Farm visits: Department of Labour briefing

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Employment and Labour

27 November 2012
Chairperson: Mr M Nchabaleng (ANC)
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Meeting Summary

The Department of Labour (DOL) gave a report on the inspections that had been done, following on oversight visits by the Portfolio Committee to a number of farms, where certain problems and concerns had been highlighted. The farms to be visited were divided into groups, to ensure consistent visits. The DOL had looked specifically at contraventions of the labour relations legislation and requirements, as well as compliance with Occupational Health and Safety (OHS) on the farms, and indicated whether corrective action had been taken. Most of the farms in Group 1 showed similar labour relations contraventions, to do with payslips not being provided, lack of employment contracts, no proper demarcation of hours worked at night, and some farmers were failing to pay over UIF contributions on behalf of their workers. Others were making deductions for items purchased from the farmers that were not necessarily within the one-third limit. Most of the farmers, once they were issued with compliance notices, proceeded to correct these contraventions. There was a case in which the payments were made on the day before the visits, so there was not consistency in meeting the legislative requirements. In relation to Occupational Health and Safety, a number of farmers were not providing eyewash and washing facilities for workers who had been handling chemicals, were providing inadequate protective gear, or failing to provide the necessary safety measures on machinery, and some had issued facemasks that were faulty and could not be worn, as the workers were unable to breathe through them. Some farmers implemented corrective action once notified by the DOL.

The Committee had made some broad recommendations to the DOL, following its oversight and the Department gave feedback. The Committee had recommended that the DOL must strengthen the training skills and advancement of inspectors, and conduct more comprehensive inspections into occupational health and safety. This was an ongoing matter with which the DOL was dealing.  The second recommendation was that precise interventions were required, tailored to the particular challenges being faced, and in this regard the DOL reported that it had now managed to get specific allocations from National Treasury to allow for specialisation of inspectors, was setting new job descriptions and recruiting in specialist categories, or taking inspectors through specialist training. The Committee had recommended that the DOL must do holistic and high-quality inspections of the working environment, rather than focusing on administrative compliance. The DOL, in response, had changed its approach and was doing as the Committee wanted. The fourth recommendation emanated from complaints that the Committee had received about the inspectors, in particular that they tended to side with farmers, and would not consult properly with workers, and to correct this the DOL said that it had revised the Code of Conduct and had carried out training programmes to inform inspectors of their duties. The challenges that the DOL was facing in regard to the inspectorate were outlined. There was a high turnover of inspectors, because of a lack of career paths, and higher salaries being offered elsewhere, although the DOL did try to tie its inspectors into contracts in return for training, was investigating other retention strategies and increasing the pool of inspectors, as well as moving to a specialisation model.  There was a partnership with Witwatersrand University to provide training for inspectors.

Members commented that whilst there was some useful information in the DOL’s report, it had not touched on many issues such as racism, assault, inadequate housing and ablution facilities. The DOL responded that it had concentrated, in this report, on matters falling under the DOL’s direct responsibility but assured Members that it did escalate these kinds of problems to the correct department or entity when they were encountered. Members also wanted more detail on what action the DOL had taken against inspectors who were not acting properly, saying that the Code of Conduct and roadshows were not adequate, and full disciplinary inquiries were necessary. The point was also made that if inspectors wanted their salaries to improve, so must the work they produced. They said that specialisation was a topic under discussion for many years and perhaps the Department was not moving with enough speed on this point. Other questions related to migrant workers, legally or illegally in the country, who left the country before being paid, whether the Department was providing sufficient assistance to its inspectors, the options for vehicles and fleet management, allowable deductions and the need for transformation, particularly in the Western Cape. The DOL noted what it was doing, and said some issues would be addressed in the Employment Services Bill.

Meeting report

Farm visits: Department of Labour briefing
Mr Sam Morotoba, Deputy-Director General: Public Employment Services, Department of Labour, introduced the members of the team from Department of Labour (DOL or the Department).

