Speech delivered by the Minister of Labour, Mildred Oliphant, on the occasion of the American Chamber of Commerce in South Africa - Business Breakfast held on 2 July 2015

2 July 2015

Chairperson,
President of the American Chamber of Commerce in South Africa and Board Members,
Executive Director; Ms Carol O’Brien,
Distinguished guests,
Ladies and gentlemen.

Good Morning!

Formal relations between South Africa and the America Companies has endured for many decades and needless to say that the US remains one of South Africa’s key trading partners in the world today. It is also argued that South Africa is a logical and attractive choice for U.S. companies to enter the African continent. This is indeed good news for all of us.

It is also notable that in the 80’s the US anti-apartheid movement played no small part in support of the popular resistance which sparked a dramatic expansion of international actions to isolate apartheid. We can remember vividly the Sullivan Code Principles requiring American companies to run their South African operations using American human rights and social justice principles. The Code also required American Companies to justify their presence in the country by contributing to the development of local communities.

I am raising these points to illustrate that indeed the US and some of its Corporates made notable contribution in the fight against apartheid. What remains though, is to lean on the US Corporates to contribute meaningfully in the fight for social justice and economic transformation of our society. I have no illusion that winning real social and economic transformation of our society remains the toughest of the tasks confronting our nation to date.

Like the US Corporates did in the 80s, it is possible that if we work together, we can also conquer the war against unemployment, poverty and inequality.

It is instructive that whilst the Sullivan Code principles were conceptualised and pursued in the 70’s, most of its elements are as relevant today as they were then. We value the contribution of the US Corporate as we walk the journey of transforming our society.

Chairperson, It should be remembered that the Labour Laws of this country were at the centre of the social and economic injustices of our past. The Land Act of 1913 and its cousin, the Group Areas act of 1950, re-enforced the repressive apartheid labour laws in a real way. It left scars that will take many years to heal. You will therefore be forgiven if you thought the labour laws of this country tend to go beyond the workplace bread and butter issues, because indeed that is true and is informed by our rather peculiar history.

I am sure that you will attest to the fact that our constitution is widely regarded as the most progressive constitution in the world, with a Bill of Rights second to none. You must therefore acknowledge that the Bill of Rights remains the foundation and the reference point for our Labour laws.

Ladies and Gentlemen, Section 23 of the Bill of Rights sets out a number of labour rights, including the right to collective bargaining, to join a trade union and to strike.

The Section, also stipulates the rights of the employers, as well as the rights of a trade union or employers’ organisation in great detail, which is unique amongst human rights instruments, I dare say. Our labour laws once again, derive their character and architecture from our Bill of Rights hence they are an expression of our constitutional responsibility.

Given the role that labour laws played in the engineering of the society in the past, the labour laws unavoidably act as an instrument to transform the post-apartheid South African society hence they somewhat go beyond the conventional workplace issues.

[Turning to your brief for this session - my vision of the labour environment in the short and medium term.]

Let me declare upfront that as a Minister of Labour, I do not hold any personal views when it comes to labour relations policy, as that is determined by the ruling party’s collective.

It does not really matter what I think as an individual Minister if that does not find resonance with the ruling party and if our social partners are vehemently opposed to proposals that we place in the public domain.

It is therefore important to mention that our labour laws are by and large the outcome of robust engagements with our social partners, that is Organised Business and Labour. Every single piece of our labour legislations go through various consultation processes, starting with the robust debates in the Executive; Inviting public comments; Engagements at the National Economic Development and Labour Council, Public hearings in Parliament and Going through the rigor of our Regulatory Impact Assessment scrutiny.

Our labour laws are also subjected to Constitutional scrutiny in order to ensure, that the content is not in conflict with the fundamental principles of our constitution. For this reason, I can safely say that our labour laws are not out of kilter with our constitution and most importantly, are co-created by all of those it seeks to regulate and those who may be interested parties.

