Sectoral Determination implementation in Agricultural Sector; Employment Conditions Commission on its work and programmes

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Employment and Labour

21 November 2011
Chairperson: Mr M Nchabeleng (ANC)
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Meeting Summary

The Employment Conditions Commission explained that the Basic Conditions of Employment Act (BCEA) of 1997 provided for the promulgation of Sectoral Determinations which established minimum wages for workers in specific sectors of the economy. The BCEA also made provision for the creation of the Employment Conditions Commission, which specifically protected vulnerable workers where worker organisations or trade unions were absent or where workers were not covered by the BCEA or other wage regulating mechanisms. ECC Commissioners were appointed by the Minister after consultation with NEDLAC and were specialists in economics, development and labour law, as well as representatives from organised business and organised labour. The ECC advised the Minister on various matters included in the BCEA, and its main function was making Sectoral Determinations. Since the promulgation of the legislation, 11 SDs had been established containing detailed minimum standards for the conditions of employment.

The first
Sectoral Determination came into effect in 2002. It had been reviewed in 2006, 2009 and would be reviewed again in 2012. It applied to all agricultural sector workers, excluding workers in the forestry sector. The current wage levels in the sector until 2012 were R7.04 per hour, R317.51 per week and R1 375.94 per month. South Africa’s Quarterly Labour Force Survey data showed that the agricultural sector has shed 24 000 jobs between the 1st quarter of 2010 and the 3rd quarter of 2011. Research indicated that wage increases did not cause the job losses.

A study had been conducted to provide an analysis of the impact of the current
Sectoral Determinations on a range of labour market outcomes, including wage levels, and poverty. The research findings were that there had been a significant decline in the level and depth of poverty between 2001 and 2007. In households with at least one worker covered by a Sectoral Determination in South Africa, the percentage of poor individuals, under the poverty line, declined significantly from 54.4% percent to 42.7%.

The Department had commenced with the consultation process to determine the feasibility of having a provident fund for farm workers. Determinations were promulgated for three years after which they had to be reviewed. The Department had commissioned research on the taxi sector as part of the broader transport sector and the impact of transport transformation on the taxi sector.

The briefing on the implementation of Sectoral Determination in Agriculture by the Inspectorate Enforcement Service explained that the Sectoral Determination establishing minimum wages and conditions of employment for employees in the agricultural sector in South Africa came into effect on the 1 March 2006. The role of the labour inspectorate since then was to monitor its implementation and to ensure that compliance was enforced. Inspectors conducted routine inspections both proactive and reactive as per provincial inspection plan. In this case farmers were notified in advance about the intended visit. Blitz inspections were also conducted on farms without any notice.

The agriculture sector was a problematic sector regarding workers’ rights and compliance to labour legislation. There had been an increase in cases of child labour, with the condonation of parents, workers were living in poor conditions, there were in some cases no contracts of employment and where they existed they were not in line with the Basic Conditions of Employment Act. Illiteracy in this sector was widespread – workers signed documents which they could not read or understand. There was an increased use of labour brokers and consultants. In these cases the documentation pertaining to those workers were not available for inspection. Employment of legal and illegal immigrant workers posed a problem. Women were still often paid less than men for the same work.

In terms of procedure, inspectors would identify a contravention of the BCEA, point it out to the employer, and first had to secure an undertaking from the employer to rectify the problem. Only when the employer did not fulfil the undertaking, could a compliance order be issued. The inspectorate felt that this was prolonging the procedure and making the inspectorate less effective. It was proposing that the BCEA be amended to take out the step of securing an undertaking so that inspectors could issue compliance orders right away.

Key challenges were insufficient inspectors, vehicles and cell phones, access to farms remained a major challenge, the formal protocol which regulated the relationship between the farming sector and department needed review and labour brokers made it difficult for inspectors to identify the real employer. A major challenge was the organisation of farm workers to ensure collective bargaining.

Recommendations were
that the Department secure sufficient resources to ensure effective monitoring of the farms for compliance with the Sectoral Determination. The Department had to enhance strategic partnerships with all relevant stakeholders and other government departments. The Protocol in the farming sector needed to be reviewed. Issues of labour brokers and outsourcing had to be urgently addressed. A national meeting between the DoL, Transvaal Agricultural Union (TAU), Agri-SA, the National African Farmers Union of South Africa (NAFU) and the Food and Allied Workers’ Union (FAWU) had to be set up to address challenges within the sector. Regular advocacy and education sessions for both workers and employers had to be held.