Mr Teboho Thejane, Chief Director: Provincial Operations, Department of Labour, noted that the Department had divided the farms into two groups to ensure that the Department could cover a wide range of farms in a short space of time. He noted that the report would outline what had been found, in relation to contraventions of labour relations and occupational health standards (OHS), and the interventions or corrective actions taken.

At Mildelplaas farm the inspections found certain labour relations contraventions, including lack of information concerning pay, written particulars of employment and night work. These issues were corrected by providing payslips and contracts of employment that reflected all the information. The employer complied with the notices issued. There was also an OHS contravention, since the employer should have, but failed to wash contaminated protection (PPE) gear. The farmer also had to provide chemical training to employees, free of charge, as well as to replace the equipment when necessary. In addition the farmer had to provide shower and eye wash facilities for employees using chemicals. Lastly the employer was to provide power take-off covers on the machines. The farmer took corrective action and provided protective gear for the farm workers. Covers were also restored to ensure a safe operation.

Several other farms were found to be in similar contravention of occupational health standards. Farmers were not providing protective gear for farm workers who were handling hazardous chemicals. In addition some farmers were also failing to provide facilities were workers could shower after handling chemicals, or where they could wash if chemicals accidentally got into their eyes. Groenvlei and Kooran were examples of such farms.

At some other farms, the farmers were also at times found to be in contravention of labour relations requirements. Farmers were not providing their employees with payslips and they were not paying the employees’ contributions to the UIF.

At farms in group 2, similar problems were found. Farmers were found to be providing equipment that was not adequate to protect workers from chemicals. At Vira and Lord Cellars there were very few workers and it appeared as if no contraventions had taken place.

The Chairperson interjected to ask why the report on Vira and Lord cellars was phrased as if nothing had been done at the farm during the Department’s visit. He stated that very little detail was provided. He also noted that at Sewfontein farm there were some labour relations contraventions but the farmer had paid the workers’ UIF contributions the day before. This created the impression that any compliance measures undertaken by the farmers were simply window dressing mechanisms. He asked for further explanation on these issues.

Mr Thejane explained that the Department had probed the farmers about the contributions, and were informed that the contributions had been made. He added that the Department was interested in consistency and compliance.

Mr Thejane then continued with the presentation. He explained that some farms such as Goudyn were providing masks for their workers, but the workers were not using those masks. The officials from the Department tested the masks and found that the masks had inadequate ventilation, making it impossible for the workers to breathe. The farmer was asked to replace the masks.

At Wyserdrift, farmworkers were buying from the farm store and this led to unnecessary deductions from their pay. At Drienfontein, the farmer was informed that the workers did not have to purchase PPE equipment themselves, but instead the farmer must provide it.

Some farmers were instructed to replace their old wooden doors with steel doors in order to modernise their operations. In one instance, the farm owner was providing the farm workers with a crèche, but it was situated in a dusty building that had no proper ventilation. In this case the farmer was asked to move the crèche, and he did, on request, show the Department the building to which he intended to move that crèche.

Mr Thejane then went through the recommendations that had been made to the Department, by the Committee, following their oversight visits, and a follow up on the inspections. The first recommendation concerned training skills and advancement. The Department had to strengthen its occupational health and safety inspections to conduct comprehensive inspections of the farms. A number of initiatives were put in place to address the issue. The training and skills development of the inspectorate was a continuous process. Training was to be conducted to improve the investigative ability of the OHS inspectors. A learnership programme was being developed that would seek to bring all inspectors who were not already at that level at least up to NQF 5. Training on interpretation would also be facilitated by the Justice College.

The second recommendation was that precise interventions had to be applied, because various economic sectors faced different challenges. Inspectors had to understand these challenges in order to improve the quality of inspections. The Department was therefore urged to speed up the specialisation dispensation of the Inspection and Enforcement services (IES), especially in the vulnerable sectors such as agriculture and domestic services. The Department was now in the process of finalising job descriptions in each specialisation category and the OHS would also be categorised according to areas of specialty.

