Introduction
May was an important month on the South African calendar. This is especially true in 2019. On the first, we celebrated Worker’s Day. A week later we went to the polls and cast our votes in the national elections. It has been 25 years since we have had the privilege of both a democracy and to celebrate our labour rights on Worker’s day..
The question we should now ask is: is the progress that we are making to promote labour rights sufficient to promote fair labour practices as envisioned by our Constitution? This article reflects on how labour rights have been promoted in South Africa in the last 25 years.
Promotion of Labour Rights
- Promotion of fair leave provisions for all parents
As you may be aware, the Basic Conditions of Employment Act (the “BCEA”) has been amended. This Act has added to our traditional maternity leave provisions. Maternity leave provisions which were applicable to new mothers whom have given birth in the past remain in place. However, our Legislator has recognised that South Africans have many forms of “modern families” who should receive equal protection of their labour rights under the law.
The heterosexual couple where the mother gives birth to the child
Traditionally only the mother would be able take the ordinary four months’ maternity leave in this case. However, as a result of the amendment to the law, the father would also be permitted to take 10 consecutive days parental leave.
The homosexual couple where one partner gives birth to the child
In this case, the partner whom gives birth to the child will qualify for the ordinary four months’ maternity leave. On the other hand, the other mother who did not actually give birth, will now be entitled to 10 consecutive days parental leave.
Regardless of sexual orientation, the couple or single person who adopts a child under 24 months old
In this case, one parent is permitted to take 10 consecutive weeks parental leave and the second parent is permitted to take 10 consecutive days parental leave. Where the parent is a single parent, then only the 10 weeks applies. It is very important to note that the parents in this scenario are entirely able to decide at their discretion who takes which amount of leave, the only requirement is that no more than one parent may take the higher and the lower amount.
Regardless of sexual orientation, the couple or single person who commissions a surrogate
This works exactly the same as the single parent and adoption scenario described above.
This Act has yet to commence. All parties who qualify for parental leave, will be obligated to claim from the Unemployment Insurance Fund. As a result, we believe that the delay in the commencement of this Act is caused by the fact that the Unemployment Insurance Fund must still make provisions to be able to accommodate larger amounts of claims.
- Promotion of equal opportunity and fair treatment for all workers
There are two main purposes of the Employment Equity Act (“EEA”). Firstly it aims to promote equal opportunity and fair treatment in employment through the elimination of unfair discrimination. Secondly, the Act seeks to promote affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational levels in the workforce.
This legislation has made a remarkable impact on the promotion of equality in the South African workplace. It has done so by firstly setting out clear guidelines to inform employers, employees and even job applicants of their rights and responsibilities in the workplace.
The EEA secondly mandates that designated employers must report to the Department of Labour (“DOL”) on how they have promoted employment equity within the workplace. Designated employers who fail to do so face serious penalties, which is an incentive to promote employment equity.
- Promotion of eradication of skills gaps in the workplace
Another Act worth mentioning is the Skills Development Act (“SDA”). South Africa’s history has resulted in a lack of skilled workforce. The SDA seeks to address this issue by providing an institutional framework to devise and implement national, sector and workplace strategies to develop and improve the skills of the South African workforce. Secondly it aims to integrate those strategies within the National Qualifications Framework. This Act also aims to provide for learnerships that lead to recognised occupational qualifications and provides for and regulates employment services and the matters connected therewith.
One of the most well-known features of this Act, however, is the fact that it provides for the financing of skills development by means of a levy-grant scheme and a National Skills Fund. Companies, therefore, have an incentive to promote the training of their employees, as Government will support them financially in this endeavour.
- Promotion of fair remuneration of workers
One of the notable recent additions to labour law is the National Minimum Wage Act (“NMWA”). This Act applies to all employers and employees and establishes the minimum wage at R20.00 per hour worked with a minimum of four hours’ work per day. There are some exceptions to the rule, i.e. farmworkers, domestic workers, workers employed on an expanded public works programme and workers who have concluded learnership agreements in terms of the Skills Development Act will therefore also be entitled to a national minimum wage, albeit at a different rate.
Besides the enactment of this Act, the Department of Labour has also recently announced the introduction of an additional compliance measure: Impimpi Alive. This is an anonymous reporting platform which allows employees to notify the DOL about any breaches of the Act.
Challenges faced by the Labour Market
According to Stats SA latest gross domestic product (GDP) release, the South African economy slumped sharply in the first three months of 2019, contracting by 3,2%. The 3,2% decline is the biggest quarterly fall in economic activity since the first quarter of 2009.
Seven of the ten industries took a knock, with manufacturing, mining and trade the biggest contributors to the fall. Sadly, these are all very labour intensive industries. The economic slump combined with an existing high rate of unemployment causes much concern. Finding the perfect balance between the protection of labour rights and the promotion of the economy has now become absolutely essential.
Conclusion
It is clear that strides have been made in the promotion of fair leave provisions for all parents, the promotion of equal opportunities and treatment of workers, skills development and, specifically the enforcement of the national minimum wage are encouraging. Whether these are, however, enough to accommodate for the challenges faced by the South African economy is, however, uncertain. South Africa’s best hope of ensuring the promotion of labour rights in future is to ensure that transformation in line with Constitutional rights remain our top priority.