Members asked what the real unadjusted figures were for wages for the different categories of workers in 2001, 2007 and 2010; about the Employment Conditions Commission and how it was constituted; whether the relationship between taxi owners and drivers were proper contractual relationships; whether something could be done to curb the reckless behaviour of taxi drivers who were trying to reach quotas; why it was taking so long to establish a pension / provident fund for agricultural workers; why the broader transformation of the social security sector was cited as a reason for delays in the ECC’s work; whether the labour inspectorate had any legal clout to penalise non-compliant employers so they would rather comply than be penalised; and why the Department of Labour did not cooperate with Human Rights Watch study to alleviate the challenges facing agricultural workers.


Meeting report

The Chairperson said that the meeting had been planned as a joint meeting with the Portfolio Committee on Agriculture, Forestry and Fisheries, because it needed to hear the same presentation, but it would not be attending the meeting. The reports about to be presented were important because they dealt with the working conditions of the most vulnerable workers in the RSA: the domestic workers, security guards and farm workers. The Chairperson’s main worry was the working poor. Some farm workers’ monthly salary was less than the monthly pay-out of a state pensioner. Farm workers were often not motivated to go to work, because they bought much needed household supplies at inflated prices, from farm shops, which would be deducted at the end of the week/month from their already meagre salary.

After the Chairperson and Committee Members introduced themselves, the Chairperson gave the floor to Mr Les Kettledas,
Deputy Director-General: Labour Policy and Labour Market Programmes, Department of Labour (DoL) and leader of the delegation, which he introduced.

Employment Conditions Commission (ECC) briefing
Professor Jan Adriaan van der Walt was a Commissioner in the ECC, as well as a labour law specialist academic at the Nelson Mandela Metropolitan University in Port Elizabeth.

The role and Function of the ECC
The mandate of the DoL was to protect vulnerable workers. The Basic Conditions of Employment Act (BCEA) of 1997 provided for the promulgation of Sectoral Determinations (SDs) which established minimum wages for workers in specific sectors of the economy. The BCEA also made provision for the creation of the Employment Conditions Commission (ECC), which specifically protected vulnerable workers where worker organisations or trade unions were absent or where workers were not covered by the BCEA or other wage regulating mechanisms. Members of the ECC were appointed by the Minister after consultation with NEDLAC.

The Chairperson of the ECC was Prof Ingrid Woolard from UCT, Commissioners were Prof Imraan Valodia from UKZN and Prof Jan Adriaan Van Der Walt from Nelson Mandela Metropolitan University. Profs Woolard was an economist as was Prof Valodia, but he specialised in development studies. Organised business was represented by Mr Kaizer Moyane and Ms A Ranchod, and organised labour was represented by Mr Bheki Ntshalintshali and Ms Jane Barrett.

The function of the ECC was to advise the Minister on various matters that were included in the BCEA. Its main function was to make Sectoral Determinations. The Minister promulgated these. Secondary functions for the ECC was to make recommendations to the Minister regarding wage differentials, child labour and hazardous work amongst others. Since the promulgation of the legislation, 11 Sectoral Determinations had been established containing detailed minimum standards for the conditions of employment. The lowest wages were paid in the forestry sector and the second lowest in the agricultural sector.

Background of SD: 13 – Farm worker sector
The first SD was published on 2 December 2002 and came into effect on 16 December 2002. The SD was reviewed in Feb 2006, Feb 2009 and would be reviewed in 2012. This process was underway. SDs applied to all agricultural sector workers, excluding workers in the forestry sector. (The definition included a domestic workers and security guards working for or on farms as well). The current wage levels in the sector until 2012 were R7.04 per hour, R317.51 per week and R1 375.94 per month. South Africa’s
Quarterly Labour Force (QLF) Survey data showed that the agricultural sector has shed 24 000 jobs between the 1st quarter of 2010 and the 3rd quarter of 2011. Research indicated that wage increases did not cause the job losses.

