Transcript NEDLAC's role in achieving Justice on the Job

Labour Law Conference
“Justice in Jobs”
Role of Nedlac
Input by Herbert Mkhize
12 August 2010
What is Justice?
•
There is no justice in the world, none, However to be fair, there are few men and women and
institutions that are making genuine efforts or striving to achieve this elusive ideal called justice.
•
The battle of ideas and theories about “what is justice” has been raging for centuries and there is no
sign that this battle is about to end.
•
People served jail terms and continue to be jailed and even pay the highest price for standing up for
what they consider to be injustices.
•
Some sections of the world society thrives on injustices, you take away injustice, their dreams will
come to an abrupt end.
•
Injustices are meted out against strangers, against people who do not share our beliefs, people who
do not dress like us, people who do not look like us, race religion, gender, not of same standing in
the society like us, who do not speak our language, relatives and even our own children.
•
For ordinary people Justice remains a dream unfulfilled. Some even refer to it as a relative term. It
depends on who you know, your standing in the society, how much money you have, and so on.
Justice
•
For a word that's used so often, and its precise definition is still a topic of debate for philosophers,
theologians and legislators, is mind-boggling.
•
In any situation, be it in a courtroom, at the workplace or in a queue at the local pub, we want to be
treated fairly.
•
We shouldn't be judged more harshly because of our skin color, we shouldn't be paid any less
because of our gender, and we shouldn't have to wait longer for a drink because of what we're
wearing. We feel we deserve equal and impartial treatment.
•
Love thy neighbour as though loved thyself; Do to others as you would like them to do unto you.
•
The struggle for equal rights is far from being over. Aluta Continua!
Justice in Jobs
•
Justice on the job will only becomes an issue if you are employed by somebody else, because if you
are self employed, it is inconceivable that you can mete out injustice to yourself.
•
More often than not, the majority of workers work for people with whom they have little or nothing in
common; interests, race, religion, language, beliefs, custom, standing in the society, the list goes on
•
If these are some of the key subtle or even overt drivers of injustices, then winning the battle against
injustices on the job is not even visible in the distant horizon.
•
As the inherent competing interests in the workplace and the often adversarial nature of the employer
employee relationship play itself out, justice on the job becomes the casualty.
•
Justice in Jobs is practically utopian as it competes with the very basic principle of the business of
doing business both in public and private sectors.
•
Just in Jobs cant be captured better than the “Decent Work Project of the ILO.
In Search of Justice on the Job
On December 10, 1948 the General Assembly of the United Nations declared in the Universal Human
rights Charter … almost 62 years ago.
Article 23 :
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Everyone has the right to work, to free choice of employment, to just and favorable conditions of
work and to protection against unemployment.
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Everyone, without any discrimination, has the right to equal pay for equal work.
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Everyone who works has the right to just and favorable remuneration ensuring for himself and his
family an existence worthy of human dignity, and supplemented, if necessary, by other means of
social protection.
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Everyone has the right to form and to join trade unions for the protection of his interests.
•
Recent movements have also been made to encourage countries to promote labor rights at the
international level through fair trade.
Building Blocks for Social Justice
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ILO Convention No. 29 on forced labour [10 June 1930]
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ILO Convention No. 87 : Freedom of Association and Protection of the Right to Organise, [17 June 1948]
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ILO Convention No. 98 : Right to Organise and Collective Bargaining Convention, [8 June 1949]
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ILO Convention No. 100 : Equal Remuneration Convention, [6 June 1951]
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ILO Convention No. 102 : Social Security (Minimum Standards) Convention, [4 June 1952]
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ILO Convention No. 105 : Abolition of Forced Labour Convention, [5 June 1957]
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ILO Convention No. 158 : Termination of Employment Convention. [2 June 1982]
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ILO Declaration on Social Justice for a Fair Globalization [ Ninety-seventh Session,]
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Freedom Charter: The People Shall Share in the Country's Wealth! : There Shall be Work and Security!
