M Mdladlana: Annual Labour Law Conference

4 July 2007

Theme: Transformation �Expectations and Constraints

Programme Director
Leaders of organised business and labour
Academia
Labour law specialists
Distinguished guests
Ladies and gentlemen

It is a great honour and pleasure to address you on this occasion of the
20th Annual Labour Law Conference. This 20th Conference comes at a critical
time when the ruling party, the African National Congress (ANC), has just had
its national policy conference and taken stock of policies introduced since
1994. When we took over in 1994, we promised and committed ourselves to
ensuring that our society is fully transformed and there is a realisation of a
"better life for all." Through this undertaking and commitment, we created
expectations amongst our people.

At the heart of the policy conference was one question: how are we faring
with our transformation project? We looked at the various policy areas from
economic to social transformation. The discussion documents that informed the
policy conference did acknowledge that whilst progress has been recorded in a
number of areas, there were still areas where we needed to intensify and speed
up the progress.

One area that we looked at was the labour market policy arena, and we all
came to the realisation that this is one terrain that is highly contested. The
legislative and regulatory reforms we introduced since 1995 have been hailed by
some as important victories that would contribute a great deal towards the
transformation of the socio-economic conditions of poor people. Simultaneously,
some have gone to an extent of criticising our regulatory environment as being
rigid and inflexible. There is still not yet empirical evidence that suggest
that the so-called labour market rigidity affects investment in the
country.

From the beginning, we knew that the road to economic and social
transformation is certain to be long and treacherous. Progress on a variety of
government programmes intended to achieve this transformation bears testimony
to this long and winding road. Most strikingly, especially with regards to our
labour market policies, we have one of the most fundamental, well-balanced
regulatory regimes, but we still have a long way to go in ensuring that these
progressive policies are observed in practice. Until we achieve this in
reality, we cannot say with confidence that we have achieved this
transformation.

Transitions by their nature carry with them high expectations, especially
from the historically oppressed and previously marginalised. On the other hand,
a major constraint in achieving transformation may be the very resistance of
the beneficiaries of unjust policies and practices. Should this resistance
prove too much to handle, then transformation is doomed from the outset.

South Africa's democratic dispensation coincided with the phenomenon of
globalisation, virtually dictating to the country what kind of policies we
should adopt if we are to get the support of economically powerful forces. At
that point, a developmental discourse was biased in favour of prioritising
macroeconomic stability, with a higher proportion of the budget channelled
towards debt servicing. Our economy was characterised by poor growth, lower
levels of investment, and slow levels of job creation. At the same time there
were huge development challenges facing our new democracy. These challenges,
left unattended, continue to pose a major risk to the sustenance of our
democracy.

There is no doubt that both the economic and institutional constraints were
significant enough to derail the state's ability to meet the expectations of
the people. Today's state of affairs however paints a very mixed picture of how
we have fared in meeting the expectations of a democratic state.

In his State of the Nation address in February 2004, at the end of the first
decade of our democratic rule, President Thabo Mbeki remarked:

"Together with all other objective observers of social development, we have
always known that our country's blemishes produced by more than three centuries
of colonialism and apartheid could not be removed in one decade. Nevertheless,
we have no hesitation in saying that we have made great advances to ensure the
expansion of the frontiers of human fulfilment, and the continuous extension of
the frontiers of the freedom, of which Nelson Mandela spoke almost ten years
ago."

No successful transition can be achieved by the efforts of governments
alone. Civil society and the business organisation are central in
transformation. These sentiments were also echoed back in 1996 at a meeting
organised by the Carnegie Commission, 'Miracles that Matter,' where it was
concluded that:

"South Africa's long-term political prospects will depend, as in any other
democracy, not only on the government's capacity and willingness to meet the
needs of the people, but also on the capacity and willingness of citizens to
assume their civic responsibilities and obligations."