Issues Raised on the Implementation of the SD
The ECC had addressed the following matters: small business; young workers (15 -18 years old); definition of task and piece work; the 27 hour provision had been phased out in 2005 on request of both employers and employees; demarcation (meaning differential wage rates in the different areas in SA) had been phased out in 2008; medical certificates (GG. 30660 of 10 January 2008: the employer had to assist the farm worker in obtaining a medical certificate).

Impact of SDs
A study was conducted to provide an analysis of the impact of the current SDs on a range of labour market outcomes, including wage levels, and poverty.

Between 2001 and 2007, monthly wages in the domestic work sector increased by R662 to R971 by 6.6%. For farm workers it increased from R881 to R1 346 by7.3%. Forestry workers increased from R1 246 to R1 728. For taxi workers it decreased by 3% from R2 854 to R2 383 and for security workers by 2.3% from R2 613 to R2 276. For contract cleaning it increased from R2 413 to R2 601. It increased in the sectors where one found the most vulnerable workers. In these sectors, employers only pay what they were prescribed by law to pay. SD also included yearly increases. In the taxi and civil engineering sectors, employers already paid more than required by law and did not necessarily give yearly increases.

This information indicated that a rise in real wage was driven by the farm worker sector with a 7.3% increase. The significant rise may indicate that the minimum wage has had an effect on vulnerable workers such as farm workers.

Impact of the SD on poverty
The table in the presentation gave figures on where one worker in a household was affected by SD and how it impacted on the poverty level of the household. In the domestic work sector in 2001, 70.8% of households of people who worked in the sector were considered to live in abject poverty. In 2007 it had been reduced to 53.8%. For the agricultural sector in it was 77.1% reduced to 59.6%. For the forestry sector it was 54.0% reduced to 34.9%. For the taxi sector it was 40.1% reduced to 38.4%.

Research Findings: Impact of the SD on poverty
There has been a significant decline in the level and depth of poverty between 2001 and 2007. In households with at least one worker covered by a SD in South Africa, under the
poverty line of R322 a month in 2000 prices, the percentage of poor individuals declined significantly from 54.4 percent to 42.7 percent between 2001 and 2007, while the poverty gap declined significantly by 9.8 percentage points respectively. In South Africa as a whole, the decline in poverty using both definitions of the poverty line was also statistically significant.

Current Issues
The current SD did not make provision for provident or pension funds for the farm worker sector. The Department had commenced with the consultation process to determine the feasibility of having such a fund for farm workers established. A provident fund had been already mooted as early as 2002 but had been impacted by the discussions on social security reform. The mechanics of such a fund (if established) would be developed in dialogue with social partners.

Going forward, the ECC would finalise the investigations into the possible establishment of provident funds and medical schemes in the sectors identified, investigate new SDs for the fishing and building sectors and consider the welfare sector as a possible sector for establishing a SD forum.

Determinations were promulgated for three years after which they had to be reviewed. Several determinations older than three years would have to be reviewed. By the beginning of the third year, the DoL and the ECC jointly investigated and consulted with the relevant parties, and made recommendations to the Minister three months before the third anniversary of the promulgation date. It was a continuing process, because there were 11 existing determinations and three new determinations in development.

The DoL had commissioned research on the taxi sector as part of the broader transport sector and the impact of transport transformation on the taxi sector.

Discussion
Mr A Williams (ANC) asked for more information on the ECC.

Mr Kettledas replied that the ECC had been established in terms of the Basic Conditions of Employment Act. It was not a Chapter Nine commission but essentially a part-time commission. It was constituted by one member from organised labour and one from organised business. The parties were nominated through NEDLAC. The nominations were forwarded to the Minister and the Minister made the appointments. The Commission had no office, but met at the offices of the DoL, and was supported by a secretariat provided by the DoL. It was hosted by the Department of Labour headed up by Mr Virgil Seafield, Executive Manager: Employment Standards.

Mr Williams commented that, under the heading “Current wage levels in the sector” it said that farm workers earned R1 375.94 per month in 2012 while in the table illustrating the impact of SD on wage levels it said that farm workers earned R 1 346 in 2007. This meant that there had been no real wage increase for farm workers since 2007. The ECC was supposed to address the needs of both farmers and farm workers, but it addressed the needs of farm workers less, judged by the lack of a real salary increase since 2007.

