Speaking notes for Minister TW Nxesi at the CCMA Labour Conference 2022
22 September 2022

 “25 years in pursuit of social justice and equity"

Birchwood

 

Ministerial Address: “The importance of effective legislation and dispute resolution institutions in promoting labour market stability, peace and equity"

 

 

Protocol:

  • Programme director
  • Director of the CCMA, Adv Cameron Morajane – and your team
  • Chair of the Governing body, Prof Enos Ngutshane
  • Professor Letlhokwa George Mpedi, Deputy Vice-Chancellor Academic of the University of Johannesburg
  • Assembled here today we seem to have a veritable who's who of labour relations legal expertise and experience going back to the dawn of our democracy and in many cases beyond - from the preceding era:
    • Judge President Basheer Wagley, President  of the Labour Appeal Court and the Labour Court of South Africa
    • Charles Nupen, Executive chair of StratAlign
    • Prof Paul Benjamin, Director of Cheadle, Thompson and Haysom
    • Chief Justice Raymond Zondo of the Constitutional Court of South Africa, and formerly the first Governing Body Chair of the CCMA and Judge President of the Labour Appeal Court.

 

The importance of the CCMA and the quality of this CCMA Labour Conference is reflected in the breadth and depth of the presentations and the presenters. Thank you to the CCMA for inviting me to participate as Minister of Employment and Labour.

 

The Labour Relations Act, enacted in 1995, remains the overarching principal labour legislation in South Africa - introduced after years of discriminatory labour laws, and what we would now deem to be unfair labour practices in the labour market. This Act also provided for a system of statutory dispute resolution.

 

This meant that, there was an urgent need to establish institutions responsible for rendering dispute resolution services. The introduction of the CCMA in 1996 was breaking new ground, and continues to play a fundamental role in the dispute resolution arena. CCMA rules were developed to ensure that arbitrations and conciliations remain just and fair practice is exercised equally in all cases.

 

Municipalities and other sectors of the economy participation in dispute resolution through various bargaining councils.

 

Subsequent labour legislation such as the BCEA (Basic Conditions of Employment Act), the Employment Equity Act and, more recently, the National Minimum Wage Act – meant that there was an increasing volume of law and regulation to be inspected, enforced and adjudicated. Collectively this brought a massive case load to the doors of the CCMA. I feel sure that at some point in this conference, there will be a detailed presentation of the Council's rising workload – perhaps linked to a strong hint that this is worthy of increased funding. In this you are supported by employers and labour alike. There can be few government institutions that unite COSATU, SAFTU and the DA in their support. The CCMA must be doing something right!

 

In relation to labour dispute resolution, institutions and processes draw their mandate from Section 27 of the Constitution and the LRA. On balance – and I see this claim will be subject to critical scrutiny at this conference – but my assessment would be that the CCMA has delivered on the implementation of this legislation – strengthening workers' rights and supporting social justice. One measure of the effectiveness of legislation and the CCMA is through public awareness. There can be few employers and employees – perhaps in some remote area - who are not acquainted with the terms 'unfair labour practice' and 'unfair dismissal' – as well as the role that the CCMA plays in facilitating a settlement.

 

Prior to introduction of the LRA, dispute resolution was not institutionalised – workers and unions had to fight for the rights of workers before they could focus on bargaining for conditions of service. The LRA and having institutions such as the CCMA, Labour Courts, bargaining councils etc to resolve labour disputes – entrenched rights and processes which allowed the parties to bargain collectively in a stable and organised fashion. Even so, we must always be interrogating issues of accessibility to these institutions as well as compliance with legislation.

 

A brief – but relevant - anecdote drawn from the early days of the English Industrial Revolution and the first evidence of collective action. Workers' demands were written down and sometimes tied to a brick which was then thrown through the manager's window at night – a necessary strategy to avoid victimisation. That is what un-institutionalised, unregulated collective bargaining looks like. By contrast the LRA provides protection against victimisation of workers.

 

The Department of Labour (as it then was called) Strategic Plan for 2014-2019 identified the following challenges:

  • Unemployment and underemployment
  • The changing nature of work
  • Inequality and unfair discrimination at work and
  • Labour migration

I will return to these themes in greater detail.

 

One specific trend I want to raise with you is the paradox – that whilst membership of registered unions has increased in recent years, union representivity in bargaining councils dropped. Between 2013/14 and 2020/21 union membership increased from three and quarter million to over 4 million, whilst the total number of registered unions rose from 203 to 220.

 

My Department commented that “one of the unintended consequences of the freedom of association espoused by the 1995 Labour Relations Act was the proliferation of trade unions." I flag this because I see that issues of freedom of association feature in one of your sessions tomorrow. Taken together with a prevailing 'majoritarianism' this tends to mean that members of splinter unions are not directly represented in bargaining chambers with the result that the collective representation of workers is weakened. This matter I have raised with various unions with the suggestion that they need to find modalities to unite all workers including those in splinter unions – difficult as that might be.

 

It appears, however, that there is fierce competition for membership to the point where some trade unions are using collective bargaining as a recruiting turf for membership by portraying their rivals as 'sell-outs' and by resorting to intransigent tactics. I need to mention that this is an important area where the CCMA plays a role in facilitating the settlement of long and damaging strikes.

 

Meanwhile, my Department has witnessed an increase in the number of 'unprotected' strikes in recent years – pointing to a fraying of respect for collective bargaining institutions. Having said that, even the most militant sounding union leader knows the value of registration, and can be found lobbying the minister for implementation of certain aspects of the LRA, for example, the extension of collective agreements to cover non-members.

