Labour Bills: public hearings day 2

Meeting report

The Acting Chairperson welcomed everyone and indicated the public hearings on the Labour Bills were a continuation from the previous day.

National Minimum Wage Research Initiative submission
Dr Gilad Isaacs, Coordinator: National Minimum Wage Research Initiative (NMW-RI), University of the Witwatersrand, made a submission with specific attention to issues relating directly to the institution of the national minimum wage (NMW). The legislation has a number of significant strengths, amongst others, these include: recognising the role the NMW can play in reducing poverty and inequality and spurring domestic demand and productivity increases in the economy; setting the NMW at an acceptable starting point (R20 per hour) that can be increased over time; ensuring universality with appropriate tiers and exemption procedures; excluding non‐basic wage payments from the calculation of the NMW; establishing a dedicated body comprised of the social partners to oversee the implementation, monitoring and revision of the NMW; and amendments to the Basic Conditions of Employment Act (BCEA) that recognise the need for better enforcement.

The Bills also have a number of serious weaknesses. These include: insufficient attention to the role of the NMW in reducing poverty; the definition of ‘worker’ which stood to exclude independent contractors; inadequate protection of vulnerable workers against casualisation; the undermining of sectorial determinations and the deletion of the powers of the Employment Conditions Commission (ECC); the exclusion of Expanded Public Works Programme workers from the NMW; the exclusion of those in learnerships from the NMW; the failure of the annual review process to protect the real value of the NMW; vagueness surrounding the annual review and medium‐term target; insufficient independent technical support for the NMW Commission; the role of employer organisations in exemption applications; and weaknesses in the enforcement procedures and resources associated.

The NMW Bill pays insufficient attention to poverty as a motivating factor behind the implementation of a NMW.
It was laudable that the implementation of the NMW in South Africa had been linked to the reduction of inequality, which poses a grave challenge. However, given the high levels of poverty amongst workers and the fact that minimum wages are aimed at alleviating working poverty, there was surprisingly little mention of poverty and working poverty in the Bills. In addition, the International Labour Organisation (ILO) also makes a specific point of noting that wages should cover the needs of workers and their families. It was recommended that, under “recognising” in the Preamble of the NMW Bill, “high levels of poverty and working poverty” are noted; Clause 2 of the NMW Bill include: “ensure, over time, wages meet the basic needs of workers and their families”; Clause 2 of the NMW Bill include “to reduce wage inequality”; and Clause 11(b) of the NMW Bill include “and the alleviation of poverty and working poverty”.

Dr Isaacs emphasised the need for universality and protecting vulnerable workers. The Bills did not fully acknowledge this as the current definition of ‘worker’ excludes independent contractors from the NMW. By excluding “independent contractors”, those performing “task‐based work, piecework, homework, sub‐contracting and contract work” which can range from Uber drivers to shoe makers may be excluded from coverage of the NMW. Applying the existing definition of “employee” (as in the BCEA) poses a significant risk to these workers, who are in danger of working long hours with the equivalent of low hourly wages. It also flies in the face of international trends, existing local agreements and the recommendation of local experts. It was recommended that the definition be altered to ensure that ‘worker’ means any person who works for another and who receives any payment for that work (in money or in kind).
The Bills offer insufficient protection against casualisation. Therefore, it was recommended that this stipulation of a minimum number of hours of work be included not only in the BCEA amendments but also referenced in the NMW Bill. It was further recommended that, given trends towards increased casualisation, workers working less than 27 hours should receive one third more than the NMW hourly rate.

On sectoral determinations, the amendments to the BCEA irrationally remove a tool available to government to protect the most vulnerable workers and reduce poverty and wage inequality –the ability to amend and create new sectoral determinations (SDs). Doing away with the ability to ‘manually’ update existing SDs and institute new ones will, in the long term, disadvantage the most vulnerable workers. It was recommended that the powers associated with the ECC with respect of SDs be given to the new National Minimum Wage Commission (the Commission) as established in the NMW Bill.

