speech by...
Minister of Labour Membathisi Mdladlana
at the launch of the amendments to the Labour Relations Act and Basic Conditions of Employment Act
Volkswagen Marketing Conference Centre Midrad
29 July 2002

Master of ceremonies, distinguished guests, ladies and gentlemen.

It is a pleasure for me to deliver an opening address on an occasion as important as this; the launch of the significant set of amendments to Labour Relations Act and Basic Conditions of Employment Act ahead of their promulgation on the 1st of August. The amendments are extremely significant for workers and employers, and are testament to the success of constructive social dialogue engaged in by these sectors and government.

In his state of the nation address of February 2000, President Thabo Mbeki, declared,

" a review of the labour market policies undertaken by the government has concluded that certain aspects of the legislative instruments aimed at giving effect to our labour market policies have led to unintended consequences, and for that reason, to ensure that we address simultaneously such issues as fair labour standards and the fostering of economic growth and job creation, amendments to certain provision of the Labour relations Act, Basic Conditions of Employment Act and the Insolvency Act, will be introduced this year."

Today ladies and gentlemen we are finalising the implementation process as promised by our President. The promulgation of the amendments takes place seven days after the three-week strike by municipal workers. Initially, the strike was unpleasant as a few individuals trashed the streets of our towns and employers dug their heels.

As the Minister of Labour I had to direct the CEO of CCMA to intervene and call the parties to the negotiating table, to resolve their dispute through mediation instead of public grandstanding and pronouncements through the media. It took time, but the parties finally resolved the dispute and workers are back at work. Our cities are now clean. This is an indication that social dialogue, which our labour market policies promote is the most effective way to resolve conflict. While the trashing of streets is deeply deplorable and the loss of two lives lamentable, I would like to congratulate the parties to the dispute for heeding to my call to sit down and talk. Our laws provide for opportunities to dialogue and find agreement without resorting to acrimonious exchanges and hostile posturing; and for this reason I would appeal to parties to any industrial dispute to talk and talk and talk until a resolution is found. I must point out though that the successful resolution of this dispute and many others that did not result in industrial action could not have been possible 8 years ago because the country did not have effective dispute resolution instruments and institutions introduced by our government. As government we have developed new policy instruments and institutions that are aimed at promoting workplace peace and stability.

How did we get to where we are? Working in partnership with business and labour

The review process started in 1999, when I announced my intentions to amend the LRA and BCEA. Key stakeholders including labour, business and community constituency at Nedlac were consulted. The review concluded that the fundamental of our labour market policy were sound and that the overall thrust of our legislative framework was correct. However, it did identify aspects of our labour law, which would require amendments to meet the following objectives:

· Improve the application of the Labour Relations Act and Basic Conditions Act · Ensure the effective alignment of our laws with the changing labour market environment · Address unintended consequences of some of the provisions · And increase the sensitivity of our legal framework to the imperative to create jobs also to respond to the imperative of small business promotions and development · Improving protection of vulnerable workers and · reduction of negative perceptions of investors

Ladies and gentlemen certain imperatives cannot be ignored if we are to realise the objectives of employment creation and balanced labour market regulation. These are: certainty, peace, stability, clear policy direction, well developed strategies, political commitment and social partner buy-in respect of such strategies and mechanism to ensure the successful implementation of agreed upon strategies. The challenge of employment creation has reached a stage where neither government, labour nor business can afford to spare any effort towards finding a lasting solution. The assumption that if labour laws did not exist we would have a booming economy or if labour laws were tougher and stronger we would have more jobs is incorrect. If this was true, then our job would be an easy one. But the fact of the matter is that we are placing far too much weight on the role of the labour laws and labour market regulation in relation to employment creation. The new labour laws have not created the unemployment that this country is facing. Unemployment began long before the new laws were passed and promulgated. Our laws are sufficiently flexible.

Today, the amendments we are to promulgate on August 1, 2002 enjoy substantial support from organised labour and organized business. They include something for everyone. This is the result of our legislative framework, which encourages rigorous debates, discussions and social dialogue on critical and challenging issues that affect our labour market policy. Once again ladies and gentlemen the players in our labour market, organised business and organised labour have shown their commitment to joint problem solving, together with government, in order to promote labour market efficiency and decent labour standards.

On release of those bills I encouraged all interested parties to constructively engage in negotiations that would do us proud. I would like now to briefly record the process that the Bills followed. First, I never anticipated that the process would take 18 months to complete, but amazingly that is what happened. However, it is the process that unfolded that is significant and demonstrates the ability of the stakeholders to work in partnership with government to constructively arrive at a mutual understanding.