Mr I Ollis (DA) noted the impact of SD on wage levels and asked if the figures in the presentation had been adjusted for inflation. Was the figure for the wages in the retail sector the actual rand value, or had it been reduced?

Mr Virgil Seafield, Executive Manager: Employment Standards, DoL, replied that the figures reflected for 2007, had been adjusted for inflation for the current period. The figures were not the same figures that were recorded in 2007. The research came out in 2010.The figures had been adjusted to reflect the 2009/10 period. It was not the actual figure, but an inflation adjusted figure.

Mr Williams pointed out that when Mr Seafield said that the figures for 2007 were adjusted; it meant the figures were guessed at. What were the real figures?

Mr Seafield replied that the figures in the table had been adjusted in order to arrive at 2010 figures. It was a statistical tool that had been applied. In 2001 the wages were stratified into two categories – less than 27 hours and more than 27 hours. There were also different rates for urban and rural areas. There were four different effective minimum wages. In 2010, there was one minimum wage. To match appropriate figures with each other, it was necessary to adjust these figures to come to a singular figure that could be matched. The figures under the heading “Current wage levels in the sector” which read R7.04 per hour, R317.51 per week and R1 375.94 per month were the wages which applied now. These were minimum wages, not average wages and not the top end of the scale. The adjusted figures for 2010 were very close. They were not guesses but were arrived at using a reliable statistical application.

Mr Williams understood the presentation to say that between 2007 and 2012, the minimum wage for farm workers increased by R29. He wanted to know whether he understood it correctly.

Mr Seafield replied that in 2001 there was no SD. The SD for farm workers came out in 2002. In 2001 the actual average wage for farm workers was ±R540 per month. This R500 had been adjusted for the 2007 period and in 2007 it was equivalent to R881.

Mr Williams said that in 2007 it was R1 346 and in 2012 it would be R1 375.94 so it increased by R29 over five years.

Mr Seafield replied that the R1 346 figure was not really R1 346 in 2007. It was the 2007 figure, adjusted to reflect as a 2010 figure.

Mr Williams said that Mr Seafield had to be clearer in the future and not present misleading information.

Mr D Kganare (COPE) said that a simple way would have been to give the minimum wages per year, year by year.

The Chairperson asked Mr Seafield to write the figures down and explain again.

The Chairperson asked how SD was going to be implemented in the agricultural sector as it applied to agricultural workers, forestry, domestic workers and farm security guards.

Mr Williams asked to what extent organised agriculture was part of the ECC.

Mr Ollis asked what the exemption of small businesses meant in relation to bargaining councils.

Mr Seafield replied that the DoL had published a small business determination. Small businesses employing less than 10 people were exempt from four provisions of the SD for that particular sector, because small businesses had different needs in order to be able to function. They were exempt from the SDs on leave provision, for example family responsibility leave, because it was harder to replace somebody in a small business that went on leave. In this case, the smallest common denominator also had to be able to afford the minimum wage. It was hard to define a small business, because a two person operation could turn over millions, while an operation employing hundreds could run at a loss.

Mr Ollis asked the presenter to explain the 27-hour provision that had been phased out.

Mr Seafield replied that in the first determination that was formulated, the parties made a distinction between the rates paid to people working more than 27 hours per week and those working less than 27 hours per week in order to address amongst others the seasonality of the industry. If an employee worked less than 27 hours per week, the employer was obliged to pay the employee more than the normal rate. In the current determination there was a flat hourly rate irrespective of the number of hours worked. Both employers and employees agreed to this arrangement.

Mr Ollis asked regarding the p0, p1 and p2 statistics in the presentation, when the first SD was published. SD helped because it raised the minimum wage, but it should not be raised too high.

Mr Seafield replied that the first SD was published in 1999 for the contract cleaning industry. Most of the SDs was published from 2001 onwards. The tables reflected adjusted figures for those determinations that came before 2001, which were adjusted for 2001 prices and the 2007 figures which had been adjusted for the 2009/10 period.

Mr Ollis said that taxi drivers were often penalised for overloading taxis, speeding and not complying with traffic rules, and the reasons they gave for this behaviour was that, if they did not do it, they did not earn any money for the day. They had to hand over a minimum amount to the employer per day. The Commission had to have a view on this practice. Were the taxi drivers telling the truth? Was the relationship between the driver and the owner a proper contractual relationship? If not, what could be done to rectify the situation and protect passengers?