[June 1955]
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Chapter 2 [1996]of the Supreme Law of the Land, Constitution of the Republic sub-section 7-39 is the
Bill of Rights – the essence and in some instances the text of the ILO core labour rights Conventions are
succinctly captured under this chapter.
•
Nedlac Act No. 35 of 1994
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LRA, BCEA, Employment Equity Act , SKILLS Development Act, etc.
The Advent of Institutionalised Social Dialogue in South
Africa marks the new beginning to “Justice on the Job”
Nedlac is the seat of National social dialogue in South Africa and it is, in many
respects, a uniquely South African model of social dialogue.
It was set up through an Act of Parliament – The National Economic Development
and Labour Council Act, Act 35 of 1994.
The Council is a representative and a consensus-seeking body where the parties to
the Council seek to reach agreement on policy matters through negotiation and
discussion based on mandates.
One of the most striking features of our system of governance is to ensure
consultation and dialogue in order to build not only a shared national vision, but
also in actual practice to attain unity of purpose and action
Building Blocks for Justice in Jobs
The Nedlac founding declaration defined three main challenges for the
organisation as follows:
–
Sustainable economic growth - to facilitate wealth creation: as a
means of financing social programmes; as a spur to attracting
investment; and as the key way of absorbing many more people into
well-paying jobs.
–
Greater social equity - both at the workplace and in the
communities: to ensure that the large-scale inequalities are
adequately addressed, and that society provides, at least, for all the
basic needs of its people.
–
Increased participation - by all major stakeholders, in economic
decision-making, at national - company and shop-floor level - to
foster cooperation in the production of wealth and its equitable
distribution.
Building enduring
partnerships
– Promoting a shared
vision of South
Africa’s growth and
development strategy,
to frame sector and
developmental
agreements and lay
the basis for
partnerships in action.
Addressing urgent
challenges –
Selecting from many
possible
interventions, those
which hold the
promise of the
greatest possible
impact in the shortest
possible time
Lending a hand
– Securing the
commitment and
active participation of
all constituencies in
those areas identified
for prioritised action.
Nedlac’s Remit
Nedlac’s ideals
Building partnerships through policies that seek;
•
to tackle the urgent challenges facing the economy and to build an enduring
partnership that would help build a prosperous SA.
•
to develop a common vision to make South Africa the leading emerging
market and destination of first choice for investors whilst retaining and
expanding social equity and fair labour standards.
•
to build sustainable partnerships that deliver on the key challenges facing the
country on the social and economic fronts.
•
to promote and mobilise investments for growth and sustainable jobs, better
jobs and decent work for all
•
to eradicate all forms of poverty and addressing the legacy of underdevelopment and
•
to strategically engage globalisation to the best advantage of the country
NEDLAC’S ENGINE ROOM
LABOUR MARKET CHAMBER
6 Labour + 6 alt
6 Business + 6 alt
6 Government + 6 alt
(LEAD GOVT DEPT-LABOUR)
TRADE AND INDUSTRY CHAMBER
6 Labour + 6 alt
6 Government + 6 alt
6 Business + 6 alt
(LEAD GOVT DEPT: TRADE & INDUSTRY)
STANDING COMMITTEES
-SECTION 77
-DEMARCATIONS
-TESELICO
PUBLIC FINANCE AND MONETARY
POLICY CHAMBER
6 LABOUR + 6 alt
6 GOVERNMENT + 6 alt
6 BUSINESS + 6 alt
LEAD GOVT DEPT: NATIONAL
TREASURY
DEVELOPMENT CHAMBER
6 Labour + 6 alt
6 Government + 6 alt
6 Business + 6 alt
6 Community + 6 alt
LEAD GOVT DEPT: PUBLIC WORKS
NEDLAC PRINCIPALS
Government
Minister of Public
Works
J Doidge
Minister of
Finance
P Gordhan
Minister of Labour
M Mdladlana
LABOUR
Minister of Trade and
Industry
Dr R Davies
BUSINESS
Dennis George
General Secretary
FEDUSA
Manene Samela
General Secretary
NACTU
Zwelinzima Vavi
General Secretary
COSATU
Futhi Mtoba
President of Busa
Andre Lambrecht
National Chairperson
COMMUNITY
SANCO
Laura Kganyago
WNC
Mike Ka Toni
DPSA
Thulani
Tshefuta
OVERALL CONVENORS
Jimmy Manyi
Government
Bheki Ntshalintshali
Labour
Dr Lotter
Business
Lulama Nare
Community
NEDLAC STRUCTURE
MODUS OPERANDI
Negotiations that aim to deliver formal consensus-based agreements on the economic and
social fronts.
