Department of Labour on International Labour Organisation conventions

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Employment and Labour

30 July 2014
Chairperson: Ms L Yengeni (ANC)
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Meeting Summary

The meeting focused on two International Labour Organisation (ILO) conventions.  These were the ratification of the 1986 instrument on the amendment to the constitution of the ILO, and the recommendations concerning the national floors of social protection.

Members were told the ILO operated on the same basis as the United Nations Security Council by having permanent members, called members of economic industrial importance.  African countries and most of Asia, except for China and Japan, did not have permanent members in the governing body and could only be rotation members.  It had been argued by the African group that Africa had been discriminated against in terms of the composition of the ILO governing body. The instrument was trying to ratify the anomaly by changing the constitution, to make sure that the representation of the governing body of the ILO took into consideration the geographic, economic and social interests of different constituents. This could be applicable only when ratified by a number of countries, and South Africa was one of the member countries of the ILO in the process of trying to ratify this proposal, which had been adopted in 1986. The applicability of the proposal depended on its adoption by a majority of the member states, which had taken a very long to happen.  The African member countries had taken a decision to embark on the process of ratification of this Constitution because it was in their best interests to be permanent members of the ILO governing body.

The ILO recommendations concerning the national floors of social protection were not compulsory or binding guidelines advising countries on how to deal with national social protection floors, but were intended for a country to take into consideration when they introduced legislation.  They did not need to be ratified, but noted by Parliament. This was important for South Africa as a country, because there was a discussion in the labour market about extending social security. As part of its programmes going forward, the DoL had taken a decision to make sure that all sectoral determinations introduced in the labour market had an element of social security, and had prioritised two for this five-year period -- the family sector and domestic sector. 

The DoL had submitted this recommendation for noting by the Committee because ILO member states were required to submit international labour standards adopted by the International Labour Conference to their Parliaments.  The aim was to ensure that competent authorities examined the instruments with a view to enactment, or other actions.
Members asked why it had taken so long for the convention to be ratified, and much of the discussion focused on the strategy South Africa needed to adopt in order to woo support from the major industrial nations, without alienating other nations in Africa.  It was unfair when South Africa had been voted off as a member of the governing body of the ILO.  It was a travesty because the nations which had replaced South Africa were countries with gross human rights violations, undesirable of the given membership.  Some African countries were fed up with South Africa’s presence at the ILO, and states like America wanted more compliant African countries within the ILO that they could squeeze to do their bidding.  This was not the case with South Africa.

The DoL responded that the major problem holding back the ratification of the convention was lobbying and diplomacy. This would not be achieved if South Africa, which needs Africa on its side, was going to go to the African group caucus and argue issues of compliance and human rights. These arguments would alienate some states, which in turn would not support the cause, and this was the major problem of diplomacy. Focus needed to be directed to aspects that would benefit South Africa as a country, rather than arguments which made moral sense but did not win victories.   Without African support, South Africa would not get the major thing that it wanted, and that was the ratification of the convention.
 

Meeting report

Opening remarks

The Chairperson said a short agenda for the day had been adopted, focusing on two International Labour Organisation (ILO) Conventions.  She apologized for this change from what had earlier been communicated in the programme, and said the legislations would be dealt with the next day.

Conventions of the International Labour Organisation

Mr Sam Morotoba, Acting Director-General, Department of Labour (DOL) opened the presentation by introducing the members of his delegation, and said the Department would deal with two Conventions.

Ratification of the 1986 instrument on the amendment to the constitution of the ILO

Mr Thembinkosi Mkalipi, Acting Deputy Director-General (DOL), tabled the presentation on the Conventions of the ILO.  He said the ILO operated on the same basis as the United Nations Security Council by having permanent members called members of economic industrial importance.  African countries and most of Asia, except for China and Japan, did not have permanent members in the governing body and could only be rotation members.  It had been argued by the African group that Africa had been discriminated against in terms of the composition of the ILO governing body. The instrument was trying to ratify the anomaly by changing the constitution, to make sure that the representation of the governing body of the ILO takes into consideration the geographical, economic and social interests of different constituents. This could be applicable only when ratified by a number of countries, and South Africa was one of the member countries of the ILO in the process of trying to ratify this proposal, which had been adopted in 1986. The applicability of the proposal depended on its adoption by a majority of the member states, which had taken very long to happen.  

