Keynote address by the Minister of Labour, Mildred Oliphant, on the occasion of the inaugural Essential Services Committee Stakeholder Conference held at Birchwood Conference Centre in Boksburg, Gauteng
Programme Director,
Director General of the Department of Labour; Mr Lamati,
Senior Officials of the department of Labour here present,
Chairperson of the ESC; Adv Bono,
Deputy Chairperson; Ms Nkopane,
Members of the ESC,
Chairperson of the CCMA; Mr Dube,
Executive Director of the CCMA; Mr Morajane,
Executive Secretary of SATUCC; Mr Muneku,
Leaders of our Social Partners, Business, Labour and the Society at Large,
Distinguished guests,
Ladies and gentlemen.
Thank you for inviting me to be part of this very first stakeholder Essential Services dialogue Conference. I am deeply honoured to have been asked to deliver a keynote address this morning, and I hope it will contribute to your discussions as you shape the road map on how to deliver on your mandate. A very difficult mandate I must add.
The timing of your conference could not have been more apt, given the fact that it comes against the backdrop of the recently amended Labour Laws and more specifically, the Sections that deal with the Architecture and authority of the Essential Services Committee. We know to the extent that the recent amendments seek to strengthen the role of the ESC, which these may lead to all kinds of Court challenges.
I suspect that the labour lawyers and Practioners in this world of work are, since the advent of the recent amendments, having a field day seeking to find legally sound interpretation of the new amendments.
There will be those who will approach the Courts seeking to establish case law to strengthen your new scope and authority, equally there will also be those who will be running to Courts to limit the scope of what you can do and make your job even more difficult than it already is.
Programme Director, we all know that the right to strike is a constitutional right, and an emotional one for that matter.
We also know that the Labour Relations Act does contemplate restrictions on this right in respect of those workers who are engaged in designated essential services. I must therefore confess upfront that your job is not an easy one. You are placed between the Constitutional right to strike and the Constitutional right of citizens to receive essential services. In fact you are being asked to limit the constitutional right to strike in the interest of an equally important constitutional right of citizens to receive essential services.
It is, I must reiterate, an extremely delicate balancing act that is required of you. Well I suppose when the Committee members accepted the appointment to the ESC, they knew what they were getting themselves into. I hope you have a thick skin to withstand the critics who will be throwing all kinds of stuff your way.
Ladies and gentlemen, designating a service or any part of a service, as an essential service, is a hotly contested terrain, not only in South Africa, but globally. The Essential Services is a dynamic world of work and it is always evolving, what is important for us is to stay in touch and to keep up with the developments.
Trade Unions have argued that the designation of a sector or service as an essential service is unconstitutional, in that such a designation takes away, or severely limit the rights of workers to strike. While this assertion is by and large correct, we must not lose sight of the fact our law does find the delicate balance in that, it provides for additional mechanisms which neutralise what may seem to be a blanket restriction of the right to strike.
The provision in the labour law that workers in a designated essential service, can procedurally embark on strike action, provided that certain agreements are first put in place; that collective agreements can regulate the minimum services in the event of a strike, are useful balancing instruments in this case.
The recent amendments to the Labour Relations Act were carefully thought out, and they do bring clarity to some of the ambiguities that existed in the past. The extension of the scope and authority of the Essential Services Committee will act as a catalyst in instances where parties are unable to find one another on their own. The challenge that confronted the ESC in the past, in the form of filibustering between the parties every time an exercise to reach a service level agreement is pursued, is being dealt with in the new amendments.
Those who are familiar with the debates around putting in place minimum service level agreement will know that the trade Unions’ starting point is that all workers must be allowed to exercise their right to strike without any limitations. On the other hand, the employers would, as their starting point, argue that all workers in the designated essential services should be barred from engaging in a strike. This presents a stalemate even before you start talking.
Given that there are not many minimum service level agreements that have been ratified by the ESC, since its inception, demonstrates the difficult nature of the task, and that it is not always possible to moderate the limitation of the right to strike by a mere designation of a service as essential. It requires a commitment and recognition of the importance of this legal instrument.
The other dilemma for both the employers and workers in the designated essential services is that employers are not too keen to use a stick approach against striking workers. By the same token, the trade unions see minimum service level agreements as a tool to divide the workforce between striking and non-striking workers. This is compounded by the no-work no pay principle for those partaking in the strike against those who will be entitled to remuneration, by virtue of being barred from striking. They see this as a ploy to curtail solidarity among workers.
This leads to all sorts of problems for non-striking workers, including being labelled as free riders as they ultimately benefit from whatever is achieved through the strike action. Some of them are wrongfully labelled as scabs and even worse as “amagundane’ or amajelatuku, for no fault of their own.
Just imagine the challenge it poses to the union leadership and employers alike, to select who should or should not take part in a strike? This is not to say this should not be done, but I am merely under-scoring the point that compliances with the provisions of essential services will require more than just the elegant formulation of the law, but a commitment, and the appreciation of why this is necessary. Once the leadership understands and appreciates its necessity, perhaps there will be a general acceptance that it is a necessary headache if it is a headache in the first place.
There have been cases where non-striking workers, as a consequence of a minimum service level agreement, refuse to be separated from their comrades, notwithstanding the obligations in law and the minimum service level agreements where they exist. This in trade union terms is called solidarity and in my days as a trade unionist we would sum it up in a principle called “An injury to one is an injury to all.” Having said that, I fully subscribe to the principle of the existing dispensation on essential services and I can defend it with ease. Therefore I am merely raising these polemics to demonstrate that the work of ESC is by no means an easy assignment.
If you add the adversarial nature and the history of Labour relations evolution in South Africa, coupled with the motions associated with the right to strike, the task of the ESC becomes even more difficult.
