Past lessons and future challenges discussed at Labour Law Conference

October 1st, 2017

Partner at Bradley Conradie Halton Cheadle, Bradley Conradie, spoke about development in strike law at the 30th Annual Labour Law Conference in August.

By Kgomotso Ramotsho

The 30th annual Labour Law Conference, themed ‘past lessons, future challenges’ was held at Emperors Palace in August. Partner at Bradley Conradie Halton Cheadle, Bradley Conradie, discussed recent developments in strike law. Mr Conradie, said that when the Labour Relations Act 66 of 1995 (LRA) was drafted, it was done on the basis that a new system be introduced to avoid strikes. He added that it was genuinely believed at the time that all that was required was just to have a proper system in place, such as a proper structure for collective bargaining that would be able to avoid all bad and messy situations.

Mr Conradie pointed out that a big part of that was the genuine belief that all the struggle workers faced during Apartheid would end. He added that since South Africa (SA) was a democratic country with a Constitution, workers believed that they would have rights. He noted that the only worry the country had was how the economy was going to be built and how everyone was going to benefit from it.

Mr Conradie said after the LRA was implemented strikes had begun to reduce from 4 million strikes to 650 000 in 1997. However, he said wage disputes has continued to be the reason for many strikes, as well as other matters such as housing, medical care and so on. He added that the main achievement of the LRA, was to introduce a system whereby, there would be no need for unprotected strikes.

Mr Conradie noted that if a simple procedure was put in place that trade unions would follow the procedure, strikes would be protected, while workers enjoyed the benefits of protection. He, however, explained that the mining sector led to the increase of unprotected strikes that saw the loss of wages during 2005 and 2015. He said this was because of the ‘no work no pay’ policy. He pointed out that this then affected the families of the workers who depended on the workers’ wages.

Senior Commissioner at the Commission for Conciliation Mediation and Arbitration, Rene Huyser, was a guest speaker at the Conference.

Senior Commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA), Rene Huyser, said that there are 721 cases that are referred to the CCMA on a daily basis and 188 000 estimated cases are received at the CCMA monthly. She added that the CCMA had to look at strategies, on where they were going and how to respond to cases the CCMA received. She pointed out that the CCMA takes 23 days on average to deal with conciliation cases and about 60 days for arbitration cases.

Ms Huyser said pre-2010 the CCMA came up with the ‘Renewal’ strategy that was aimed at transforming relations in the labour market. Ms Huyser noted that in 2007 to 2010 the Renewal strategy was followed by the ‘Tsoso’ (to uplift) strategy, which was aimed at transforming the workplace in terms of the LRA and to promote justice and fairness in the work. Followed by the ‘Siyaphambili’ (we are going forward) strategy in 2011 to 2014 that was adopted to look at premier dispute prevention, management and dispute resolution and to make sure all cases the CCMA receives are dealt with effectively and professionally.

Ms Huyser added that in 2015 the CCMA adopted the ‘Senz’umehluko’ (we are making a difference) strategy that was aimed at making a difference by changing working life and workplace relations. ‘We want to capacitate all employees and all employers to make sure that they are able to deal with their difference on their own,’ Ms Huyser said. She pointed out that the CCMA wants to play a more proactive role and look at prevention and management of skills, rather than just looking at the dispute resolution.

Social security

Executive Dean of the Faculty of Law at the University of Johannesburg, Professor Letlhokwa George Mpedi, discussed the past lessons and future changes of social security. Prof Mpedi said that social security system in the Apartheid regime was characterised by racial, gender and geographical inequality. He added that there was a lot of exclusion and marginalisation. He said all that changed when the current Constitution came into place. He pointed out that in the Constitution there was a number of Constitutional values that are relevant for a social security system.

Executive Dean of the Faculty of Law at the University of Johannesburg, Professor Letlhokwa George Mpedi, discussed the past lessons and future changes of social security, at the 30th Annual Labour Law Conference in August.

Prof Mpedi said the values included human dignity, equality, non-racism and non-sexism. He pointed out that the social security system was entrenched as a human right in the Constitution and s 27(1)(c) of the Constitution states that everyone has a right to access social security. However, he noted that the right can be limited by means of internal limitation, which is about the availability of resources. He said there was an acknowledgement that SA is not a rich country that has resources to provide social security to all persons overnight.