The third recommendation was that the Department had to focus on quality inspections that made a holistic assessment of the working environment, as opposed to inspections that focused on administrative compliance. The Department was now doing this with inspections, as the inspectorate had moved away from following a checklist only, to considering all areas of non-compliance. However, it was realised that certain issues of non-compliance fell outside the ambit of the inspector. In such cases, the provincial offices across the country used their working relationships with all the relevant government departments to ensure that these matters were reported, through the structures, to the relevant body. This might, for example, be the provincial departments dealing with housing, or environmental matters.

The fourth recommendation arose from complaints by farmworkers about the conduct of the inspectors. The Committee had recommended that the Code of Conduct of inspectors had to be addressed. The Department had now developed a Code of Conduct, communicated through roadshows. Norms and standards were developed on how inspections were to be conducted. The implementation was a continuous process that was being assessed by provincial offices and relevant business unit managers.

Mr Thobile Lamati, Chief Inspector: Department of Labour, dealt with the progress of the inspectorate’s specialisation.  The inspectorate had experienced a high turnover, resulting in the loss of requisite skills and competencies. The inspectorate had then adopted a generalist approach to inspections, with a resultant decline in enforcement capabilities. However, later new sectoral determinations were introduced that made for an increase in the scope of work for workers. As a result of the sectoral determinations, the reorientation of the inspectorate became necessary. The inspectorate also aimed to improve the enforcement capabilities, through implementation of specialised and competency based training. The inspectorate was also able to increase the number of inspectors because National Treasury allocated R28 million in 2012 and R32 million in 2013 to this objective. Ministerial approval would be obtained to create posts based on the allocation letter.

The inspectorate devised a new specialisation model, which served as a departure from the current practice where one inspector had to do everything. The model provided for specialised career pathing of an inspector, as well as better monitoring and enforcement of the labour laws. The new model would enable the inspectorate to measure the impact of legislation in the areas of specialisation. Currently, the DOL was recruiting inspectors and the Minister was being asked to create the posts. There were consultations with the unions at the Departmental Bargaining Chamber. Capacity building was under way and Provinces supplied names of people to be trained. 150 inspectors would be trained on the learnership programme, and 20 inspectors would go through the Recognition of Prior Learning (RPL) process. Witwatersrand University would provide a training programme to commence in the new financial year. Procurement had commenced, and the sole provider status of Wits was being verified. The Committee would be kept informed of the capacity building.

Discussion
The Chairperson explained that the Committee had asked for this report from the Department to clarify some outstanding issues. However, there were some matters discovered by the Committee during its oversight visits that were not mentioned in the DOL’s report. Housing, for instance, was a major problem. There was no mention of the relationship between farmers and workers, which was important as the Committee had seen some instances of racism and assault. There were often problems with ablution facilities and in some cases the workers were having to relieve themselves in the bushes, whilst in others adults and children were sharing toilets. The report also did not set out what follow-ups had been done at some farms.

The Chairperson reminded the DOL that there had been allegations that some of the inspectors were “sweetheart” inspectors, who did not carry out the inspections properly and did not consult as they should with the farm workers. Farmers had also set out what they needed from government, but nothing was said about this in the report. The issues of PPE appeared often in the first part of the report, yet the DOL had made no specific recommendations about workers potentially affected by chemicals, nor the effect upon their children. There was also a worry about environmental degradation. He wanted to know exactly what the roadshows carried out by the inspectorate accomplished in relation to the Code of Conduct.

Mr F Maserurumule (ANC) stated that he was concerned about the long-term transformation of the entire sector in the Western Cape that was supposed to be addressed. He agreed with the Chairperson that there were several concerns about housing, transport, working and living conditions. The issues were not limited to employment but went to very real, life and death situations. Agriculture and mining were very important sectors.  Transformation in the Western Cape in particular was therefore supposed to be a priority.