Those who have been following the recent debates at the ILO around the right to strike will attest to the fact that at times the emotions ran high between the employer group and labour. It is therefore not unique to South Africa that the debate that seeks to curtail the right to strike, no matter how rational the reasons may be, will always attract emotions. It is even more complicated for our country given the ugly journey of our labour relations evolution.
I must also raise a concern about the tendency of our social partners to sign-on on issues in the ILO, but when they get back home, they develop second thoughts. It is also obvious that your representatives are not fully briefed about the decisions that are taken at international level.
Let me also emphasise the need for the ESC to train the leadership in those services that are designated as essential, so that they is better understanding and the implications of being designated and how they could leverage the benefits on this front and avoid being caught off-guard.
Programme Director, we must therefore examine as to what extent are these dynamic the source of poor or non-compliance with the law in this respect? What can be done to achieve the paradigm that is necessary for optimum compliance to obtain?
These are but some of the complexities in the essential services world of work, and I guess it is the nature of the beast that we are dealing with. Maybe it will be appropriate that this conference adopts a “Kariga Mombe” approach to these difficult challenges, which means "taking the bull by the horns" in the Shona language of Zimbabwe.
Ladies and Gentlemen, noting that strikes in essential services are unprotected under the LRA; which means that workers can be dismissed for misconduct if they embark on unregulated strike action.
It is worth noting that both unions and their members can even be held liable for damages and the Labour Court may also interdict strikes in essential services or any act which is deemed to be in furtherance of such strikes.
It is remarkable though that employers generally speaking, appear to be reluctant to resort to these actions for fear of inciting higher levels of aggression from the unions, maybe. Given the fact that no other penalties – administrative or criminal – can be imposed against striking workers, essential services workers, apart from a loss of remuneration, have little as a way of providing a dis-incentive for workers in these services to go on strike. So what is to be done Ladies and Gentlemen? Is the question that requires careful and level-headed attention. What kind of incentives that are needed to promote compliance and possible disincentives to discourage non-compliance, the carrot and stick, so to speak?
Some argue that the “carrot” approach perpetuates non-compliance as it tends to be non-punitive in nature; similarly, others argue that the “stick” approach has its own unintended consequences as it tends to deepen adversarialism and undesirable behaviours during strike.
Is being mechanical in our application of the law, and turning a blind eye to these complexities, the correct approach to achieve full compliance?
Is the nature of the task at hand, such that it requires all of us to think more creatively, perhaps focus more on the spirit of the law, rather than an exclusive preoccupation with the letter of the law? Do we need to nudge the parties to develop and agree on a shared vision on how to make the essential services provisions live up to the intended purpose?
In the past, the voluntary nature of minimum service agreements and the inability of the ESC to nudge parties to agree on minimum services or, in the absence of agreement, to make binding proposals on minimum services, was the culprit which rendered the legal instrument highly inefficient. However we all know that the recent amendments to the LRA provide the much-needed interventions and deals with this weakness that existed in the past.
Whilst the ESC is still required to ratify collective agreements for minimum services, now it has powers to determine the minimum services required to be maintained in an essential service, where the parties fail to do so. As to why the parties do not take full advantage of crafting minimum services through collective agreements, as a way of minimising the limitation of strikes in the designated essential services, is mind-boggling.
Well, it is still early days to make any conclusive observations on whether or not the new provisions are yielding the desired results.
However this conference provides an excellent platform to analyse the impact of the new instruments, all-be-it at this early stage. I guess the inputs from the line-up of speakers in this conference will give us a sense of the current landscape, what is working and areas that require special attention. The panel discussion that will follow later, will also enrich the debate and by extension help shape the conclusions of this conference.
Programme Director, it is often said that if you want to learn how to craft best policies, go to South Africa, equally they also say that if you want to learn how not to implement policies, you must also go to South Africa. This is an unfortunate reputation I dare say, and I am confident that this conference will help to redeem us.
The Essential Services Section in our labour law is a classic example where its architecture is ranked among the best in the world, yet we are not reaping the full dividends simply because we are not so great on the implementation front. Once I am optimistic that this conference is the genesis of our journey to change the way of doing things.
Let me conclude by paraphrasing Don Oswald who once said, Acknowledging that you have a problem is the first step to finding a lasting solution. He says, you can’t solve a problem until you admit you have one. It is very common for most of us to ignore a problem in the hope that it might just go away?
But let’s be honest, how often does a problem just go away? Well you can ignore a problem, but that doesn’t mean it has been resolved or gone away.
You certainly can’t solve a problem by pretending there isn’t one. Nor can you find a resolution by making excuses. First you must admit there is a problem. Then you can explore what the causes are.
Let me congratulate the leadership and members of the Essential Services Committee for convening this conference. Let us use this meeting of minds as the first step of trying to find lasting solutions to our challenges in Essential Services world of work. Whilst we have a reputation of being good in talking in conferences and not so great in implementing our action plans, let this conference lead to the change that we want to see. It must not be an “on your marks, get set, instead of go, we go back to on your marks. This is what people say South Africans do, when we have a problem, we set up a Committee and when the committee fails we set up another committee to why that committee failed.
I wish you all the best in your deliberations, and please note that the value of this conference will be judged on the positive impact of the decisions we take and not the number of pages of the reports that will be produced.
As a parting shot, let me leave you with a paraphrase of one of Albert Einstein’s famous quotes, (Nothing destroys respect for government and the law of the land, than passing laws which cannot be enforced).
Indeed I appointed the current members of the Essential Services Committee after being satisfied that indeed they are equal to the task. Please show us that you are indeed fit for the job.
I thank you!
