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LABOUR PORTFOLIO COMMITTEE
15 May 2007
INTERNATIONAL LABOUR CONFERENCE PROGRAMME
Chairperson: Ms O Kasienyane (ANC)
Documents handed out:
International Labour Conference 2007 Briefing Presentation
Audio Recording of the Meeting
The Department of Labour briefed the committee on the programme of the upcoming International Labour Conference (ILC),T which would be focusing on the impact of casualisation on the fishing and maritime sector, working conditions in the fishing sector, and the need for effective regulation as the Basic Conditions of Employment Act did not apply to the fishing and maritime sector. This sector's employment conditions were covered by Chapter 4 of the Merchant Shipping Act, which required to be updated and modified to bring on par with the current labour standards. It was pointed out that America was intending to require identity documents so that it could check up on fishers travelling on any vessel that was likely to head for an American port.
The discussion focused on which department and legislation had mandate over the fishing sector. Further clarity was sought on the identity documents, the exclusive economic zones, the legislation covering the sector, the distinction between the maritime and fishing industry, and the definition of employees. Further comments were made on casualisation and labour broking and the discussions that the South African Maritime Safety Act was involved in, and a Member believed the issue was rather whether workers were being exploited and if this was being properly addressed. He asked what interventions were made by the Department of Labour and the Department of Transport. It was noted that some issues had been highlighted in the public hearings conducted by the Committee on Environmental Affairs and Tourism, who would be forwarding their report for further attention on the labour issues raised.
International Labour Conference Briefing by Department of Labour (DOL)
Mr Virgil Seafield, Senior Executive Manager, DOL, gave a presentation to the Committee on the agenda for the forthcoming International Labour Conference (ILC) to be held in June. He and a delegation from the Department would attend the conference. His presentation focused on the fishing sector as the main agenda item.
The employment conditions were of high priority in the agenda. The industry was becoming increasingly dependent on casual labour, with use of labour brokers and employment agencies as the main protagonists, and the lack of consideration of the employees' welfare which this form of working arrangement entailed. A central issue was the lack of proper legislation covering the employment conditions in the sector. The Basic Conditions of Employment Act (BCEA) did not apply to vessels covered by the Merchant Shipping Act.
The South African Maritime Safety Authority (SAMSA), which was a statutory body, was responsible for the enforcement of employment standards stipulated in the Merchant Shipping Act. Furthermore a bargaining council had been established for fishers in South Africa, following which an agreement setting conditions of employment and wages for fishers had been extended to non-parties by the Minister in May 2003.
The International Labour Conference would also focus on the issue of identity documents. This related to the fact that certain countries, particularly the United States of America, intended to request identity documents from all sea vessels that appeared to be heading for their ports. This could be problematic as it might result in fishers who visited foreign ports not being allowed to go ashore.
Mr M Mzondeki (ANC) asked for clarification about the identity documents that were going to be scrutinised by the United States of America. He asked when they would be likely to demand to scrutinise the documents, and if this would be at a time when the people had entered the exclusive areas mentioned.
Mr Seafield explained that the exclusive economic zones related to areas in which, in terms of international law, it was permissible to effectively farm and breed fish, oysters and the like. The intention of USA was to be able to intercept any vessel on the high seas that seemed to be heading for their ports, and request identification documents. This would be problematic for the maritime global industry, if this would lead to exclusion of certain vessels solely based on one country’s suspicion of a possible threat on its safety.
Mr Mzondeki asked for clarity which legislation covered the fishing and maritime sector.
Mr Seafield responded that Chapter 4 of the Merchant Shipping Act, which regulated conditions of employment on all kinds of sea vessels, was outdated and there was a need to modify this legislation to bring it line with the current labour regime of South Africa. Discussions were already taking place to modernise the labour and condition provisions of this Chapter. There was no debate over which government department had a mandate of monitoring the employment conditions. The main issue was over the legislation itself.
Mr Seafield added that there was a clear distinction between the maritime and the fishing industry. Maritime related to the cargo and passenger carriers, whilst fishing would cover vessels such as the deep sea fishing vessels. The International Labour Organisation (ILO) had identified the work in the fishing sector as particularly dangerous as compared to the work conditions on maritime vessels.