The Chairperson remarked that this was not a party issue. He had asked for specific exclusion of certain matters. He explained that the mission of the Committee was not to address racially sensitive issues.

Mr E Nyekemba (ANC) commented that the presentation was well made, because it reflected the work that had been done and echoed what the Committee encountered during the oversight visit. The issue about specialisation was not new, however, since he had been hearing about this since 2009, and he felt that it was not being given the urgent attention that was needed. He did not think that the roadshows and the Code of Conduct were enough to respond to some of the serious allegations levelled against the inspectors, and the DOL was expected to deal specifically with such allegations. He added that deductions from salaries, both for UIF and for rent and groceries, had to be investigated and brought in line. He wondered what legislation covered these deductions.

Mr S Motau (DA) agreed that specialisation should have been attended to a long time ago. He enquired about the high turnover of inspectors, whether the Department had established why the inspectors were leaving, where they were moving, and how the Department intended to retain inspectors in the future.

The Chairperson commented that in one sense, turnover was not negative, because at least it meant that the Department was engaging in job creation. However, the Department must ensure that it did retain good inspectors.

Mr Motau also wanted to know what was being done to ensure consistent and proper compliance with OHS standards.

Mr A van der Westhuizen (DA) emphasized the importance of inspection services and was concerned about the productivity of the labour inspectors. The inspectors were complaining that they were being underpaid, but he argued that if their pay were to increase, then so must their productivity. Inspectors were currently doing an average of 170 inspections each year. Another complaint by the inspectors was that there were limited career advancement opportunities, and they further complained about a lack of equipment, saying they needed assistance to work faster and better. He also commented on the transport, saying it would be cheaper for the DOL to give the inspectors a private transport subsidy than to run a Departmental fleet, where the ratio was one vehicle to two inspectors. Fleet management was crucial.

Mr Morotoba stated that the comments by the Chairperson were true, as a wide range of concerns had been presented. However, the Department had isolated those that fell within its own ambit in the sense that the Department exercised legislative control over them. Other problems needed work at a bilateral level – for instance, in cooperation with the Department of Agriculture or the Department of Mineral Resources. There were other complications with migrant workers. There were different laws protecting regular and irregular migrants, and some of those in the latter category might find themselves having to leave the country, or being deported, before they were paid. This matter had to be discussed between DOL and Department of Home Affairs.

The Chairperson asked how a person who was to be deported could be allowed to stay in the country while their case was pending.

Mr Morotoba replied that the issue of irregular migrant labour needed consultation with the Department of Justice and Constitutional Development, as well as Department of Home Affairs. Some of the matters were also being raised at SADC level. Some governments were arguing that the outstanding money should be paid to those governments, and paid out by them to the workers. The DOL was also raising some of the problems in the Economic Cluster in government.

Mr Thembinkosi Mkalipi, Chief Director: Labour Relations, Department of Labour, added that the foreign workers would in future be regulated by the provisions of the Employment Services Bill, once enacted. The DOL was given the prerogative to deal with foreign labour, in an attempt to close the gap that existed in regard to migrant labourers.

Mr Mkalipi answered questions about the deductions by confirming that the deductions could not amount to more than a third of the employee’s salary. It could also not be a condition of employment to require employees to buy from the farmers.

Mr Morotoba answered the questions about the fleet, saying that this was indeed one of the biggest challenges in the Department. It was in a transitional phase, where one system was being phased out in favour of the Department introducing its own fleet and subsidising it. He explained that in certain provinces there were vast distances to travel, which this decreased the life span of the vehicles.

