New Labour minister Mildred Oliphant tabled the Bills late last year, after years of deterioration in Department of Labour and Compensation Fund policy, strategy, administartion, capacity and systems, and extended power play between former Labour minister Membathisi Mdladlana, former Labour director general Jimmy Manyi, the Black Management Forum that Manyi had led to a virtual split, and labour movement aspirations for a socialist regime.
The new DOL ministry starts in a shambles of contested and impractical Labour legislation, open to constitutional legal challenge, a R1-billion IT contract and capacity scandal, failing systems, a R1-billion budget rigging scandal, loss of skills development functions, and a DG chair contested and lobbied for by a pollitically minded, litigating egoist.
Occupational health and safety issues remain on the back burner as inspectors prepare to gain stiff fines in a crackdown on employment equity, economic empowerment, minimum wages, foreign workers, and casual labour, reports SHEQafrica.com editor SHEQafrica.
Skills, including workplace health and safety skills, are now allowcated to DHET. Several private ‘registrars’ plan to hijack occupational health and safety registration in each sector, while regulation of health and safety professionalisation is allocated to SAQA. Former DOL grand plans for amalgamating industrial and mining legislation and inspetorates, are firmly back to departmental war trenches.
Four Labour Amendment Bills 2010
In addition to public comment on four major labour law amendments before 17 Feburary 2011, DOL had asked comment from the National Economic Development and Labour Council, Nedlac, in early 2011. The ANC and labour unions had since 2009 vowed to regulate contract work, subcontracting, outsourcing, as well as procurement, and to facilitate unionisation of unskilled labour.
The four Bills were subjected to a Regulatory Impact Assessment (RIA) already in August 2010, to determine options and cost implications, with some outstanding issues referred to Nedlac, for business and opposing labour unions to resolve. The assessment follows criticism that the DOL had earlier failed to assess its IT contract risks.
Employment Services Bill amendment;
State employment agency ‘impractical’
Employment Services Bill 2010 sets a framework for regulating labour brokers and centralising their function in a state body. Employment services are currently regulated by the Skills Development Act, which functions were transferred from Labour to the Department of Higher Education and Training (DHET) last year. Casual labour would be unionised as a result.
A state labour recruitment agency would register work seekers for free, and employers would have to register vacancies or be fined a minimum of R10 000.
Practicality of setting up a state employment agency, and measures like listing all private jobs, are seriously questioned on discussion forums. Some business and public commentators welcome the ‘equal pay for equal work’ and anti child labour measures, and criticise the rest of the amendments as communism, socialism, nationalisation, state meddling in business, or labour dictatorship.
Other Employment Services measures would include; Employment agencies to register with the Labour Department; Public employment services to be governed by an Employment Services Board; Sheltered Employment factories to be administered by Labour Department and Productivity SA; Child labour to be outlawed; Youth employment schemes to be funded by state incentives or subsidies to employers; Employment schemes to be implemented against recession, closures and retrenchments; Foreign workers to be limited to unobtainable skills.
Labour Relations Act amendment;
Labour broking ban contested
Labour Reltaions Amendment Bill 2010, to apply to private and public employment, would stop repeated short term contracting, unless justified to the Labour Department, would redefine employees include temporary workers, and repeal section 198, Temporary Employment Services, in the Labour Relations Act, 66 of 1995. These proposals are contested between business and organised labour, and section 198 is contested even within the labour movement, reported Skills Universe.
Labour brokers could be banned within three years, since employers would not be allowed to engage workers for a client. Brokers will challenge their ban in the comment phase, at Nedlac, in court, and in the Constitutional Court, reported Fedhasa.
Employees would have to be employed permanently, unless an employer justifies a fixed term. DOL chief director of labour relations, Thembinkosi Mkalipi, said the state and courts would regard all work as permanent, unless justifed as temporary.
Confederation of Associations in the Private Employment Sector president Elias Monage proposes regulation of labour broking instead.
Commission for Conciliation, Mediation and Arbitration (CCMA) provisions may allow conciliation and arbitration to be heard on the same day, even in the event of employer protest.
Basic Conditions of Employment Act amendment;
Minister could rule unions and wages
Basic Conditions of Employment Amendment Bill 2010 would empower the Labour Minister to lower or raise thresholds of representativeness of trade unions, allowing or banning certain unions from employer premises. The Labour Minister would also be empowered to set increases to actual wages, instead of minimum wages, for vulnerable workers in sectoral determinations.
Labour inspectors could get more powers to monitor and enforce workplace practices, by heavy penalties and prision terms. Provision would be made for wages and overtime
Employment Equity Act amendment;
‘Bills poorly formulated’
Employment Equity Amendment Bill 2010 proposes doubling of the progress reporting frequency, as well as equal pay for substantially equal work at the same employer, in line with nternational Labour Organisation Conventions 100 and 111 on discrimination. Fines are proposed to amount to 2% of employer turnover, and 10% for repeat offenders, to be levied by the Labour director general.
These fines were promoted by former Labour DG, and former Black Management Forum president, Jimmy Manyi. The Bill was published on 17 December 2010, with 60 days for public comment.
Democratic Alliance labour spokesperson Ian Ollis said the Amendment Bills were poorly formulated, would cost jobs, and were “the single most serious legislative assault on SA’s economic development under the Zuma administration.”
New Labour Minister represents labour movement
Labour Minister Nelisiwe Mildred Oliphant was appointed on 1 November 2010. She had been a Member of Parliament since 1994, and is Regional Convener and povincial treasurer of ANC Women’s League in North Coast region since 2008. She was a KwaZulu-Natal MEC since 2008.