On Schedule 1 tiers, the NMW Bill did not provide for the phasing out of the lower rates (or ‘tiers’) for domestic and agricultural workers. It was recommended that the phasing out of these tiers be expressing included in Schedule 1, including the necessary mechanism and timeframes.

On the Commission and annual reviews, the decision to impose an annual review of the NMW was welcome. However, while the NMW Commission may recommend an adjustment, an adjustment was not mandatory, nor was a minimum increase stipulated. Given that in no circumstance would it be desirable for the NMW to lose real value it was insufficient that the Commission must, amongst other factors, consider (as noted in clause 7(b) (i)) “inflation, the cost of living and the need to retain the value of the minimum wage”. It was recommended that: a minimum increase of CPI as faced by the lowest quintile (or lowest two) be mandatory; 7(c) further consider –(i) inflation as faced by the lowest two quintiles, the cost of living and the need to retain the real value of the national minimum wage.

The NMW Bill did not reflect the desire to progressively increase the real value of the NMW over time. Ensuring a minimum inflation- linked increase (as faced by the poor) would serve as a safeguard against the NMW losing value. But the Bill should also reflect the desire to progressively increase the real value of the NMW; this was essential if the NMW is going to reduce inequality. Towards this end it was recommend that under clause 7(a) it be added that the Commission must promote “the progressive increase in the real value of the national minimum wage subject to considerations noted in section 7(c)”. To be technically correct “value” should be “real value” throughout.

The Bill was currently unclear what the purpose of the medium-term target is, and what it meant (in clause 6(a) (i)) to promote “the medium targets referred to in section 11(d)”. Therefore, it was recommended that the Bill make it clear that the medium-term target, as expressed in the February 2017 agreement, was intended to provide a goal to progressively increase the value of the NMW, based on internationally accepted benchmarks, such as minimum living levels and the proportion of the NMW to the average wage. Also, Clause 11(d), which mandates the Commission to “set medium-term targets for the national minimum wage within three years” must be clearer.

On powers of the Minister relating to annual reviews, the powers of the Minister in rejecting the annual review were unclear and the Bill did not require the Commission’s report be made public. It was recommended that: the powers of the Minister be made clearer in this regard. In the interest of transparent governance, it be stipulated that the annual review report be made public. It could further be stipulated that it be tabled in Parliament along with amendments to schedules 1 and 2.

On the composition of the NMW Commission, it was not clear in clause 10(1) (a) if the chairperson of the Commission was one of the three independent experts, a fourth independent person, or drawn from the existing members nominated by social partners. This confusion was compounded by reference to “four independent experts” in the NMW Bill Explanatory Memorandum paragraphs 3.8.1 and 3.8.2. Also, the current arrangements regarding the secretariat of the NMW Commission do not provide sufficient capacity or operational independence. On its accountability, it was noted that the Bill and associated documents seem to imply that the Commission Secretariat will be within the Department of Labour (DoL). It was unclear what the reporting lines were, and whether the Commission has direct authority of these staff. It was recommended that the Commission be given direct authority over the seven planned employees of the Secretariat. On capacity, the Commission offers an opportunity to develop, and highlight the importance of, in-house capacity, and for state, and quasi- state, institutions not to rely on outsourcing their research and other tasks. The evidence which the Commissioners must consider is extensive. Therefore, it was recommended that the Commission should develop the necessary expertise, in-house and under their direct authority, to undertake this research and that sufficient resources be provided to do so. This research could interface with other work of the DoL and had a potentially positive departmental impact.