Prof Mpedi said SA made provision for international labour law risks. He noted that the risks were contained in the ILO Social Security (Minimum Standard) convention 102 of 1952. He mentioned the classical risks as follows –

  • medical care;
  • sickness benefit;
  • unemployment benefit;
  • old age benefits;
  • occupational, injuries, diseases benefit;
  • family responsibility benefit;
  • maternity benefit;
  • invalidity benefit; and
  • survivor benefit.

Prof Mpedi said SA is one of the countries on the continent that covers all those risks, but said one must point out that as much as the government covers those risk, the coverage is not perfect. Prof Mpedi said that there are three main schemes, namely –

  • a non-contributory scheme;
  • a contributory scheme; and
  • a private scheme.

He said for people who fall in the non-contributory scheme to benefit, must either be ‘too young, too old or disabled’. Prof Mpedi said if a person does not fall in any of the above mentioned categories, despite the fact that they are poor, they will still not qualify for social security.

Prof Mpedi said a contributory scheme includes –

  • Unemployed Insurance Fund; and
  • a compensation fund.

While the private scheme includes –

  • a medical aid;
  • a provident fund; and
  • a pension fund.

Prof Mpedi pointed out that to participate in the contributory and private schemes, a person has to be in a formal labour market. He said people who are not involved or engaged in the formal labour market are excluded, because for one to be in the contributory and private schemes one has to be in an employer/employee relationship. He noted that a lot of people who are excluded in the labour market, relied on informal strategies such as stokvels, burial societies and support from relatives.

Prof Mpedi said that there were interventions that have been implemented since 1994, and added that along the way the social security assistance such as old age grants have experienced some changes, which have enhanced access to social security benefits. He pointed out that initially the old age grants were available to women from the age of 60 and to men from the age of 75. Prof Mpedi said it was found to be unfair discrimination, and the age for men to qualify for an old age grant was reduced from 75 to 60 as per their female counterparts.

Prof Mpedi noted that the child support grant was progressed from 0 to 18, while in the past years it was only given to children between 0 to 6 years. He added that non-permanent citizens, even when they had permanent status, would not qualify for grants but this has since changed as they now have access to social grants.

Executive Dean of the faculty of Law at the Nelson Mandela University and consulting attorney at Cliffe Dekker Hofmeyr, Professor Avinash Govindjee, added that 17 million people are currently obtaining social assistance in the country. He said when one weighs it against the 15 and a half million people in employment, it becomes social and political chaos. He noted that this allows the economy to become slow, tax revenue also slows down and the demand for social assistant grants increase.

Prof  Govindjee said statistics showed there was a high number of unemployed people and a million more could be unemployed by 2018. He pointed out that overall unemployment in SA had not fallen below 20% in the past 20 years. He noted that when the demand for social grants increases and the economy is slow, then the government goes into the expenditure of other areas of social assistance such as housing, education and health care, however, he pointed out that this move by government could create a recipe for chaos that would lead to an increase of violent protest actions.

Prof Govindjee pointed out that there has been tension between treasury and the affordability of social grants on the one hand and social development and the positive impact of social grants on the other hand. He said available research suggested the positive effect of social grants far outweighed the negative. However, he added that there has been an uncomfortable tension over the past few years, with questions raised, one in particular, if SA can afford to expand the social grant assistance access. He gave an example of the age of the child support grant being increased from 18 to 21.

Partner in the dispute resolution department at Bowmans, Khomotso Makapane, discussed the future of trade unions. Mr Makapane emphasised that unions had to understand the new entrants to the labour market.

Future of trade unions

Partner in the dispute resolution department at Bowmans, Khomotso Makapane, said that trade unions have not recognised the need to understand the new entrants in the job market. Mr Makapane added that people who get in the job market now are different and they are referred to as the ‘microwave’ generation, because they want things to ‘pop and to pop quickly’. He pointed out that if trade unions continue to go to the new generation work force with old slogans and services they offered in the past, it shows that the trade unions are not willing to recognise how much lives have changed.

Mr Makapane said as a result there is tension between trade unions and its members. He pointed out one other fundamental issue is that South African people overtime have not created the habit of being informed, but often accept what they read in media and what they see on their televisions as absolute fact. However, he noted that people are starting to ask difficult questions about trade unions, questions such as, if and why they need to join trade unions, what will trade unions do for them, if trade unions are relevant, what have they done in the past and what they are planning to do going forward?

Mr Makapane pointed out that a lot of trade unions have, however, not answered these questions. He said from a legal practitioners point, unions have to sit down with their members and devise strategies on how to handle matters or to solve problems when they occur. He said one cannot service a work force when they do not understand their needs.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2017 (Oct) DR 8.