When the Bills were referred to Nedlac, it appeared that an impasse at Nedlac, similar to the one in 1995, would prevent agreement. The establishment of the Millennium Labour Council also came handy in that the captains of industry and leaders of unions in the said institution placed the Labour Law Amendment issue on their agenda.

I would like to acknowledge the contribution that the Millennium Labour Council made in the process in that it assisted in developing a framework for the tough negotiations that followed at Nedlac.

According to laws passed by the new government, policy initiatives, which are likely to have far reaching effects on the socio-economic environment, are to be discussed at Nedlac. As such I never take a bill to Parliament unless it has been thoroughly debated at Nedlac. We imposed this burden on ourselves with the intention of arriving at a meaningful consensus and to ensure that all parties are brought on board. Experience has taught us that this approach ensures that we arrive at far reaching and sustainable solutions to similarly irresolvable problems. It is after all these very principles on which our labour law is founded. In essence the labour legislation is a social contract between all stakeholders. Strong social partnership brings with it many advantages: labour laws that are agreed upon by all major players have high levels of credibility and legitimacy and are more likely to be implemented and enforced with relative ease.

When the amendments were approved by Cabinet I said that they contained in them; "something for everyone". I stand by those words today, as the very nature of the process that we arrived at in tabling these amendments illustrates just that.

It would be dishonest of me to suggest that everybody is happy with everything contained in the amendment. Given the fact that labour market policy is a contested terrain, it has never been our intention to please everyone. Our intention has been and remains that of ensuring that we develop a package of labour market policies that are sound and that enjoy the broad support of all key stakeholders. This we have achieved and the evidence to support my assertion is contained in the Millenium Labour Council report and the Nedlac report. The unprecedented support of these amendments by all political parties in the National Assembly and the National Council of Provinces was a cherry on the cake. Indeed, many of them were unhappy about one clause or another but they are all on record as having said that this was the best package under the circumstances and that it was something they could live with.

What do the set amendments entail?

It is not my intention to address you on all the technical aspects of the amendments save to indicate that they seek to:

· Improve the functioning of Collective Bargaining and Bargaining Councils · Increase the effectiveness and efficiency of the CCMA, particularly in relation to its ability to serve small employers and vulnerable workers · Bring stability to the Labour Court in respect of the status of judges. · Improve procedures in the event of dismissals including providing for probation and introducing a fairer system of compensation in the event of unfair dismissal. · Significantly revamp the procedures in the event of retrenchments · Provide certainty and clarity as to the transfer of workers contracts of employment when a company changes hands. · Address problems workers face in the event of an insolvency · Prevent the abuse of workers who are forced to sign contracts which turn them into independent contractors when they are in fact employees · Improve the balance between labour market efficiency and decent labour standards in respect of the Basic Conditions of Employment Act · Improve the application of the Basic Conditions of Employment Act: and finally · Enable the Registrar of Labour Relations to act against bogus unions and employer organisations.

Bargaining councils are enabled to service employer and employee parties better and concerns of small businesses by providing an annual report to the Registrar Labour relations of their activities.

Vulnerable workers and small business employers will now have access to a speedier one-stop process of conciliation and arbitration for individual unfair dismissal and unfair labour practices. This con-arb process will allow conciliation and arbitration to take place as a continuous process on the same day.

In order to limit abuse the Registrar of Labour Relations has powers to wind up and cancel the registration of labour organisations and employer organisations that have ceased to operate as such. Parties to a retrenchment dispute are obliged to engage in a process of meaningful interaction or as the Act says" engage in a joint consensus seeking process" utilising the service of facilitator from the CCMA. If the process fail workers in companies that employ so or above can elect whether they want to go on strike or take their dispute to the Labour Court. The Labour Court must consider whether the dismissal was in fact a retrenchment and whether it was operationally justifiable.

In conclusion ladies and gentlemen, I would like to pay tribute to those who made these set of significant amendments possible. In particular I would like to thank organised business and organized labour for their demonstrable capacity and willingness to rise above their immediate sectarian interests and put South Africa first. My sincere thanks also go to the relevant Parliamentary Committees that processed the bills and effected changes they deemed necessary. Lastly, I remain indebted to Nedlac and the overworked officials of my department who toiled day and night in ensuring that we get where we are. I now beseech social partners to implement these laws and give us feedback on their experiences. My department remains committed to assisting those who are still struggling to find their way around the new law. But, I also want to sound a word of warning to those who are committed to disregarding laws passed by a democratically elected Parliament. To you I say we shall not be deterred from dealing with you accordingly.

I thank you.