Dr Isaacs commented on exemptions and regulations. The exemption system outlined in the NMW Bill was full of gaps that could undermine the universality of the NMW. The NMW Bill required the Minister to stipulate regulations with respect of exemptions, leaving almost the entire exemption system to regulations. This departs from the BCEA which deals with a number of aspects of exemptions within the Act. There was no reason why the NWM Bill should not do the same. It was therefore recommended that: “employers’ organisation” be removed from clause 15(1), and that if it was deemed necessary to provide for mechanisms through which whole subsectors or groups of employers are to be excluded then this take place through the Commission. In line with the preceding regarding the work of the Commission, there was need for a clear interface between the delegation of powers to grant exemptions and the work of the Commission. Ideally, those granting exemptions should be within the Commission Secretariat and be accountable to the Commission as the granting of exemptions significantly impacts the successful implementation of the NMW.

Lastly, specific mention of the need to collect and make public data on exemptions (applied for and granted) was missing from clause 16. The opacity of this process had been noted on a number of occasions. It was therefore recommended that the Minister (under clause 16(1)) be instructed to provide regulations on “(c) the collation and public dissemination of relevant statistics relating to exemptions applied for and granted”. This would be in line with the Constitutional mandate of transparent governance.

Discussion
Mr M Bagraim (DA) said he presumed Dr Isaac agreed that job creation at this stage was crucial. Job creation was the most important effort that government had to undertake. He believed the NMW would not create jobs; it would actually lead to loss of millions of jobs. Isaacs has not had a moment’s thought for the unemployed. How about the employed who were going to lose their jobs even before the new NMW is implemented? Due to the NMW, there would be no incentive to create jobs such that industries would resort to mechanisation and computerisation. He emphasised that the NMW could only be supported as long as it would not lead to a shrinkage of jobs. Dr Isaacs’ proposals would exclude fringe benefits such as housing and medical cover from the NMW. However, this was going to discourage employers from offering such fringe benefits. He asked for Dr Isaacs’ opinion on some businesses arguing that the NMW was not sustainable such that they would have to close down. Was he aware that business strikes were ongoing such that businesses were not keen on investing in the South African markets? He believed the NMW would destroy the protection of casual employees and agreed this was not the time to undermine sectoral determinations. Existing labour laws were already not being fully enforced thus having a new set of laws would certainly compound the challenge. He agreed strongly with the need to increase capacity to enforce. He was not sure how a NMW would close the wage gap. The obtaining realities in the country must be taken into account.

The Chairperson asked about Dr Isaacs’ proposals on the mandate and composition of the proposed commission on the NMW. Some stakeholders believe it had to take the unemployed into account. What was Dr Isaacs’ view on this?

Mr D America (DA) said the NMW discussions should be contextualised and realities of the high unemployment in the country had to be taken into account. The 9.8 million people without jobs should be remembered and considered seriously. Legislation to protect all the vulnerable was necessary. He was not in agreement with the inclusion of independent contractors in the definition of ‘workers’.

Dr Isaacs noted the emphasis on the need to take into account the current context. However, stakeholders had to also look at the kind of society the country desires going forward. This labour legislation fundamentally addressed the kind of society desired. He agreed that sectoral determination is beneficial in some sectors and should be well-regulated. His understanding of the NMW panel was that it was grounded on an automated system, linked to the South African Revenue Service and other administrative data. He emphasised the need for the NMW to ensure that workers earn enough income to meet their basic expenses. He agreed that there was need to look at the changing nature of work. However, the push- the world over, was towards regulating non-standard work to ensure it is covered by the NMW. Mechanisation and computerisation were a reality but were a lot more complicated than being put out. On whether the NMW would close wage gaps, many studies projected a fall in poverty and inequality upon the introduction of the new NMW. Average wages and household incomes were also expected to increase.