The African member countries took a decision to embark on the process of ratification of this Constitution because it was in their best interests to be permanent members of the ILO government. The 1986 instrument of the amendment to the constitution of the ILO addressed four main areas.  These were: the composition and governance of the governing body of the office; the procedure for the appointment of the Director General; voting at the International Labour Conference; and rules governing how the Constitution may be amended.  Presently, in order to change the current constitution, a two-thirds majority of the members of the governing body was required, but there was still a long way to go because the instrument needed a further 22 ratifications, including at least three more from the states of economic industrial importance.  So far, 44 African countries had ratified the instrument and if South Africa ratified it, they would be the 45th.  The Department of Labour requested the approval of the Labour Portfolio Committee with the view to finalising the ratification process.

Mr Mkalipi said the ILO recommendations were not compulsory or binding guidelines advising countries on how to deal with national social protection floors, but were intended for a country to take into consideration when they introduced legislation.  They did not need to be ratified, but noted by Parliament. This was important for South Africa as a country because there was a discussion in the labour market about extending social security. As part of its programmes going forward, the DoL had taken a decision to make sure that all sectoral determinations introduced in the labour market had an element of social security, and had prioritised two for this five-year period -- the family sector and domestic sector.  It would be investigating two alternatives -- whether the sort of social security required was either the “problem fund” or the pension fund. National Treasury did not favour the problem fund any more, although there had been efforts towards equalization of the problem fund and the pension fund. The Department was in discussions with the National Treasury and the Department of Social Development about social security for domestic social workers, and therefore this recommendation by the ILO had come at the right time.  

When the Department started to debate the matter it would have to look at the levels of earning in the domestic sector.  Failure to do this would not make sense to introduce social security to this sector.  The cheapest pension fund which could be got would be 6% out of the pockets of domestic workers, giving them something to fall back on when they turned 60 years old.  On the other hand, however, this would be taking away 6% of their disposable income, hence the need to look at both issues.  This involved looking at the level of income of the sectoral determination itself and asking the question: how much should they earn for them to afford social security?  In terms of social security, such as unemployment insurance funds, social grants, free education and all the issues covered by the ILO, South Africa compared favourably to the rest of the world especially in Africa.  However, it did not meet all the elements of the ILO -- not all workers were covered -- and had gaps to close.  

The Department of Labour had submitted this recommendation for noting by the Labour Portfolio Committee, because ILO member states were required to submit international labour standards adopted by the International Labour Conference to its Parliament. The aim of this was to ensure that competent authorities examined the instruments with a view to enactment or other action.

Discussion

Mr M Bagraim (DA) commended the department on the presentation.  It was vital for Africa to get permanent seats on the governing body of the ILO by first getting the number necessary votes and to avoid being vetoed.  However, he was not sure what African states were doing to lobby for this. He thought the DoL could do the proper lobbying, but the Committee would help, especially those Members who had contacts in other African states as well as the rest of the world.  

The given recommendations were important.   Although South Africa stood head and shoulders above many other countries, more needed to be done.   For instance, the Workman’s Compensation and the Unemployed Insurance Fund (UIF) needed close monitoring, where many months of delays led to the loss of vital papers and several other complications, as reported by the media.  He was pleased that the Department was putting a computer programme in place to sort out some of these issues, but he requested that it be established and running within six months in order to limit the pressure on the social security net.