Mr M Mogale (ANC) asked whether the definition of employee was going to affect private employment agencies.
Mr Seafield replied that the legislation’s definition of employee was satisfactory and there was no need to change it with regard to private employment agencies. The joint and several liability provision seemed to adequately address the question over who was the employer and responsible for employees. However, if there was any need for change in the legislation it would probably relate to the compliance issues, and making it easier for employers to comply. Firms would be able to address non-compliance or inability to comply in a report.
Mr Seafield further commented on the issue of casualisation and labour broking. He commented that this was an issue that needed to be addressed and consulted on. SMSA was currently involved in discussions over the regulation of the recruitment and placement agencies in the fishing and maritime industry. The mechanisms for regulation of the recruitment and placement agencies in the maritime industry had already been drafted by the Department of Transport. Those regulation mechanisms could easily be adapted to the fishing industry
Mr Thembinkosi Mkalipi, Senior Executive Manager, Labour Relations, DOL, added that the casualisation had been prioritised as a key issue by the DOL. The Labour Relations Act (LRA) and the BCEA were tailored to address this trend towards casualisation and the question over who was the employer. The legislation included a provision on joint and several liability, which stated that the presumption was that the labour broker and the principal employer were jointly responsible for the employee. Furthermore National Economic Development and Labour Council (NEDLAC) had agreed on the regulation of the issue of who was an employee, following the recommendations by the ILO. These regulations would assist the Commission for Conciliation Mediation and Arbitration (CCMA) Commissioners in deciding who was an employee and employer. The Minister of Labour also instituted research, three years ago, on atypical employment and these results were presented to the Cabinet and the President. The research report was then sent to the NEDLAC, to discuss and recommend how to further deal with this trend of atypical employment. This assessment of this report might necessitate the amendment of legislation or the promulgation of additional regulations to deal with the issues.
Mr B Mkongi (ANC) commented that the issue of casualisation went beyond just determining the relationship between the labour broker, the client firm and the employee. The issue was rather concerned with the exploitation of workers and whether the legislation directly addressed this. There were currently many situations where the worker was not registered and did not receive any benefits. There was enough clarity on the identity of the employer and who was responsible for the employee’s welfare. The issue was now about how to prevent the exploitation of workers. Furthermore, the discussion should go beyond ascertaining which legislation covered the fishing sector employees, to look at possible interventions to address the problems in the sector. It was also fruitless to debate over whether the Department of Labour or the Department of Transport had a mandate. It was clear that it was the mandate of the DOL to deal with the atypical employment trend and the exploitation of workers. An integrated approach by the two Departments might also be necessary when there was lack of clarity. He asked what specific interventions were being made by the Department of Labour.
Mr Seafield responded that the distinction as to which department should intervene in the maritime sector involved the Department of Transport. However, the separation of the responsibilities of departments was a complicated issue, and could need he intervention of legislation. The BCEA was clear as to its ambit and clearly stated that it did not apply to situations where the Merchant and Shipping Act applied. Therefore that Act must be used as the mechanism for intervention in particular sectors. The Maritime Safety Authority was also clear on its mandate and enforcement. It had established safety and construction regulations for small and large vessels. The confusion could arise when a vessel was docked or when it was on the high seas. The distinction over where the responsibility for enforcement and intervention lay seemed to be clear.
DOL had had the same discussions with the Department of Transport and SMSA, and one of these was chaired by Captain Nigel Campbell of SMSA, who was an expert in the fishing industry. It emerged that the Department of Labour was clearly not the right department to deal with the fishing and maritime industry. Nevertheless, the spirit of aiming for an integrated approach towards the regulation of the industry was certainly present in the legislation and was exemplified by the interactions that took place between the departments.
The Department of Labour certainly addressed the issue of worker exploitation as it related to the labour brokers and employment agencies. The recourse to this issue did not simply lie in the legislation but in the manner in which that legislation was applied. This had been seen as the right approach in the round table discussions with the Minister on casualisation, and the approach would continue.
The Chairperson thanked the delegation for this crucial information. He hoped the important fishing sector would be given support by the ILO. The importance of these issues had also been highlighted in the public hearings conducted by the Committee on Environmental Affairs and Tourism, who would be forwarding their report for further attention on the labour issues raised.
The meeting was adjourned.