Women on Farms Project (WFP) submission
Ms Colette Solomon, Director, Women on Farms Project, said while the rationale for a minimum wage was welcomed, there were problems with its conceptualisation, as outlined in the proposed NMW Bill. She gave an overview of the challenges faced by women on farms. Research commissioned by WFP in 2017 found that 43% of farmworkers are not paid the legal minimum wage; 72% of women seasonal workers do not have access to a toilet in the vineyards during the working day; 69% of women seasonal workers come into contact with pesticides an hour after the vineyards have been sprayed. These practises all contravene various labour laws. Farmworkers’ exploitation was exacerbated by the low rate of unionisation among farmworkers (estimated at 10%), and which is even lower among women seasonal farmworkers, probably around 4%. Also, women seasonal workers were increasingly contracted by unregistered and unregulated labour brokers. These workers do not sign or have labour contracts; are paid less than the minimum wage for farmworkers; and also face sexual harassment and abuse from labour brokers. Both the farmer and the labour broker shirk responsibility for complying with labour laws, each blaming each other; it was the workers who pay the price of such evasions. Furthermore, despite the Extension of Security of Tenure Act (ESTA), which aimed to protect the tenure rights of farmworkers, farmworker evictions continue apace in South Africa. Far from its original intention, ESTA had effectively become a regulatory framework for the legal, state-sanctioned forced removals of farmworkers and farm dwellers.      

WFP proposed that a truly universal NMW with guaranteed working hours and guaranteed monthly wage rate be enacted. Farm workers, especially women seasonal workers, the majority of whom are not unionised, must be widely consulted as they have first-hand experience of farmers’ ability to avoid paying the minimum wage. The setting of the wage must also be based on both research and consultations with women workers, especially taking account of the increasing seasonality of their labour. The Minister of Labour’s right to make sectoral determinations must be retained, and the special provisions, stipulations and protection of the Sectoral Determination for Farm Workers (SDFW) must be retained and strengthened. This will ensure that farmworkers and farm dwellers have housing rights and are protected from excessive and unreasonable rents by farmers.

Moreover, women worker must have housing contracts in their own name. The enforcement of workers’ rights must remain the responsibility of the Department of Labour. However, the Labour Inspectorate needs a drastic increase in budget, personnel, vehicles, etc. It was further recommended that a cohort of labour inspectors specialise in and only focus on farm inspections. Furthermore, it must be mandatory that inspectors consult with and account to farmworkers when inspections are carried out. They must ensure that they, not farmers, select the workers they speak to, and that such discussions take place away from the farmer’s home or office. It is critical that women seasonal farmers are explicitly included because working conditions are usually worse than those of permanent male workers. More punitive measures, including heavy fines, the closing down of farms, and even imprisonment, must be considered in order to provide stronger disincentives for farmers. If exemptions are allowed under exceptional circumstances, the criteria and eligibility, as well as exemptions applied for and granted, must be unambiguous, transparent and publicly shared.

In conclusion, labour laws should be strengthened and amended in order to better protect and advance the rights of farmworkers and not lock them into the semi-feudal and racist labour practices still widespread on commercial farms in South Africa. It is particularly women seasonal workers, whose labour conditions are increasingly insecure and precarious, who need legislation which is cognisant of their realities and will afford them better rights and protection. If a national minimum wage is to contribute to meaningfully reducing poverty and inequality, especially as they affect vulnerable workers, like women seasonal workers, it must expand and advance their rights, entitlement and protection, enabling them to live lives of dignity, free from exploitation.  

Discussion
Mr Bagraim appreciated the presentation and expressed his shock on some of the recounted statistics. The challenges had to be addressed by the Department of Labour (DoL). It was shocking that less than half of the farmers were not being paid the current minimum wage. This underscored the need for robust implementation of current legislations without making regulations more onerous. Employers needed to be encouraged to comply. He pointed out that housing and food were paramount and there was need for stricter enforcements to ensure farmworkers are well-catered for. He commended the WFP for bringing the plight of farmworkers to everyone’s attention.

A WFP representative said that if the sectoral determination falls away, it will worsen the suffering for them as farm workers. They will lose their housing and will not be making any money if the farmer was entitled to deduct 10%. The Department of Labour will not be able to help, because the farmer has more privileges. She was a seasonal farm worker and saw those that sat on the side of the road every day without work or food. If this law gets passed, a farmer will have every right to demand that a set amount of work was done before wages are paid; and if the work was not done, no wages. If there was a set minimum of four hours work, farm workers will be “worked to death” in those four hours and there will be no need for the farmer to pay the national minimum wage if he can get maximum work in four hours a day. This will mean more out of work farm workers. Farm workers are the ones securing food security and government needed to look after those workers. Government should also look at the conditions farm workers live and work under – in some instances without water and proper sanitation and without toilets. She had to send her grandchild to go steal water at neighbouring farms.

