SA's labour legislation needs re-engineering
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In a growing economy and with a business community which was thriving, our labour laws did a good job ensuring the increased job security of those already in employment in South Africa.
It must also be remembered that our labour laws, in many instances, were a reaction to the negative and discriminatory legislation we had under apartheid. Most of our labour legislation prior to democracy was extremely discriminatory and created an extremely unfair and unequal workplace.
In trying to ensure that we could correct the ills of the past, we introduced legislation and regulations to level the playing fields between the previously disadvantaged people in South Africa and those who already had jobs.
Unfortunately, many of these regulations were, in fact, a “blunt tool” and didn't really do justice to what was required. There was a stage in the early growth of our democracy when unemployment was being tackled and we were able to start reflecting the true demographics of South Africa.
Unfortunately, we started again on that slippery slope to greater unemployment about 15 years ago. The 10 years under the Zuma administration were catastrophic and we reflected more than 10 million unemployed South Africans, creating a situation where we were showing the worst percentage of unemployment in the world.
Our labour laws did absolutely nothing to enhance job creation and it is argued that many of our laws and regulations, in fact, did exactly the opposite.
We do need to look at the current situation and the extreme circumstances now presented to us during the lockdown and the destruction of the small business community.
Most of the academics, economists and labour analysts have called for an easing of the regulations and, in particular, have called for help to the small business community.
Most people who enter the employment arena will not have the experience and training to enter into employment with big business. The obvious route to gaining a foothold into the business world is via small business. Small business is normally able to bring in the inexperienced young and eager staff in order to develop these individuals.
This flouting of the regulations and rules is not commendable, but many small businesses tell me that it is the only way they can survive. When looking at this environment and in speaking to employees, they are only too pleased to retain employment and do not in any way insist on letters of appointment, contracts of employment, and in some cases even the minimum wage.
I can only imagine that in the business environment post-Covid-19 the desperation for jobs will become a lot more relevant and the ability to find employment will become almost impossible.
It is now that we need to ensure that organisations such as Nedlac (National Economic Development and Labour Council) look to re-engineering our labour legislation, and in particular the harsh regulatory authority.
We are, unfortunately, competing with every other economy in the world and there is a mad rush from other jurisdictions to produce goods and services at much cheaper rates than we can do.
These goods and services, in many cases, won't be bound by harsh labour legislation and will be able to be produced at much cheaper rates. These goods find a way into South Africa at cheaper prices than we can even try to match.
This is an enormous threat to industry, and in particular jobs. Nedlac, the body which acts as the supreme negotiating chamber for the labour movement, has not had anyone table the need to review our labour regulatory authority. Surprisingly, the business community has been largely silent.
The trade union movement is shrinking as jobs are being lost and civil society does not seem to have an appetite to weigh in.
Employment and Labour Minister Thulas Nxesi has said the current retrenchments are the “tip of the iceberg”.
He said the Commission for Conciliation, Mediation and Arbitration (CCMA) was already extremely busy, as it's case load under the national minimum wage had burgeoned. With all these retrenchments, one can expect the CCMA to be overflowing and for the cases to be heard a long time in advance.
In light of this, it is recommended that businesses look to putting private arbitration clauses into letters of appointment and contracts of employment. These clauses would allow any disputes arising out of the employment relationship to be handled by a private arbitrator.
The arbitrator would have to be paid by the business, but it would mean that dispute resolution would be done very quickly without relying on an overburdened CCMA. It is recommended that all disputes be kept to a minimum and that any issues escalated to personnel managers or human resource departments should be handled quickly, efficiently and with a minimum of fuss.
All employers should have a dispute resolution document with a very understandable and user-friendly grievance procedure. All staff should be made aware of the grievance procedure and it must be explained to everyone.
The grievance procedure will allow any issue or dispute to be raised with the next tier of management so that the disputes can be resolved before they become a vitriolic fight. No staff member wants to put their job in jeopardy at this stage in South Africa and no employer wants to spend money, time and effort on disputes that have escalated beyond a particular department.
The Department of Employment and Labour offers numerous courses through its various entities. Many businesses would be wise to multi-skill all their staff members so that the staff members can stand in for anyone else and could be multi-tasked during this period when the workforce is not being expanded.
My understanding is that the various commissioners within the Department of Labour are going to ramp up the training lay-off scheme and are going to ensure that the training is relevant to the Fourth Industrial Revolution. Many have no computer skills and now is an appropriate time to at least get a rudimentary education on how these skills can help your personal career.
The greater the skill set an employee has, the more resilient they are to possible dismissal. A highly skilled workforce is not only desirable for the employer, but is an extremely valuable asset for South Africa.
* Michael Bagraim is the DA's deputy spokesperson for Employment and Labour, and a labour lawyer.
** The views expressed here are not necessarily those of Independent Media.