Relook at rigid labour laws will help save SA
With the purported sudden emphasis on job creation, our department of employment and labour has regurgitated a budget that is not only pedestrian but reflects “business as usual”.
It’s almost as if President Cyril Ramaphosa is mouthing the right words in his support of job creation but is keeping his fingers crossed simultaneously knowing full well that his shining new minister of employment and labour is in fact going to do nothing that might rock the boat.
Furthermore, there is no evidence whatsoever of any activity in trying to encourage businesses to employ more people.
I am not sure why there is such an enormous fear within the governing party’s ranks to have a relook at our laws and regulations. I fully understand that the ANC is answerable to Cosatu but I can’t understand the complete lack of lateral thinking and even greater dearth of ideas.
All we hear from our president and the governing party is that they want another summit, another investigation and another inquiry. The jobs summit in 2018 produced nothing and resulted in further retrenchments. Our economy is still shrinking and the employers are still pessimistic. There appears to be absolutely nothing on the horizon to change the negative perception held by employers.
The only thing we seem to have agreed upon is that we are in an employment crisis and that it can’t continue like this. Other than the debilitating crisis and a lot of high-ranking politicians within the ANC wringing their hands with anxiety, we see nothing at all. One of the most understood issues in SA today is our extreme level of unemployment. Horrifically, the most affected are young black women. However, it is common knowledge to state that 55% of our youth cannot find jobs. We also know that this figure is growing and could be an explosion of atomic proportions.
Economists, academics, labour lawyers and politicians do not want to have a wholesale restructure of the laws that protect the health and safety of our employees. We certainly don’t want to go back to the sweat-shops of old and nor do we want to bring in a system of “employment at will”.
However, we are aware that some of our regulations and negative laws can be amended, which will have the effect of stopping the retrenchments and indeed freeing up the mindset to start creating new jobs. We do need to relook at the overall system so we can have a more flexible labour market. Obviously, certain sectors of the labour market have to be treated differently in certain areas and will require a unique approach to the regulations.
Some sectors are unorganised and might need more protection, but the organised and highly unionised sectors don’t need the harsh regulatory environment. The trade union umbrella bodies have pushed the government into a situation where the department of employment and labour is stepping in to obtain some gains in employment conditions without the need for negotiations. If the regulations are flexible, it would be up to the union movement in the organised sectors to negotiate piecemeal agreements with employers. These conditions would be vastly different for small emergent businesses and indeed would be different for businesses in the previously disadvantaged areas.
Even the minimum wage act would have to be interpreted in accordance with sector and area. Obviously, we need to protect trade union rights allowing them to bargain collectively for and on behalf of their members. To allow them to exercise this gain to non-parties outside the bargaining arena merely hampers economic growth.
The harsh reality is that the highly regulated environment kills small employers and also encourages informalisation. It would be interesting to see how many businesses have ignored our labour laws in their entirety. In certain areas, even the trade unions have condoned the non-payment of minimum wages specifically because they know the introduction of strict adherence to our law would lead to mass retrenchments. This is evident in some of the clothing manufacturers in northern KwaZulu-Natal.
I have had numerous examples of small businesses entering into discussions with the trade unions where agreements have been struck whereby the unions and management have “turned a blind eye” to the minimum terms and conditions. In turn, the management has agreed to put a moratorium on retrenchments. The more onerous the law and the lack of ability to implement it in any event has led the negotiating parties to strike their own deals outside the ambit of the legislation. This behaviour is not sustainable and is highly irregular.
Over and above this, the majority of businesses are merely choosing to downsize and stop expanding their businesses. This attitude is creeping through just about every industry in the country. It can be seen from agriculture to steel, and is certainly reflected in the latest unemployment figures that are coming in at 10-million unemployed South Africans.
The concept of “decent work” is now seen as not decent work but decent pay. My understanding of decent work is work that is available which in turn protects the health and safety of the employee. Very seldom do we see demands for better work environments and very seldom are the working conditions part of the annual negotiations.
Author and highly acclaimed academic Bob Hepple gave a keynote address at a labour law seminar in 2011 pushing for rights-based regulated flexibility. He said that “central to the notion of regulated flexibility is that one shoe does not fit all, nor does it fit for all time. Employers and workers must have the space in which to adapt labour standards to a particular sector or workplace over time.”
We have forgotten that we need to grow and develop our economy, and we have certainly forgotten that the very essence of our labour laws was to try and create an environment that was flexible but at the same time protected the rights of the individual employee.
Bagraim, a DA MP, is deputy shadow employment and labour minister.