Another WFP representative thanked the Committee on behalf of farm workers for having this opportunity. She wanted to talk about evictions and the overflowing informal settlements. When she was growing up, everybody stayed on the farms and only a few farm workers lived in the town. Nowadays farmers build restaurants and beautiful guest houses so that the inspectors that come to work with the grapes have accommodation and that was why farm workers were moved off the farms. She pleaded with the Committee to reach out to farm workers and to look after their interests. She agreed with the previous speaker and said those workers who speak out get fired and there was no recourse with structures such as the CCMA or the Department.
 
Ms Solomon pointed out that non-compliance with existing legislation had very little to do with inability to afford paying workers a NMW. It had everything to do with historical practises and the kneejerk backlash against improving farmworkers’ welfare, hence stricter enforcement was key. She cited the case of the wine industry which had increased its export volumes fourfold and doubled its export value between 2008 and 2015, but in the same token is failing to comply with labour legislations and regulations.

Public Service Co-ordinating Bargaining Council (PSCBC) submission
Mr Frikkie De Bruin, General Secretary, Public Service Co-ordinating Bargaining Council submitted on the Labour Relations Bill.

Amendment of section 127
According to the memorandum on the objects of the proposed amendments to the Labour Relations Act (the Act), the amendments to section 127 provides that a council or accredited agency may apply for the accreditation of its dispute resolution panel. This amendment must also be read with the proposed amendment to section 128 that will now allow for a council accredited to perform dispute resolution functions to only appoint a person to resolve a dispute if that person is accredited by the governing body of the commission. PSCBC believed that such amendments may be contrary to the provisions of the power and functions of a bargaining council as listed in section 28 of the Act.  A bargaining council must in relation to its registered scope amongst other: (c) prevent and resolve labour disputes; (d) perform the dispute resolution functions referred to in section 51 of the Act. By interpretation bargaining councils do not have to seek accreditation from the governing body as contemplated in section 127 for disputes of those parties as defined in section 51 of the Act. It was accepted that accreditation is only required for those disputes where one of the parties may not be a party to the bargaining council, commonly referred to as non-party disputes.

In effecting the powers and functions of the council as per section 28, section 30 requires of a council to have a constitution that must at least, amongst other provide for (i) the procedure to be followed if a dispute arises between the parties to the bargaining council. Bargaining councils therefore in terms of their constitutions, read with the provisions of the Act, allow for the appointment of a panel of conciliators and arbitrators to resolve disputes that may arise between parties to the council. The constitution provides for its own criteria, skills level and representivity of such a panel.  It also provides for a code of conduct to which these panellists must adhere to. The constitution of a bargaining council, the dispute resolution procedure, the rules governing dispute process and the panel of dispute resolvers are agreed to by parties in the council through a collective agreement. The application of section 23 of the Act, on the legal effect of collective agreements must also be read in relation to the proposed amendments. The discretion and the right to appoint a panel of conciliators and arbitrators for council disputes and indirectly accrediting those persons to perform such functions, is solely that of the council. It cannot be by decision of the governing body. The amendments proposed and section 127 as currently worded does not specifically address the issue of accreditation for the type of disputes, i.e. party to party disputes or non-party disputes. This lack of clarification clouds the interpretation of the proposed amendments. The CCMA was also well aware that this specific issue around the accreditation of panellist is currently being discussed with them. It was disappointing that they did not disclose the intended amendments to the industry and consulted broadly on them.