In most cases, what ends up being incorporated in the law, is done on the basis of consensus at best, or sufficient consensus at the very least.

Our labour laws are a delicate balance between not suffocating the economic activity and extending protection to workers in general and vulnerable workers in particular.  It is not in our interest to introduce labour laws which carry the threat of collapsing companies. It is however not always an easy task to find the delicate balance in the manner that pleases everyone, but nevertheless we strive to strike a happy medium in this regard.

You may have noticed Ladies and Gentlemen that in the recent labour law Amendments, a number of exclusions and/or flexibilities have been built-in such as, limiting certain rights to workers who earn below R205 433.30 per annum, (the threshold set in the Basic Conditions of Employment Act); providing reprieve for small businesses and start-up businesses that are less than 2 years;

Simplifying the processes to expedite applications for exemptions from Bargaining Council Agreements and fine-tuning the Essential Services Committee processes.

We also have world class independent Dispute Resolution System, with the CCMA, which mediates and arbitrate labour disputes on one hand, and the Labour Court which adjudicate cases on the other.

I must say that workers have lost as many cases as they have won at the CCMA and the Labour Court, which proves that these institutions deal with matters even-handedly and without fear or favour. In addition, the recent Labour Law Amendments empower these institutions with legal instruments to perform their tasks even better.

At the wake of the 2012 and 2013 industrial relations instability particularly in the platinum sector, I received thousands of tips from the general public and labour relations experts, on what Government and the Minister should consider doing to address the problem of protracted strikes and violence. The tips varied from moderate to extreme propositions.

Whilst we must acknowledge that the adversarial nature of our industrial relations environment is historical, there can be no justification for some of the incidents we witnessed in the recent past. Let me say that the drafters of our Constitution and subsequently the Labour Laws, did so with the understanding that these rights will be exercised responsibly, and without violating the national liberties of other citizens.

I must assure you that these matters, whilst being covered extensively in the recent Amendments, are also being addressed in the multi-stakeholder process that is led by the Deputy President.

Whilst the Labour Relations environment has since stabilised in the last two years, this should not be the reason for complacency. The stubborn challenge of inequality and poverty, even among the employed, are the biggest threat to the labour relations stability.

It is a fact that workers had high expectations of post-apartheid SA, among them, the hope for an improved life through a wage they felt should meet the rising costs of their daily life. It is clear that such expectations have not been met.

Workers continue to struggle financially for a number of reasons and unless these issues are dealt with, they will remain a trigger to industrial relations instability.

As I conclude, it is important to point out that it is not part of our brief as the Department of Labour, to introduce policies which crowd-out investments.  We need investments in order to grow this economy and create conditions to address unemployment and other associated ills.

It is also not our business to put in place policies which prevent young people from getting gainful employment.  If for any reason, these are some of the unintended consequences of our existing laws, we need to know about them with proposed corresponding solutions. However, proposed solutions must not seek to bring back the ugly past as that will be resisted from all and sundry, I suspect.

Chairperson, I am the first to admit that as we unpack what the constitution demands of us on the Labour relations front, there is no guarantee that they will not be unintended consequences of one sort or the other.

It is either we find an elegant way of managing such consequences or change those things that would have given rise to such consequences. For this to happen, we need to stay engaged.

I am a strong proponent of a stable industrial relations environment as a condition for an all-inclusive development. The key ingredient though, is equitable share of the gains, otherwise all our efforts will be in vain.

South Africa needs your contributions as key players in our economy. The challenges that you may have are not only yours, but ours. Therefore we need to join hands to find shared solutions for mutual benefit, our country and all its citizens.

Being a good corporate citizen a concept that resonates very much with the Sullivan Code, is perhaps a good starting point for sustainable development. I challenge the CEOs and Senior Management of US Corporates that are invested in South Africa, to lead in this regard, just like your forbears back in late 70s.

Thank you, Together let’s move South Africa Forward!

Issued by the Department of Labour, July 2 2015