The Chairperson said that the problem was in the system itself. In a profit system, the worker had to produce surplus.

Mr E Nyekemba (ANC) said he recalled a campaign by the Unemployment Insurance Fund (UIF) to persuade taxi owners to register their drivers. At that time the Committee indicated the need for the DoL to collaborate with the Department of Transport (DoT). Had the DoL been interacting with the DoT with regards to the SD in the taxi industry? One could not do SD without looking at the place of employment, and in the case of the taxi industry, it was the taxi. There were different associations within the industry. Was the DoL engaging with the associations?

Mr Nyekemba said that in the Northern Gauteng from where he came, there were old rundown cars and bakkies functioning as taxis. He had a suspicion that they functioned outside of taxi association structures and were not registered with the DoT. How did the EEC deal with those operations?

Mr Kganare asked whether there were any taxi drivers or mechanics in the ECC.

Mr Seafield replied that the DoL was consulting with the Department of Transport. The DoL had commissioned research to determine the impact of the Gautrain, the bus rapid transport system, and the broader transformation of the public transport system on employment in the taxi industry. It had to understand the dynamics. The minimum wage for this sector also had to be researched and had to be standard. The lowest common denominator in the industry had to be able to pay the minimum wage. It did not make sense that it was only affordable in Gauteng and not in the rural areas. The enforcement regime was premised on the fact that it had to be standard throughout the country. The DoL was talking to the taxi associations, but they were currently more focussed on transformation in the industry than on minimum wage. The taxi associations were part of the negotiations process.

Mr Seafield said that the DoL was aware of the different employment relationships in the taxi industry. They used the sock method amongst others – handed over a certain sum and the rest was hidden in the sock. Sometimes a driver drove his brother’s or father’s taxi and only handed over a lesser amount. The ownership regime was not an issue of SD, but the DoT had to come to the table in order to rectify it.

Mr
Thembinkosi Mkalipi, Chief Director for Labour Market Policy, DoL, added that a SD did not regulate the system of how the wages were made up, or working arrangements. The current system and resulting behaviours of taxi operators put workers and passengers at risk.

Government subsidies were given to other passenger-carrying transport such as bus companies providing public transport. Taxis received no subsidies, causing extreme behaviour. The DoL was discussing with the DoT on how fast they could move transformation. This would determine the labour arrangements that could be made.

Mr Nyekemba said he had asked Mr Mkalipi in the meeting of 8 November 2011, what the agreement was for workers working in extended public works programmes and community work programmes. Mr Mkalipi had responded saying, where there was no SD agreement, but the BCEA applied. Mr Nyekemba said that he was digesting what Mr Mkalipi said, but he needed Mr Mkalipi to explain more, regarding the hours of work and other similar aspects. How did one determine that there was no SD?

Mr Seafield replied that for EPWP and Community Work programmes there was the Ministerial Determination, recognising its special circumstances.

Mr Nyekemba said that in the presentation, the issue of the pension and provident funds were listed as current issues. These issues started in 2002 and it was 2011.The reason for the delay, according to the ECC was given as social security reforms that were underway, which it had to fit in with. Could the ECC explain why it took so long? It could not hide behind the social security reforms, because reforms would always be there.

Prof vd Walt replied that it was a new three years. The commission had been re-constituted. There were two issues. There was going to be a pension and a provident fund in agriculture within the next two years. It would be followed up in all other areas where it did not exist yet, and where there was a SD. In the welfare sector, subsidies to organisations could not be held up because of a lack of feedback. The EEC took the criticism as justified. It was not waiting any longer to proceed on these matters.

Mr Seafield added that the presentation was worded very carefully. The idea of the provident fund was first raised in 2002, but the DoL only started with the provident fund investigation two years ago. It was important to raise it.

Prof vd Walt replied that the matter was standing down until Mr Moyane (the representative from business in the ECC) could get a mandate from organised agriculture regarding the provident fund.

Mr Nyekemba said that the fishing and the building sectors were cause for concern. The situation in the Eastern Cape was worrying, because it was difficult to force employers to form associations. SDs would apply all over. Would it not compromise what was happening in the Eastern Cape?