These amendments have critical implications for bargaining councils that would want to comply with the concept of accreditation for purposes of good governance, not forgoing their right to perform dispute resolution functions to parties of council as provided for in the Act. It also has a direct implication on the State in relation to span and control of dispute resolution functions. The alternative for councils is not to apply for accreditation to perform non-party disputes. This will result in those disputes being referred to the CCMA placing an undue burden on the already overloaded case load of the CCMA. It will also have an impact on the resources of the State as to manage dispute resolution in two different forums. To prevent ambiguity in the interpretation of the Act it was suggested that the proposed amendment of subsection 1 be worded as follows; “Any council or private agency may apply to the governing body in the prescribed from for accreditation [and] or for accreditation of its dispute resolution panel to perform any of the following functions-“. Furthermore, PSCBC suggested that section 128, subsection 3 be worded as follows; “(3)(a)(i) An accredited council may confer on any person who is accredited by the governing body and appointed by the council to resolve a non-party dispute or to resolve a dispute not provided for in the constitution of that council, the powers of a commissioner in terms of section 142, read with the changes required by the context.”

Amendment of section 135
It was not clear if the amendment intends to prevent prolonged postponement of matters at conciliation or does it provide for a mechanism where the director believes, where reasonable prospect exist, a further postponement of the conciliation, for not more than 5 days, will result in the matter being resolved, he/she may then arbitrarily decide to postpone the matter? It is also not understood why a matter will be postponed by the director if a party refuses to agree to such extension, being unreasonable or not, as the party will still return after 5 days with no settlement. Subsection 2(A), is also not clear what happens if the parties diaries does not allow them to convene within or on the 5th day? It also does not consider the already published case roll of the CCMA or a bargaining council for the 5th day or any other day before then. As the Act currently reads in section 135 (2) parties have the right to agree to extend the 30 day period. That should remain the right, as they will know best and unreasonable interference by administrative action should be refuted. PSCBC suggested that the proposed insertion of section 2(A) be deleted in its entirety.

Insertion of sections 150A, 150B, 150C and 150D
The principle of introducing advisory arbitration is one that is supported. Parties need to have an alternative mechanism to “unlock” deadlocks. However this could not be done at the cost of the ideologies of the country’s labour legislation.

Insertion of sections 150A
PSCBC recommended that the clause be amended to reflect the following; Section 150A (1) (a) to read as follows; “…..[on the directors own accord or] on application of one of the parties to the dispute, in the case of a labour party requesting the facilitation, such request must have the agreement of the majority of labour parties to the dispute”.

Insertion of sections 150A
Subsection (2) read as follows; “the panel contemplated in subsection (1) must facilitate a resolution of the dispute at any time after a commissioner has issued a certificate of unresolved dispute under section 135(5)(a) or a notice of the commencement of the strike or lockout contemplated in section 64(1)(b),(c) and (d), whichever is the earlier.” By a layman’s reading this implies that before employees have gone out on strike the panel “must” facilitate the resolution of the dispute as long as one of the activators in subsection 1 is present and whichever occurs at the earliest date. This does also not read well with sub clause 4 (a) that requires the strike or lockout to be no longer functional.

Insertion of sections 150 (B), (C) and (D)
It was not clear how the insertion of sections 150A-D will be applicable to the State. The Act in section 150D refers to the binding effect of an advisory award if one of the parties is an employer’s organisation? The state is not an employers’ organisation and/or the State should be specifically referred to or excluded.

There should be a broader consideration of the implication of the process of an advisory award, read with the provisions of the Labour Relations Act specifically referring disputes within essential services (within the State) to Parliament for endorsement. Consideration should also be given to the powers and functions of the Minister for Public Service and Administration in determining conditions of service for the public service and how an advisory award published may impact on the same.

Discussion
Mr Bagraim pointed out concerns raised by various stakeholders in relation to over-legislation. The majority of stakeholders and employees felt existing laws were not being adequately enforced. This had to be dealt with.

Mr De Bruin agreed that the challenges with the labour market were more about the lack of implementation and enforcement rather than the lack of adequate legislation. There was need for a role-players summit on enforcement going forward.