 

The detailed analysis of the topic set for me by the CCMA: “The importance of effective legislation and dispute resolution institutions in promoting labour market stability, peace and equity" – it seems to me is best left to the legal experts and academics. What I would like to do in the remaining time is to throw the net a bit wider, and to discuss the broader context in which these discussions need to take place.

 

The Pandemic

Let us start by reminding ourselves that we are still in the tail-end – hopefully – of the Covid-19 pandemic. There can be no doubt that the pandemic and consequent lock-downs were a major wake-up call for all of us, amongst others:

•      Intensifying the digitalization of the work place and work processes – on-line administration and the rise of the ubiquitous virtual meeting. My understanding is that the CCMA has been able to respond creatively to these trends and reorganise its work accordingly;

•      the pandemic and lockdowns also initiated and accelerated the 'work from home' phenomenon – and we don't yet know what the final consequences of that will be.

•      It also highlighted the changing nature of work with the rise of the gig economy and precarious work – a phenomenon which is not really recognized in our current labour laws and collective bargaining system – which is based on the simple dichotomy between employer and employees.

•      the pandemic lockdowns, furthermore, flagged major gaps in our systems of social protection – particularly the UIF and Compensation Fund – which do not provide protection for workers in the massive informal sector and the new forms of work already referred to. Of course the two Funds were at the centre of providing relief to millions of workers, their families and communities in every corner of the country. But the massive pressure, particularly on the UIF, exposed system challenges and weak financial controls – which we trust are now being addressed.

•      For the Department of Employment and Labour it led to a review of health and safety rules and procedures – and speeding up the recruitment of 500 additional health and safety inspectors.

  • The pandemic also pointed to the importance of a tradition of social dialogue and institutions such as Nedlac – in facilitating an 'all-of-society' response to the pandemic and lockdowns – for the agreement of all social partners - needed for the necessary mitigation and health and safety measures.
  • I need to flag that the same processes of social dialogue were central to the development and implementation of the ERRP (Economic Reconstruction and Recovery Plan). Part of the plan addresses issues of job creation and preservation. In respect to the latter the CCMA has played an important role in respect of Section 189A applications for large scale retrenchments - which allowed the CCMA a platform to offer its facilitation services towards ensuring employment security through its Job-Saving strategy – in recent years, saving half of the jobs threatened with retrenchment.

 

So, for the Department, as well as entities, including the CCMA, recent pandemic history raised issues about what we do and how we do it. In addition to operational changes required, fundamentally, we find ourselves challenged around the very nature of work, how we define the modern 'worker', and indeed whether our collective bargaining and social protection systems are still fit for purpose.

 

Changing World of Work

It was the 2019 ILO Conference which formally received the report of the Global Commission on the Future of Work that had been co-chaired by President Cyril Ramaphosa with the Prime Minister of Sweden, H.E. Stephan Lofven. This took place only days after my appointment as Minister of Employment and Labour in the present administration. The ILO Conference adopted a joint declaration calling for:

•      A 'human centred approach' to guide the Future of Work, the Fourth Industrial Revolution and Artificial Intelligence, and

•      A re-commitment and re-emphasis on the importance of social dialogue based on tri-partism between governments, labour and business.

 

The ILO discussions focused on transformations sweeping through the world of work, including technology, climate change and demographic shifts bringing new opportunities for creating employment and improving incomes, thus attaining Sustainable Development Goal 8 on “sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all". 

 

It was also acknowledged that these transformations are disrupting labour markets, affecting global production networks and changing the tasks and skills requirements of existing and future jobs.

 

It was also argued that there needed to be linkages between jobs, skills and the policy reforms needed to support future just transitions in the labour market.  Presenters accepted the likelihood of employment potential in some labour intensive sectors but also the fact that jobs will be needed for the many young workers in developing Africa, Asia and Latin America. 

 

Furthermore, in this fast changing labour market, it was pointed out that skills, once acquired are likely to have a short shelf life making it necessary to continually reskill and upskill over the course of one's life.  At the same time, demographic trends were seen to be leading to massive migratory pressures and large-scale movements of migrants and refugees.

 

So, these are all issues that DEL and its entities have been concerned with – labour migration, just transitions and changing skills required to cope with these transitions.

 

It was also argued that decent job creation policies and strong and sustainable social protection systems will be essential to support working people, including young, prime-age and ageing women and men, through these multiple transitions. These are all issues that are fertile for the emergence of disputes – some of which will present to the CCMA in due course.

 

There was also general acceptance that we live in a world where a global supply of workers connected by the internet, can be hired in real-time to perform tasks as varied as IT programming, graphic design, or school tutoring.  This raises a number of questions:

•      What are the consequences of these transformations for businesses and workers in both the North and South? 

•      What does this mean for how we regulate labour markets?

•      What policies are needed to ensure that digital work will be decent work? 

•      What should social partners be doing to shape the direction of technological developments?

 

I believe that these big picture issues will dominate our work in years to come, including issues of:

•      Sustainability

•      Just transitions from the old to the new, and

•      Technological changes and the reorganization of work.

 

An appropriate response to these changes by legislators and social partners will be critical to preserving, adapting and strengthening the dispute resolution institutions promoting labour market stability – which have been the hallmark of the CCMA's tenure over the last 25 years.

 

In conclusion, allow me to congratulate the CCMA on its 25th anniversary and the coming publication entitled: “The CCMA's reflections: 25 years of social justice" – a visual portrayal. I am looking forward to seeing what 25 years of dispute resolution procedures looks like in photos. But nothing says 'respected, venerable institution' like a coffee table book! I look forward to your next 25 years.

 

I wish you well in your deliberations for the rest of this conference.

 

Thank you.

 

 

 

 

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