Mr Lamati responded to the questions raised on the inspectors. An inspector had to choose whether to exercise the right to apply for a subsidised car, because this subsidy had financial and tax implications. If an employee applied for this subsidy, s/he would have to ensure ability to pay the 30% portion required. The subsidy scheme also depended on kilometres driven, for an inspector had to travel at least 21 000 km per year, in order to qualify for the subsidy. Some inspectors had a very small radius within which they travelled, and would not therefore meet the kilometre subsidy requirements. This had to be discussed with the Department of Transport. He heard the complaints about needing more assistance, and said that laptops or other means of electronic communication would be provided to inspectors so that they could perform more efficiently.

In regard to the job losses, he noted that most inspectors, when they left DOL, moved to other government departments, in particular the Department of Public Works, or to private companies. They left to find better prospects elsewhere. The DOL could not match salaries being offered in the private sector. He agreed that performance needed to improve but said that the inspectors worked under difficult conditions. He noted that in some cases, inspectors had been relieved of their duties because in certain instances inspectors were acting as both inspectors and advisers at construction companies.

The Chairperson reiterated that the inspectors’ prior experience and training at DOL meant that they were still being usefully employed, and new inspectors were being brought in and trained.

Mr Lamati added that the Department had implemented Learner Inspector Programmes that indirectly trained people for other Departments. Matriculants would be identified, and the Department would pay for their studies in engineering. They would be obliged to join the Department for three years after graduation in return, but after that they were free to move.

The Chairperson stated that the inspectorate was the face of the Department and it was necessary to take into account the inspectors’ actions.

Mr Lamati reminded Members that the Department had for some time struggled to obtain funding to implement specialisation but eventually National Treasury had agreed. He noted the comment about the “roadshows” but said that perhaps this was not the right word, as it did not quite explain what had been done.

Mr Mkalipi lastly conceded that the DOL had not so far done anything to assess exposure to chemicals, but agreed that in future there should be periodic medical examinations.

Mr Thejane stated that, at a provincial level, various steps were being taken to tackle racism and the relationship between farmers and farmworkers. The Department had carried out both pro-active and re-active inspections and in those inspections had emphasised the need for full compliance with the Basic Conditions of Employment Act and Labour Relations Act. In some cases it carried out “blitz inspections” and the follow-ups to these were integrated as the work progressed. He noted that the issues around foreign workers were taken up with the Department of Home Affairs, the South African Human Rights Commission and the Public Protector. The DOL was fully aware of the need to treat these issues with sensitivity.  CEA and LRA issues. Foreign labourers worked with Home Affairs, the Human Rights Commission and the Public Protector. The Department was aware of the need to be sensitive around these issues. In some farms, when the Department raised concerns about protective gear, the farmers immediately proceeded to purchase the protective gear. Farmworkers also needed to be trained about the need to use protective gear consistently and properly.

The Chairperson said that no amount of training would help if the protective gear was not already available and provided. He feared that workers were still at risk of being harmed by chemical contamination.

Mr Nyekemba pointed out that the issues surrounding deductions had not been dealt with fully.

Mr Lamati also stated that the inspectors were looking into claims regarding non-payment of UIF contributions. At times, the DOL had found that deductions were being made retrospectively, but the inspectors were trained to look into and show outstanding deductions.

A Member asked whether the Department of Labour could charge any subsequent department or private company who poached its employees a fee equivalent to the amount of money spent on training that employee.

Mr Mkalipi stated that this was not possible. However, the DOL could “lock” employees into agreements that for a certain period after training, they would not be permitted to leave the DOL.

Mr Maserumule appealed to the Chairperson, politicians and officials to agree on issues that had to be urgently addressed and finalised. It was not enough for the Department to constantly claim that it was on a learning curve.

Mr van der Westhuizen asked about the sectoral determinations in the agricultural sector that could only be changed in April. The Unions had created an unrealistic expectation that the matter would be resolved in December. He wanted to know whether anyone was engaging with the unions to tell them that this was an unrealistic deadline.

The Chairperson replied that the Departmental officials could not answer this question, because they could not speak for the Minister.

The meeting was adjourned

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