Mr Seafield replied that the DoL was cognisant of developments in the building and fishing industries. In the Eastern Cape there was a statutory council and in the Western Cape there was a bargaining council in the fishing industry. A number of players were excluded from the scope of these councils. The first prize would be to get them into a bargaining council, so that they could regulate their own conditions of employment in these industries.

Mr Kganare asked whether government was able to enforce minimum wage rules/laws. Was there a system to determine the average wage annually? Would enforcement have an impact to the extent that it would be better for an employer to comply with paying the minimum wage than to pay a fine?

Mr Kganare said that the market determined the wages normally through collective bargaining. How comparable was the minimum wage, because if the market determined the wage through collective bargaining at a certain level, and the ECC minimum wage was set at a very low level, the wage gap would never be reduced. Did the ECC take into consideration what the market was saying through collective bargaining, when determining a minimum wage?

Mr Seafield replied that market forces did not determine the level of wages. It did not work with supply and demand. Wage levels remained low and depressed, until SD came into play. Employers just decided what they wanted to pay the workers, irrespective of the profits they made off the products produced. When the DoL started the research in 2002, it still found farm workers being paid R39/month. For workers earning these low wages, SD played an important role.

Ms L Makhubele-Mashele (ANC) asked why the issues of young workers (15-18 year olds) had to be addressed separately.

Mr Seafield replied that the reason why specific recommendations were made for young workers (15-18 year-olds) in SDs, in terms of hours of work, taking cognisance of their developmental needs. They were by law not allowed to work with poisonous pesticides and chemicals.

Implementation of Sectoral Determination in Agriculture
Ms Siyanda Nxawe, DDG: Inspection and Enforcement Services, DoL, said the Sectoral Determination establishing minimum wages and conditions of employment for employees in the agricultural sector in South Africa came into effect on 1 March 2006. The role of the labour inspectorate since then was to monitor its implementation and to ensure that compliance was enforced.

Inspectors conducted routine inspections both proactive and reactive as per provincial inspection plan. In this case farmers were notified in advance about the intended visit. Blitz inspections, which was an attempt to heighten visibility of inspectors in workplaces, were conducted on farms. In this instance farms were visited without any notice. The Minister had also adopted this programme and was currently leading blitz inspections in Agriculture. She has visited KZN, Limpopo, Mpumalanga and the Northern Cape. More visits were planned for the remaining provinces as well.

The agriculture sector was a problematic sector for workers’ rights and compliance to labour legislation. There had been an increase in cases of child labour, with the condonation of parents, workers were living in poor conditions, there were in some cases no contracts of employment and where they existed they were not in line with the Basic Conditions of Employment Act . Illiteracy in this sector was widespread – workers signed documents which they could not read or understand. There was an increased use of labour brokers and consultants especially in the Western Cape and Mpumalanga. In these cases the documentation pertaining to those workers were not available for inspection. Employment of legal and illegal immigrant workers posed a problem in some provinces. Women were still often paid less than men for the same work.

There was a table setting out the number of inspections, the compliance rate, the notices issued, the undertakings secured, and on follow-up the compliance or continued contravention to the legislation (see presentation).

In terms of procedures to be followed, inspectors would identify a contravention of the BCEA, point it out to the employer, and first he had to secure an undertaking from the employer to rectify the problem. Only when the employer did not fulfil the undertaking, could a compliance order be issued. The inspectorate felt that this was prolonging the procedures and making the inspectorate less effective. It was proposing that the BCEA be amended to take out the step of securing an undertaking, so that inspectors could issue compliance orders right away.

Challenges
The key challenges were insufficient inspectors, the tools of the trade such as vehicles and cell phones were in short supply, access to farms remained a major challenge, the formal protocol which regulated the relationship between the farming sector and department needed review and labour brokers also made it difficult for inspectors to identify the real employer. A major challenge was the organisation of farm workers to ensure collective bargaining on issues affecting their employment conditions and wages.

Recommendations
The
Department had to secure sufficient resources to ensure effective monitoring of the farms for compliance with the SD. The Department had to enhance strategic partnerships with all relevant stakeholders and other government departments. The Protocol in the farming sector needed to be reviewed. Issues regarding labour brokers and outsourcing had to be urgently addressed. A national meeting between the DoL, Transvaal Agricultural Union (TAU), Agri-SA, the National African Farmers Union of South Africa (NAFU) and the Food and Allied Workers’ Union (FAWU had to be set up to address challenges within the sector. Regular advocacy and education sessions for both workers and employers had to be held.