Consultations that aim at developing policy prior to it being tabled for negotiation or
implemented.
Information sharing, workshops, roundtable discussions and seminars that report on and
assess the implementation of social and economic policies.
Research that guides the formulation and implementation of social and economic policy.
Resolving socio-economic disputes in terms of section 77 of the LRA.
Key Achievements to date
Created a forum in which the social partners have been able to work on their relationships and
build some level of trust;
Built an important instrument to strengthen democratic governance and transparency in the
decision-making process;
Provided the space for the evolution of a new approach to policymaking and changes to
legislation, thereby contributing towards better and more democratic policies that enjoy wide
acceptance;
Given birth to a range of tripartite bodies and thereby promoted the concept of social
dialogue;
Created a central forum where greater consensus has been achieved amongst key stakeholders
on a diverse range of policy issues;.
Key Achievements to date
Contributed to the development of a sophisticated and modern industrial relations system;
Helped to ensure a major investment programme in skills development;
Spearheaded initiatives such as the Proudly South African Campaign, Workplace Challenge;
Growth and Development Summit; South Africa’s Response to the Global Economic Crisis,
National Electricity Accord, amongst others.
Minimised, and in some instances even completely eliminated, the prospect of the national
policies being challenged through the Courts.
Process Flow
Green Paper
[Conceptual policy
proposal]
White Paper
[Policy Proposal]
Draft Bill
[Before being sent to
parliament]
Developing the Work Program & Process
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Tabling of policy proposals is governed by an agreed Protocol for tabling and consideration of issues
in Nedlac.
•
Government tables its programmes of policy and legislation in Nedlac – often at the beginning of the
first quarter.
•
Labour, Business and the Community constituencies likewise table their own policy issues for
inclusion in the Work programme.
•
Issues are tabled at least three months before sign-off is required however the Protocol has provisions
for issues that require quicker sign-off.
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Parties agree at the outset whether the issue is being tabled only for consultations or negotiations, or
both.
•
Parties then agree on a process and timeframes to expedite the matter.
Developing the Work Program & Process
• In cases where the issue falls within the terms of reference of more than one chamber, a
joint negotiation committee or task team is established.
• There may also be instances where the intervention of the relevant Minister may be
required.
• In the event that Government indicates that giving effect to the policy require legislation,
then Government tables the draft Bill at Nedlac for consideration.
• Once the process of engagement on the policy has been finalised, a Nedlac report is
prepared for ratification by the Nedlac Executive Council.
Developing the Work Program & Process
•
The Nedlac report, after sign-off by the relevant Nedlac Executive Council, is sent to the relevant
Minister who in turn tables it in Parliament.
•
Parties are bound not to re-open discussion in Parliament on any area where agreement was reached
in Nedlac.
•
However parties have the right to raise issues in Parliament on which there had been no agreement, or
on which a Nedlac agreement was silent.
•
If parties raise issues during the Parliamentary process on which the Nedlac agreement was silent, or
new issues, which go beyond the reservations captured in the Nedlac report, they inform Nedlac of
such issues for the record.
•
Appears before the National Assembly Portfolio Committee on Labour and the NCOP Select
Committee on Labour at least twice a year. [Mandatory]
•
Nedlac does from time to time brief other Parliamentary Portfolio Committees on its work, albeit on
an issue driven basis.