Domestic workers often complain that they still face the effects of apartheid laws barring them from registering for workman’s compensation.  These workers were the most down trodden, yet formed part of the work force and were therefore in urgent need of help.  The Minister had stepped in with a ministerial determination to help the domestic work force, and had requested the Committee to intervene as well to avoid stretching the social security net.

He was aware of the fact that the country had many problems to deal with, but said that both the unemployed and employees be considered, even though this would be deemed to be outside the ambit of the Department of Labour, as the given recommendations applied equally to them.

Mr I Ollis (DA) said that his understanding of the presentation was that it proposed the scrapping of permanent membership in the ILO, which could be argued as colonialist and unfair, rather than adding African countries as permanent members.  He thought this arrangement should have been scrapped a long time ago.  The proposal should be sent to Parliament with a recommendation of ratification from the Committee.

It was unfair when South Africa had been voted off as a member of the governing body of the ILO.  It was a travesty because the nations which had replaced South Africa were countries with gross human rights violations, undesirable of the given membership.  The move was absolutely outrageous, and he urged the DoL to double its lobbying efforts -- like lobbying behind the scenes (a similar practice used in Parliament) -- and support the team from the Department of Labour in Geneva to ensure that South Africa regained its position in the ILO.  He thought that some African countries were fed up with South Africa’s presence at the ILO, and states like America wanted more compliant African countries within the ILO that they could squeeze to do their bidding.  This was not the case with South Africa.

He asked why it had taken so long to ratify an instrument from 1986, but added that he thought permanent members were lobbying against it.  This in itself was a big problem in order for ratification to move forward, because it required the endorsement of, among others, states of economic industrial importance. He asked if there was a chance to lobby nations like Germany and Canada, to endorse the instrument.

He urged the DoL to write its own laws in the field of labour, to implement the details of what could be considered as best suited for South Africa, because the recommendations from the ILO were guidelines of a non-binding nature, which were of great importance.

Ms P Mantashe (ANC) said there was no reason for the Committee not to agree with the recommendations that had been presented.   Members should ask themselves why it had taken so long for the instrument to be implemented, since the ILO had been a discriminatory body from the very outset, and she was not sure if the major nations would support South Africa’s position. What it needed to do was gauge and approach its allies, like Public Services International, and many other affiliates sympathetic to South Africa.

Ms F Loliwe (ANC) asked about the general performance of South Africa in terms of ratifying international conventions.

The Chairperson wanted to know why other countries were not supportive of South Africa’s lobbying for the ratification of the convention, because it was clear that the Department had encountered some challenges in terms of lobbying, which it had been doing since 1986.

Mr Morotoba said that lobbying needed to be looked at in terms of two perspectives -- the current scenario and the future scenario. The current scenario was that for years, South Africa had been chosen as part of the governing body of the ILO because of its labour laws. It was also bound by the structures of the African Union (AU), which barred it from behaving like the colonialist countries within the ILO, which had refused to accede to the whole question of rotation, thus maintaining their status within the governing body. To try and resolve this problem, the principle of rotation had arisen after discussions with the AU.   South Africa had had to agree to rotation at a regional level within the continent, which had been divided into four regions.  This was why SA had lost its membership on the governing body of the ILO, because it was under the Southern African Development Community (SADC) and it could not afford to behave like the very same countries that they were trying to remove from permanent positions by changing the constitution. Further, South Africa had agreed to rotations on the basis that rotating countries which had the baton, but were unable to take up their positions within the ILO, would ask any other country within the SADC region to stand in for it.  This was the current predicament of Lesotho, considering what was happening in the country.

He believed that South Africa’s economic situation was advantageous. For example, it was the only African country in the group of twenty major economies, and had done very well in terms of lobbying and working with other African countries. The economic advantage of South Africa became a problem for other countries, especially those to the north that were not appreciating its status.  To their advantage, there were some countries which believed that South Africa would articulate the position of the African continent by acting as an ambassador, with the perspective that all countries were different and would begin to move towards ensuring that their laws were in line with international best practices. However, there was regional and continental politics working against South Africa’s favour, especially when it came to participation in the ILO.