Minister Oliphant has experience as Local Treasury of SACCAWU, Local Secretary of the Congress of South African Trade Union (COSATU), and chairperson of COSATU Women’s Forum. Her academic qualifications include a Certificate in Macro Economics and Certificate in Project Management.
She has experience as Chairperson of the Portfolio Committee on Public Services, Portfolio Committee on Land and Environmental Affairs, Joint Rules Committee, Joint Programme Committee, Joint Ethics and Members Interest Committee. She was a Member of KwaZulu-Natal Provincial Legislature, Convener of Health Study Group in KZN Legislature, National Council of Provinces and provincial Whip
Former Labour Minister fought assessment
Former Labour Minister Membathisi Mdladlana had criticised the Public Service Commission (PSC) after a report revealing DOL problems, for not disclosing that he had demanded performance assessments from his top management.
“I demanded performance assessments from former Labour director general Rams Ramashia, which I did not get.” Mdladlana complained that the PSC had tribalised the issue, since he is Xhosa and Ramashia is Sotho. “If heads must roll, so be it.” He was fired after firing DG Jimi Manyi.
DOL Training Layoff failed
Former DOL DG Jimmy Manyi had admitted to the Portfolio Committee on Labour that the Training Layoff Scheme was training only 3000 retrenched workers, from five employers, despite R2.4-billion allocated.
Manyi’s DOL budget fiddling
Former DG Jimmy Manyi had instructed senior staff to inflate their budget requests, amounting to nearly R1-b for the DOL, for unnamed purposes.
CC payouts down by a third
Compensation Fund payouts to injured workers had declined by R1-billion in the last financial year, revealed at the Parliamentlary Labour Committee. During 2009 -2010 there was a dramatic decline in claims and payouts, from 150 090 claims for R2.9 billion in 2008 -2009, to 87 800 claims at R1.9 billion in 2009 -2010.
DOL and CC’s IT bungle billion
An R85-million DOL IT contract fiasco was confidentially reported by auditing firm KPMG, including gross mismanagement of a R1.7-billion Siemens IT contract that runs to October 2012, leading to a termination cost of R85-million, said DA labour spokespeople Andrew Louw and Ian Ollis.
The audit report is dated 13 July 2009, but was not presented to the Parliamentary Committee on Labour. DOL would have to take over the IT function at an internal cost of R101-m, recruiting back IT staff that were hired by Siemens when the contract was awarded, the DA said. DOL operations could grind to a halt if the IT contract termination went wrong.
KPMG had found that full realisation of potential value for money has not been achieved due to lack of adequate contract management, drafting, and no verification of service claims.
DOL had faileld to set up an IT risk management committee. The contract did not stipulate processes for IT enablement. Termination of the contract was found to be ‘difficult or unworkable’.
The IT contract fiasco hammered nails in the coffins of three former Labour DGs, including Manyi, and former Labour Minister Mdladlana, said the DA.
DOL had admitted that Compensation Fund software was flawed and “cannot possibly account for each claim in the system, and cannot tell us the status of claims”. CC commissioner Shadrack Mkhonto told the Labour Portfolio Committee that the service capacity situation had deterioraterd.
A former CCMA employee had alleged gross financial mismanagement and unfair labour practices at the body responsible for resolving labour disputes. Mothibedi Mokoena, formerly of the CCMA audit unit, told Parliament’s labour portfolio committee that he and two colleagues were fired after alerting former Labour DG Jimmy Manyi to problems at the CCMA.
Labour offices shambles
Labour centers in four of the nine provinces were visited by members of the Parliamentary Committee on Labour in May, including Nelspruit, Rustenburg, Brits, and a KZN centre, to find “evidence of gross mismanagement and the effects of centralised administration, leading to inertia and collapse of some services,” said the DA.
Labour offices in poor and rural areas are in a state of disrepair, with one in a condemned building with a collapsing ceiling, and others without toilets. At some offices, pregnant women and elderly stand in queues for hours.
In Rustenburg, unemployed people claiming benefits have to pay to use toilets. Staff at some offices, such as Nelspruit, wait up to three months to have broken computers fixed.
DA Labour spokesperson Ian Ollis praised the Unemployment Fund, CCMA and Nedlac for performing their functions well.
Black management power tussles
Jimmy Manyi’s ‘off and on’ presidency of the Black Management Forum had become a power tussle. A BMF annual general meeting in October 2010 was led by a divided board following pronouncement by a committee of former BMF leaders that Manyi should resign. Other members backed Manyi on a transformation ticket.
The AGM was not a BMF election event, but the BMF appointed five members to investigate leadershiup issues and report in December 2010. The anti Manyi camp said the task team had hijacked a board function.
BMF members Lot Ndlovu, Bheki Sibiya and Nolitha Fakude, accused Manyi of ‘eroding BMF values by “displaying a frightening brand of arrogance, amateurism and lack of logic”. Manyi had proposed his BMFpresidential term to be extend from three years to five years, and wanted his position elevated to BMF executive president, diminishing the role of the BMF MD.
He was appointed Labour DG after drumming up support for electing certain ANC members to provincial positions. He allegedly offered his own consulting services to Norwegian ambassadors who came to discuss ILO issues in Pretoria in March, while he was Labour DG, and eventually faced 13 charges of misconduct and insubordination from former Labour Minister Membathisi Mdladlana.
PHOTO; Labour minister Mildred Oliphant was appointed in November 2010.