Services] • SACU – EFTA • SACU –USA • SACU – MERCUSOUR • SACU – INDIA • SADC – Protocol Review • SADC – EAC- COMESA • SADC – EPA • Bilateral Investment Treaties • NTBs 28

Key Issues In Each Of The Policy Work Streams • Development Policy Work stream: – Expanded Public Works Program – Local government • Service delivery • Value for money – National Youth Development – Public Transport strategy • Rural Infrastructure – Xenophobia – National Health Scheme – Education strategy – Community care workers conditions – Climate Change

KEY CHALLENGES • The agenda becoming too technical and detail driven. • Experts more than political leadership drive the processes, hence the unintended consequence of unmandated positions at times and or difficulties' to get buy-in on agreements. • Decline in seniority and authority of delegates who serve in the negotiating chambers, task teams. • Sequencing of the policy making processes at times problematic • Work programme difficult to follow through. (Trying to do everything vs. 80: 20 approach. • Long lead times for mandating and report back. • Uneven levels of capacity

KEY CHALLENGES Inability of the Institution to attract the requisite skills due to financial constraints. Some, albeit few cases of issues being tabled at NEDLAC at short notice. The disconnect between the National Social Dialogue outcomes with what happens at Provincial and Local level. Incoherent policy objectives - lack of synergy. The challenge of policies that straddles more than one Government Department

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