National Union for Metalworkers of South Africa (NUMSA) submission
Ms Phakamile Hlubi-Majola, Acting Spokesperson, NUMSA, submitted that for more than two decades the workers share of the National Income has been going down and the legacy of Apartheid continued. All hard won gains secured since the dark days of apartheid have been under attack. NUMSA wanted it to be on record that for the past two decades the structure of the South African economy, under the ANC government had not changed. In fact, the conditions of the working class and their families have worsened back to apartheid fault lines, and NUMSA viewed the current amendments, as nothing less than a right wing political onslaught which could be compared to Margaret Thatcher’s attack on the working class in Britain.

On balloting before a strike, NUMSA rejected that the ANC government led by the Department of Labour (DoL) should tamper with the constitutional right to strike. The introduction of balloting before a strike was nothing else but an imposition on the limitation on the right to strike. NUMSA called on the ANC government to stop this vicious attack against workers. This was a product of bitter battles against a racist Nationalist Party regime, and many workers died to secure such a victory. NUMSA wanted it to be on record that it viewed this as a declaration of war. It was left with no choice but to resist and to fight back, and will leave no stone unturned in defending and protecting the constitutional right to strike. The government must abandon all its efforts to put limitations on the right to strike, including the unconstitutional requirement to take a ballot before workers could embark on a strike.

NUMSA rejected the Accord on Collective Bargaining and Industrial Action Code of Good Practice on the grounds that it placed the blame for violence during strikes on workers. It was based on the racist assumption that African workers are violent, but it did not acknowledge the brutality of the capitalist system on the working class and the role it plays in brutalising the working class and the poor. In essence the Code blames workers who are victims of a violent capitalist system, the same way some sectors of society blame women for being victims of rape. NUMSA was extremely irritated and angered that the ANC government had the guts to take away the constitutional right to strike, which is the last weapon that workers can use to defend themselves against conservative and brutal employers. The right to strike has been used to improve the benefits and conditions of workers. It is a tool to uproot the apartheid colonial wage, and eradicate the super-exploitation of workers which continues unabated in the South African economy. The very same ANC simultaneously with attacking the constitutional right to strike, is imposing and setting a terrible precedent in the interests of untransformed, racist employers by imposing a fake so-called NMW which is an insult to the majority of workers who are super-exploited and oppressed across all sectors of the economy. Capitalism in South Africa grew and thrived off the back of the super-exploitation of Black and African labour. There was conscious decision that African labour can never be part of owning the economy. Their role is to build the economy they continue to be paid starvation wages even today. They will not be paid a living wage so that their dignity can be restored.

NUMSA refused to be hoodwinked by the Minister of Labour who was using sectoral determination to address the plight of vulnerable workers by defining the improvements to this group of workers as a national minimum wage. A wage of R11 per hour for Expanded Public Works Programme (EPWP) workers, R18 per hour for farm workers, R15 per hour for domestic workers and then R20 per hour for the rest of the economy was not a NMW. Rather than offer farm workers the incredibly insulting R18/hour “Minimum Wage”, government must put together measures which must restore the dignity of farm workers first and advance a genuine National Minimum Wage for this sector. Such measures must include the following: farm workers must own land; farm workers’ right to form, join and organise into trade unions must be fully protected, and special measures must be undertaken by the government to monitor this right. Any National Minimum Wage for farm workers must take into account the full cost of production of the life of farm workers and their families. Such a determination must take into account variables such as the cost of food, water, clothes, housing, education, leisure, health, and so on. The aim must be to restore the humanity of farm workers.

The ANC government was not just attacking workers by introducing the national minimum wage, but it has decided to take side with the vicious, ruthless bosses who have been attacking all the hard won gains of workers. Such a move sets a good precedent in the interests of the bosses who have been demanding a downward variation of conditions. This time around, they have on their side a democratically elected government speaking unequivocally, stating that black and African workers deserve to be paid R20 per hour and less. Last year during the Engineering Wage talks the impact of this was made clear. Employers tried to impose the NMW of R20 per hour as a minimum rate in the sector, after workers have successfully fought for a rate of R43 per hour. Furthermore, there was nothing in the law to prevent employers from embarking on mass retrenchments, so they can begin hiring staff at a lower rate.