In order to enforce this convention, South Africa had turned to the countries with which it had bilateral relationships and had participated in forums to try and obtain agreement for the acceptability of ratification.  However, they still had between five to ten years to go in order to attain ratification, depending on the rate at which the remaining countries -- especially the ones of chief industrial importance -- would be prepared to ratify the proposed amendment. Further ratification of this instrument in Africa had also been hampered by internal conflicts in some of the African states. When these conflicts begin to subside, there was a better chance of support by those countries.

South Africa had a good track record regarding ratification of international conventions and was in a better position to assume the representative nature for Southern Africa on the governing body of the ILO.  Countries like the USA, on the other hand, were major funders of these organisations, but ratified very few of their conventions.

Mr Ollis said he was appalled a few years ago when South Africa had lost its seat on the governing body of the ILO to a country which had been censured by the United Nations (UN) for having the worst case of human rights violations, like endorsing child sex slavery for the military. He was of the view that despite such nations ratifying this instrument, they should not be allowed to take on membership fn the governing body of the ILO.  

DoL’s response

Mr Mkalipi said the major problem holding back the ratification of the convention was lobbying and diplomacy. This would not be achieved if South Africa, which needs Africa on its side, was going to go to the African group caucus and argue issues of compliance and human rights. These arguments would alienate some states, which in turn would not support the cause, and this was the major problem of diplomacy. Focus needed to be directed to aspects that would benefit South Africa as a country, rather than arguments which made moral sense but did not win victories -- like arguments against the appointment of Zimbabwe as the chair of the Human Rights Commission. Without African support, South Africa would not get the major thing that it wanted, and that was the ratification of the convention.

South Africa could not afford to lobby using the tactics that Mr Ollis was suggesting, because analyzing the African landscape meant that they would never get any support on that.  SA needed to make friends with African countries, and be strategic in deciding what the most important aspects of the matter were.

He said the Department knew that the only way forward depended on the countries with veto powers, and had directed their efforts towards lobbying for their support.  Rushing to ratify the convention without the support from five countries of industrial importance was not going to make any difference. South Africa and the rest of the African states had decided to do a symbolic ratification of the 1986 instrument as a strategy to get the support of the countries of chief industrial importance and so far Italy, India and 45 African countries had ratified and supported this process.

The ILO was closely linked to other organisations of the United Nations, like the Security Council, and some of the arguments concerning the ratification of the 1986 instrument would affect decisions in the other organisations which had the same memberships that South Africa was lobbying for support. Thus the chances of being supported by those countries, especially with permanent membership, were slim if the contents of the convention were to affect them elsewhere.

Despite a few hiccups, the UIF as an established organization was doing very well.  He wanted to clear the Member’s impression that it was not performing to standard. The exceptional cases hindering its performance were going to be dealt with, so it did not make sense to propose additional social security instruments.  An amendment was coming to Parliament on the Compensation Fund, to deal with the issue of compensation. It needed to be approached with an “outside-the-box” thinking. This was because presently, employers in South Africa had to submit declarations every year.  However, when a domestic employer submitted a declaration, how did one ensure that it was correct, and the transfers for this process might even be more expensive than the money they earned. The issue of domestic social workers also needed to be looked into.

He said the issue of the unemployed was a major challenge.  The Department of Labour had the mandate to deal only with the employment part of the problem.  The Department of Social Development was responsible for the unemployed in terms of social security, social income and poverty.