Key Observations
•
Inherent in social dialogue is that it takes time for it to produce meaningful consensus that
ultimately leads to real partnership.
•
Nedlac has acted as an important yardstick to measure the extent to which policies could find
resonance with the needs of the citizens.
•
Therefore it follows that where social partners find absolute consensus or sufficient consensus
on the policy thrust, ownership of such policies is co-shared.
•
It would therefore be correct to assume that if government tables a policy that does not solicit
broader consensus among the key social partners, that should be taken very seriously by the
legislators.
•
This should also inform legislators of the potential implementation difficulties that the policy
would likely to suffer if signed off;
•
This arguably makes implementation much easier and most of all prevents unnecessary legal
challenges and squabbles.
Key Issues In Each Of The Policy Work Streams
• Management Committee:
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–
–
–
–
–
–
–
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Comprehensive Social Security Policy framework & Retirement Refunds reforms
Energy – Security of supply
Decent Work Country Programme
Global Jobs Pact
Superior Courts Bill
National Poverty line & Poverty Measures
Global Economic Crisis
New growth path
Ant-Poverty Strategy
Key Issues In Each Of The Policy Work Streams
• Labour Market Policy Work Stream:
– Proposed Wage Subsidy
– Atypical Forms of employment & Labour Broking
– Labour Market policy review
• UIF
• LRA
• BCEA
• EEA
– Social plan
– Code of Good Practice on EPWP
– Immigration Act
– Insolvency
Key Issues In Each Of The Policy Work Streams
• Public Finance and Monetary Policy:
–
–
–
–
–
–
–
Fiscal Policy
Monetary Policy
Savings
Financial Sector Charter Council
MTBPS
Infrastructure Investment Program
WTO – Derivatives
Key Issues In Each Of The Policy Work Streams
• Trade and Industry:
–
–
–
–
–
–
–
–
Co-operatives Amendment Bill
Preferential Procurement
Intellectual Property; Protection of Indigenous Knowledge
Customs Control and Customs Duties
Administered Prices
IPAP
Looming Water Crisis
Regional Investments
Key Issues In Each Of The Policy Work Streams
• Trade and Industry:
– Fridge Studies:
•
•
•
•
•
•
•
Import Parity Pricing
Electricity Tariffs – Cushioning the Poor
Retail Sector Transformation
Overview of the economic instruments to support climate change mitigation
Customs Fraud
Essential Oils Study
Study on Chemicals
Key Issues In Each Of The Policy Work Streams
• Trade and Industry:
– Trade
• WTO – [Inter Alia; Doha, NAMA, Agriculture and Services]
• SACU – EFTA
• SACU –USA
• SACU – MERCUSOUR
• SACU – INDIA
• SADC – Protocol Review
• SADC – EAC- COMESA
• SADC – EPA
• Bilateral Investment Treaties
• NTBs
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Key Issues In Each Of The Policy Work Streams
• Development Policy Work stream:
– Expanded Public Works Program
– Local government
• Service delivery
• Value for money
– National Youth Development
– Public Transport strategy
• Rural Infrastructure
– Xenophobia
– National Health Scheme
– Education strategy
– Community care workers conditions
– Climate Change
KEY CHALLENGES
•
The agenda becoming too technical and detail driven.
•
Experts more than political leadership drive the processes, hence the unintended consequence
of unmandated positions at times and or difficulties' to get buy-in on agreements.
•
Decline in seniority and authority of delegates who serve in the negotiating chambers, task
teams.
•
Sequencing of the policy making processes at times problematic
•
Work programme difficult to follow through. (Trying to do everything vs. 80:20 approach.
•
Long lead times for mandating and report back.
•
Uneven levels of capacity
KEY CHALLENGES
Inability of the Institution to attract the requisite skills due to financial constraints.
Some, albeit few cases of issues being tabled at NEDLAC at short notice.
The disconnect between the National Social Dialogue outcomes with what happens at
Provincial and Local level.
Incoherent policy objectives - lack of synergy.
The challenge of policies that straddles more than one Government Department
Thank You