In the labour market policy arena, a particularly interventionist approach
was necessary, if we were to transform labour relations in the country. This
intervention was not about telling employers what to do, but to put in place a
framework that would fundamentally transform workplace relations in the country
from adversarialism to co-operation and trust, to bring about labour relations
stability. This transformation should however not only be viewed as a
transformation of labour relations narrowly, but a broader transformation of
the judicial system. This still remains a huge challenge, and the realisation
without which as a society we cannot proudly celebrate our freedom. Central to
the transformation of the judiciary is access to justice. As the African
National Congress policy discussion document on the transformation of the
judiciary has highlighted:

"The Constitution guarantees access to courts and other independent
tribunals or forums. Unless ordinary people have access to courts and other
independent forums or tribunals to resolve their disputes, the vision of a
society based on the rule of law as envisaged in the Constitution will not be
realised."

Of importance and interest to most of the law practitioners gathered in this
meeting, one is tempted to look at the case before the Constitutional Court -
which is a true reflection of resistance to transformation. The labour
relations framework we have adopted established institutions to deal with all
the labour and workplace disputes, but some people still decide to take the
labour disputes to high courts or courts delegated to deal with criminal cases.
The case before the Constitutional Court is about the management of labour
disputes and not a criminal matter. We see this case as another example to
challenge the transformation agenda we have put in place. The decision of the
Constitutional Court will have serious implications and ramifications on the
labour dispute institutions and the transformation of the workplace dispute
resolution mechanisms in the country.

To commit government to a transformation project, President Nelson Mandela
echoed these words at the address to the Institute for Democracy in South
Africa (Idasa) in 1995:

"Turning ideal into living reality will, amongst other things, require
undoing the consequences of discriminatory practices of the past, in particular
in employment and education. Affirmative action is a strategy of corrective
action to bring previously disadvantaged people to the same competitive levels
as those who have been advantaged."

Yet it is unbelievable that even today, as a nation we are still debating
the relevance of our employment equity legislation. And I think this is what
provoked Christine Qunta, one of our revered social commentators to say:

"each of us wherever we are, should in a determined way, fight to move
forward and thwart the new push against transformation."

The Commission for Employment Equity was recently chastised for suggesting
that we are still not sufficiently complying with this legislation, as its
Employment Equity Annual Report has shown. Our detractors believe that there is
no need for affirmative action anymore, despite the revelations in the Annual
Report that show that our employment patterns in South Africa continue to
strongly reflect the days before 1994. Despite our repeated assertions that we
need to correct the imbalances of the past - which is central to the
sustainability of our democracy, our detractors continue argue that affirmative
action policies represent 'reverse discrimination.'

Interestingly, even the International Labour Organisation (ILO) still
recognises and emphasises the need for equal opportunity measures in the world
of work. The ILO recently released a global report on the status of employment
equity in the workplace. The report states that:

"The main message of the Global Report is that to tackle discrimination at
work, the creation of more equal societies must become a central goal of
development policies. The promotion of equal opportunities for decent work for
all women and men, irrespective of race, religion, disability, age or sexual
orientation, is one of the means to advance in this direction."

We all know that in our country, there is still no equality of treatment in
workplaces, borne out of past injustices. Our progressive labour market
policies represent but one effort to achieve this social justice. So there is
no other relevant piece of legislation as central as the Employment Equity Act
in the country at this present moment. Work, as noted by a renowned scholar
known as Kahlil Gibran published his most seminal work titled 'The Prophet,' is
central to human life and dignity:

"when you work you fulfil a part of earth's furthest dream, assigned to you
when that dream was born,
And in keeping yourself with labour you are in truth loving life."

Equally, the ILO has found in its new report on Global Employment Trends for
Women that there are emerging new forms of discrimination, among them, gender
discrimination. Unfortunately, people who are opposed to affirmative action
policies do not know that they are opposed to the elimination of gender and
other forms of discrimination prevalent in our societies!!!

As a continuing effort on our part to consolidate this process of
transformation, we have started a process of developing our Decent Work Country
Programme. In this programme, we seek to address all sorts of discrimination in
access to work opportunities. Women and youth, as part of the historically
marginalised and disadvantaged, will be accorded the necessary attention. This
is part of the transformation of our social and economic transformation.

This transformation is not only necessary, but is also inevitable. For
transformation to be realised, we need committed men and women in our society,
from all walks of life, to practically embrace this ideal and show through
their deeds. We shall triumph!!!

I thank you

Issued by: Department of Labour
4 July 2007