If the ANC government was serious about introduction a national minimum wage, they would have gone sector by sector, company by company, mine by mine, factory by factory, and demanded full disclosure of annual financial profits and the actual disclosure of salaries and bonuses of CEOs versus the wages of ordinary workers. It is only in the theatre of those results that a fair national minimum wage can be determined in South Africa. In light of the ANC government refusing to take such a step workers and revolutionary unions who are determined to end economic exploitation have no choice but to pursue class struggle for a real national minimum wage. In the immediate, NUMSA is demanding that the ANC government should embark on calling on the above financial disclosure in order to determine a living wage. What we can tolerate in the meantime, which does not necessarily qualify as living wage, is R12 500.00. If they expect us to go company by company to ballot, then we expect them to go company by company to do proper research on how much profit each company is making.

NUMSA noted the proposed amendments to Section 32. It facilitates the extension of collective agreements properly reached by the majority parties in a bargaining council. What is unfortunate is that a lot of anxiety and misunderstandings were created by communications received from the Department of Labour which incorrectly created the impression that Section 32(1) of the Act is also amended to create a situation where minority parties can request the extension of a collective agreement reached between minorities. That is clearly not the case in that Section 32(1) of the Act remains intact and likewise Section 32(3)(a) of the Act remains intact. As such a prerequisite for a request for extension remains a collective agreement properly concluded by majority parties (on both employer and employee sides) in the bargaining council. It was entirely incorrect to contend as some does that the amendments envisage that only a majority on one side is required to conclude a bargaining council agreement and then to seek an extension. Based upon the aforesaid understanding NUMSA accepts the proposed amendments to Section 32. In addition it is once more reiterated that should NUMSA elect to pursue a legal challenge to any or all of the proposed amendments such legal challenge shall not necessarily be confined to what has been dealt with in NUMSA’s submissions nor should any of the submissions made be construed as limiting NUMSA’s right to expand upon or amend any of its submissions.

On what was to be done, NUMSA highlighted the following: the government must ban all labour brokers and all other abusive exploitative practices; must guarantee a 45 hour week; abandon and guarantee that there shall be no limitations to the right to strike; ban employers from being able to use scab labour during strikes; and must guarantee benefits like paid annual leave; sick leave, maternity and paternity leave.

In conclusion, history showed that the working class shall always be victims of the ruling class unless they learn to see the class interests behind all phrases, proclamations and political processes. This included these public hearings on the Labour Bills. In its demands, NUMSA sought to unearth the true class intentions and origins of the public hearings. It was time to unite the working class behind the demands for a living wage and the demands of the Freedom Charter, for they are inseparable.

Discussion
Mr America noted that some of the issues raised in the submission were not under the Committee’s purview. However, concerns about balloting were valid and NUMSA was not the only union objecting to it. He indicated that the Committee would take submissions from all stakeholders into account during its deliberations.

Ms Hlubi-Majola commented on the Committee and Department’s consultation processes. Consultation on the NMW Bill had been far from adequate such that there was a lot of confusion among workers. Workers’ opinions had not been canvassed. She reiterated that NUMSA rejects all Section 32 proposals. Most proposals had not been designed to improve workers’ welfare but were meant to please industry and in the process undermine the whole object of the minimum wage.  

The Acting Chairperson said concerns had been continually raised that ordinary community members were not properly consulted. However, the Committee held workshops since August 2014. Public hearings had been held across the length and breadth of the country since then. NEDLAC and the Department also spearheaded their separate consultative processes and this was the second round of public hearings after receiving feedback from NEDLAC. The Committee would convene for further hearings the following week. 

The meeting was adjourned.