He referred to the ongoing case on whether Unemployed Insurance (UI) covered informal workers, and said that these were all debates about social security and that it was hard to determine when persons in the informal sector were unemployed.  He wondered whether they were unemployed if they decided not to sell their foodstuffs for a month, which was different from the labour market, where it was clear that one was unemployed once they had been dismissed from work

South Africa had ratified 27 international conventions, some of which were more fundamental than others. The ILO had eight fundamental conventions, like the convention on the freedom of association and the right of trade unions, all of which had been ratified.  It had four governance conventions, two of which had been ratified and 177 technical conventions, 17 of which had been ratified.  On the other hand he said that there were some conventions which needed to be de-ratified. These had been ratified many years ago, but times had changed and they could no longer be supported.  For example, there was the convention on women in the mining sector, which said that women should not be allowed to work in the mines and the jobs should only be reserved for men. This was contrary to the Constitution, which had a charter encouraging women to work in the mines. Over the years, the ILO had been asking for reports on the implementation of the convention, but with no response. There was also a convention on night work for women, ratified in 1921 and revised in 1935, which said women should not work at night. These conventions were contrary to South African legislation and what we believed in as a country, so they had to be denounced.

Mr Mkalipi said that there was a love hate relationship between South Africa and the rest of Africa, mainly because of its industrial development. Africa wanted South Africa to front its cause with international organisations, but did not want its dominance.  Hence South Africa needed to be very strategic and careful when dealing with these issues, otherwise it would end up facing the same accusations as the permanent members of the United Nations.  

Mr P Moteka (EFF) said that South Africa needed to be a real African in Africa and not “Euro-Africa” when lobbying for the support of other African countries.  It needed to check how many African states were on its side to evaluate the number they needed to lobby for support. After winning this support, South Africa could go out to the rest of the world to seek their support without compromising on the interests of Africa.

Ms Loliwe said that the Committee was supposed to equip the Department, as well as itself, on the mechanisms of how to get support from other African countries, rather than to speak of the problem as a South African one.  A solution to this problem was needed, rather than shifting the goal posts by looking for someone to blame.

The Chairperson thanked the Department for the presentation, as well as all those positive on the convention.   Members would help with the lobbying.  She understood the predicament which the Department had gone through, but Members of Parliament would offer more support in the future.

Adoption of minutes

The Chairperson thanked Members for their understanding on the failure to follow the programme as earlier communicated.  This had been due to the intense programmes of the Committee from the previous week. The legislation could not be tabled in the current meeting, because she had met the personnel from the legal section only the previous day.  She had asked her what the contents of the bill were and what amendments had been made.  It would have been unfair to expect her to turn up today to present the legislation to the Committee.

The minutes of 2 July: Mr Bagraim proposed; Mr D America (DA) seconded; minutes adopted.

The minutes of 3 July: Ms M van Schalkwyk (ANC) proposed; Ms Mantashe seconded; minutes adopted.

The minutes of 9 July: Mr America proposed; Ms Mantashe seconded; minutes adopted.

The minutes of 10 July:  Mr America asked for guidance on whether it was appropriate to refer to Members as Ms or Mr on page two in the minutes, and suggested it was more appropriate to refer to them as “honorable.”  The Chairperson said that “honorable” was more appropriate within the House, but any title used was acceptable.  Mr Bagraim proposed; Ms van Schalkwyk seconded; minutes adopted.

The Chairperson said that all four sets of minutes had been adopted and asked members to make comments on any issues which had not been dealt with.

Mr Bagraim said there had been a lot of comments in the recent days coming from the proposals of Mr Mantashe from the ANC’s Lekgotla about balloting, and asked whether it could be put on their agenda and debated on.

The Chairperson said this was also a matter for her study group, and requested that it be dealt with the next day to avoid making a response on an issue which they had not reflected on.

Mr W Madisha (COPE) said the issue of balloting needed to be reflected, because it was a proposal by one member to his political party, which had not been put forward for the other political parties to consider.  If the party or the Department wished to table the same matter before the Committee, then it would be looked into because the Committee understood all the processes as they were envisaged in the Labour Relations Act.

The Chairperson said the ANC would meet to make a decision on the request, and revert back to the Committee.

Mr Moteka said that Mr Mantashe’s proposal had been communicated to the public, and was not a matter for the Committee to discuss.

The meeting was adjourned

 

 

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