The Chairperson said that on 24 November 2011, the Committee would look at its Report on its visits to the Labour Centres in the Free State. Some of the recommendations made by the Committee were already being implemented by the Department. There were still some outstanding matters.

Discussion
Mr Williams said there was a table in the presentation referring to compliance notices. Were there notices issued prior to 2010/11? Was there an improvement? What actions were taken against employers who were found to be non-compliant?

Ms Nxawe said that the information on notices issued before 2010/11 could be provided.

Mr Williams asked how many labour inspectors the department needed.

Ms Nxawe replied that there were currently 1 070 inspectors. There were 900 field positions. There were still vacancies. The problem was retaining them as they left for bigger salaries elsewhere.

Mr Ollis referred to the presentation where it listed a breakdown of the farm visits per province. He noted that the North West, a relatively small province had 317 visits, while Mpumalanga, a large predominantly agricultural province, had 98 visits. Why? He wanted to know why the numbers of visits in the different provinces were so uneven. Some provinces had too many visits and some were abandoned.

Ms Nxawe replied that there were a number of inspection problems. The targets came from provincial inspection plans. The national office did not dictate to the provincial offices. The provinces put together plans considering problematic areas and resources available. The national office assessed their performance based on their plans. The bias in the numbers of visits in the provinces came from the provincial inspection plan.

Mr Ollis said that he had disturbing phone calls from labour inspectors, in the Western Cape. They were depressed and de-motivated. He was not sure why.

Ms Nxawe replied that the DoL inspectorate management had addressed the inspectorate. It was busy sharing information regarding the programme, the planning and the developments and how it affected their work and employment conditions.

Mr Williams asked if Aagri-SA really represented farmers and were the right organisation to speak to, as Agri-SA made the agreements, but its members, the farmers, failed to comply with the agreements it made.

Ms H Line (ANC) said that it was really a great concern that the department was still struggling to get access to farms. Were there law enforcement measures in place? What was the department doing?

Ms Nxawe replied that legislation indicated that when an inspector visited a farm, he could be accompanied by a member of the SAPS. The SAPS member would be regarded as a labour inspector in that instance. The DoL had taken employers to court whom they found to be obstructing the work of the inspectorate. There had been a case in KZN where the court ruled in favour of the DoL.

Ms Line said regarding women employed in the most vulnerable sectors, how had sectoral determination improved the lives of women in female headed households? Often men were paid more than women for the same work.

Mr Seafield replied regarding the request for data on the effect of sectoral determination on female headed households. There were no spec figures for women, but the data could be extracted.

Mr Kganare said that the Inspectorate had a target of 80% for compliance nationally. Did it have a target for every province?

Ms Nxawe replied that targets were set by provincial offices. The national office set national targets. Each province contributed to the national percentage.

Mr Kganare asked in how many cases the issuing of compliance notices had an impact, when the inspectorate followed up.

Mr Kganare said according to the presentation, the inspectors did not have the tools of the trade like cell phones and enough cars to do their inspection efficiently. There were too few inspectors already, and on top of that they did not have the tools of the trade. If the inspectors were to be increased, it would be futile, because there would still be insufficient tools.

Ms Nxawe replied that the DoL had been requesting funding from National Treasury in terms of the MTEF. It had received an allocation to be able to increase the number of inspectors. The Inspectorate’s request for funding for additional cars and cell phones was under consideration.

Mr Kganare asked when the planned national meeting with all these organisations would happen and whether any other unions, except FAWU, would be involved.

Ms Nxawe replied that the national meetings mentioned had been taking place. The names mentioned were examples but the DOL had to talk to all role-players. It was receiving attention at Ministerial level.

Mr Kganare said that, in urban areas many young people did caddying and garden jobs, without which many of them would not be able to finish school. Currently the perception was that child labour was all bad. Government had to look at how to tackle the social conditions that forced children to work, instead of just legislating.

Ms Nxawe replied that child labour was problematic, but there was a SD for children in the performing arts sector which Mr Seafield could elaborate on.

