Labour law challenges highlighted at conference LexisNexis human resources director Vuyo Dwane handing over the anti-human trafficking legislation compendium to Brigadier Leon Gossman at the 25th Annual Labour Law Conference held in Johannesburg in early August. ‘Decent work in a sustainable workplace’ was the theme of the 25th Annual Labour Law Conference, which took place from 1 to 3 August in Johannesburg. Topics covered at the conference, which was hosted by the Universities of Cape Town, Witwatersrand and KwaZulu-Natal and facilitated by LexisNexis, included health and safety in the workplace and amendments to the Labour Relations Act 66 of 1995 (LRA) and the Basic Conditions of Employment Act 75 of 1997 (BCEA). In a welcoming speech, Judge President of the Labour Court and the Labour Appeal Court, Judge Dunstan Mlambo, said that although the majority of poor people living in the developing world had jobs, these jobs were predominantly in the informal economy, where conditions were usually insecure and income was inadequate. ‘Yes, we need employment, but we need decent work that uplifts the individual’s dignity and spirit and gives him or her a sense of pride in being able to do an honest day’s work at decent pay,’ he said. Judge Mlambo said that since the enactment of the LRA, there had been ‘extensive’ changes in the local labour market as work had become increasingly diverse, with a greater proportion of work being performed by workers in informal employment. He said that there was a need to re-evaluate South Africa’s labour laws to determine the extent to which they provided employees with decent work. Judge Mlambo added that the increase in informal employment had led to a growing number of workers not being protected or being inadequately protected by current labour laws. He said that many companies had restructured in order to reduce their dependence on standard employment or had adopted strategies to minimise or avoid labour law.
‘These strategies include outsourcing, the use of fixed term contracts, temporary and part-time work and labour broking,’ he said. He added that research by the Labour Department revealed that the growth of non-standard employment had eroded the quality of labour protection and that labour broking was most commonly used to deprive vulnerable employees of labour law protection. Judge Mlambo said that the LRA needed to be revisited to ensure that workers in triangular employment relationships (where an intermediary administers the employment relationship while the employer exercises control over the worker’s dayto-day activities) were protected, adding that one way of doing so was to ensure that all brokers were registered and that the broker and the client were held jointly and severally liable for compliance with the employer’s obligations under labour law if they each exercised a sufficient degree of control over that employee. Law professor and deputy head of the Labour and Social Security Law Unit at the Nelson Mandela Metropolitan University, Avinash Govindjee, gave a presentation on the role of health and safety in sustaining human capital. He said that the law of health and safety at work was divided into two categories, namely – • laws designed to prevent accidents (such as the Occupational Health and Safety Act 85 of 1993 and the Mine Health and Safety Act 29 of 1996); and • laws designed to compensate victims of accidents at work (such as the Compensation for Occupational Injuries and Diseases Act 130 of 1993 and the Occupational Diseases in Mines and Works Act 78 of 1973). Professor Govindjee said that a combination of health and safety mechanisms, vocational rehabilitation, return-to-work interventions and appropriate compensation payments was required to reduce the incidents and impact of work-related accidents and diseases. Speaking on ‘unpacking the idea of decent work’, director of the International Labour Organisation (ILO) in South Africa, Vic van Vuuren, said that the notion of decent work was ‘captured’ in four strategic objectives, namely –
• maintaining fundamental principles and rights at work and international labour standards; • employment and income opportunities; • social protection and social security; and • social dialogue (negotiation, consultation or an exchange of information and views between government, employer and employee representatives) and tripartism (where these three parties are brought together to jointly shape labour standards, policies and programmes). Mr van Vuuren said that these objectives applied to all workers. The director-general of the Labour Department, Nkosinathi Nhleko, said that 14 years after the promulgation of the Employment Equity Act 55 of 1998 (EEA), much work remained to be done to create more equitable workplaces. He said that while quantity and quality of work had improved, substantive compliance and transformation was slow. Mr Nhleko said that it was possible to achieve the desired objectives of equality and equity, adding that the proposed amendments to the EEA were intended to provide a stimulus for change in the area of employment equity. Mr Nhleko said that the amendments to the EEA would address inter alia: • The slow pace of transformation, as the changes will focus on enforcement and legal proceedings. • Pay equity (equal pay for work of equal value). • The meaning of unfair discrimination, which would be extended to apply to grounds such as race, gender, sex, pregnancy, marital status, colour and age. The amendments would have important implications for workplaces in South Africa, he said, adding that the Labour Department aimed, through implementing the amendments, to refocus on the core purpose of the EEA, which was to achieve equity in the workplace by –
• promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and • implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups in order to ensure their equitable representation in all occupational categories and levels in the workforce. As to the status of the Bill, Mr Nhleko said: ‘Negotiations have been concluded at [the National Economic Development and Labour Council]; legal drafting has commenced and we hope to submit the Employment Equity Amendment Bill to parliament before the end of 2012.’ Anti-human trafficking legislation compendium launched LexisNexis used the opportunity presented by the conference to launch South Africa’s first anti-human trafficking legislation compendium. A copy of the compendium was handed to Brigadier Leon Gossman of the South African Police Service (SAPS) at the launch and a total of 1 000 copies will be donated to government units to assist them with the prevention and prosecution of human trafficking crimes. Some of those that will benefit include the SAPS’ Child Protection Unit, the National Prosecuting Authority, Legal Aid South Africa and the Justice Department. The compendium, which aims to supply information on human trafficking in a coherent and accessible way, consists of a box set of A6-sized pocket books containing South African legislation that impacts on human trafficking and also includes proposed legislation, codes, basic guidelines and explanatory commentary. Nomfundo Manyathi,
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