Mr Seafield said that the law prohibited labour during the time that the child had to be in school. Grade 9, Std 7, was the first exit point at which stage the average child was 15/16 years old. Children younger than that should by law not work. Works were those activities that impacted negatively on a child’s health, well being, social and moral development. Household chores like washing the dishes or mowing the lawn did not constitute work.

A child picking up mielies after the machine had harvested it, or caddying on the golf course, to earn a living, performed work, which was prohibited by the Act.

Government was developing a holistic plan, the Child Labour Programme of Action with the Departments of Justice and Constitutional Development, Social Development, SAPS and other relevant departments in order to address the fundamental reasons why the child was working.

The Chairperson said that when children worked as sex workers, they were at risk of falling pregnant at a young age.

Mr Ollis asked in which provinces the employment of migrant labourers was a problem.

Ms Nxawe replied that the provinces where there were problems with migrant workers on farms were mainly in Limpopo and Mpumalanga.

Mr Nyekemba said that labour brokering was being dealt with at NEDLAC. He was not sure about labour consultants, which made it difficult for the inspectorate to do its work.

Ms Nxawe replied that according to the legislation, a place of work had to have the administrative details on the workers employed there. The employer had the duty to provide all the documents that the inspectorate required for inspection.

Mr Nyekamba said that the Committee had just received a research report from Human Rights Watch (HRW). The report said that the DoL was one of the government departments that did not cooperate with it in dealing with some of the problems experienced by farm workers. He wanted the DoL to comment.

Ms Nxawe had read the HRW Report, but she was not aware that there was a lack of cooperation from the DoL with HRW. The DoL was willing to cooperate with civil society on these issues.

Mr Nyekamba said the HRW presentation identified as one of the challenges, the living conditions of workers on the farms, which were also dealt with in the SD. HRW also indicated that it tried to communicate with the Department of Human Settlements. Did the DoL try to communicate with the Department of Human Settlements to find out whether it had a plan to put in place to resolve the challenge of the living conditions of farm workers?

Ms Nxawe replied, regarding the living conditions on farms, the DoL was doing joint inspections with SAPS, Home Affairs, Department of Health and the Department of Agriculture. It would have to include Human Settlements as well.

Mr Kettledas said that housing for which a farmer was going to make deductions, had to be a minimum of 30m2. No deductions could be made for below standard housing. The DoL found cases where deductions were made, but the housing did not comply with the standards. The employer was directed to stop deductions.

Mr Mkalipi said that there was, by law or SD, no requirement on farmers to provide accommodation for farm labourers. Where a house was provided, and the farmer made a deduction for the house, it had to be at least 30m2. This was all that inspectors could enforce.

Mr Titus Mtsweni, DOL
Employment Standards Directorate, said that the employer had to apply for a Ministerial Determination in order to be able to make deductions for items bought at the farm shop. In cases where the employer applied and made deductions, the Ministerial Determination would make sure that the prices were not inflated.

The Chairperson said, regarding the contravention of the BCEA, what powers did labour inspectors have to enforce laws? Where there was non-compliance, could the employer be taken to court, fined, jailed, or their businesses shut down?

Ms Nxawe replied that if an employer was found to be in contravention of occupational health and safety legislation, contravention notices were issued to the employer. The employer was given a period or fine with which to comply, failing which the matters were referred to court. In cases where worker’s lives were threatened, prohibition notices could be issued. The operation could be stopped or the business shut down.

Ms Nxawe added that notices were issued. In terms of the BCEA, an undertaking had to be secured. Time had to elapse, and a follow-up inspection had to be done in order to see whether the problem had been resolved. If not, a compliance order had to be issued. Non-compliance could land employers in court.

In terms of enforcement, the impact was not as desired. The inspectorate was not getting the cooperation from the courts that it needed. The penalties that the courts ordered had to bite, which it did not, because they were not severe enough.

Ms Nxawe replied that it was a criminal act to violate the
Occupational Health and Safety Act, but the inspectorate had no teeth. This was why the inspectorate was proposing amendments to the BCEA to strengthen inspectors. It wanted to do away with securing an undertaking. The compliance order had to carry such weight so that it could be implemented and enforced.

The Chairperson thanked all present for their participation.

The meeting was adjourned.




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