State, Employment & ILO guidelines

The State and the Employment Relationship

• In a triangular relationship, employers, employees, and the State form the three corners.
• The State, as the government, does not directly engage in the relationship.
• A secondary relationship exists between the State and the employers and employees.
• The State influences the relationships through labor laws and practices.
• If the State is the employer, as in the public sector, it has a more direct involvement.

The International Labour Organisation (ILO)

• When creating labor laws, governments need to consider the guidlines of the ILO
• The International Labour Organisation formulates guidelines for labour legislation.
• South Africa is a member of the ILO.
• The body consists of representatives from employers, employees, and the government in most industrialized countries.
• Guidelines are conventions and declarations that address several employment related issues.
• These issues are employees rights, collective bargaining, discrimination, working hours and dismissals
• The ILO sets the guiding pirinciples in the employment relationship
• the guiding Principles must be ratified by the conventions of countries
• Founding principles are in the Declaration of Philadelphia.

Declaration of Philadelphia

• Labour is not a commodity.
• Freedom of expression and association are vital for consistent advancement.
• Poverty anywhere endangers global prosperity.
• The war against poverty requires continuous free discussion and democratic decision making.

The Constitution of the RSA (Act 108 of 1996)

• The Supreme law of the country is the Constitution.
• No law can violate the principles of the Constitution.
• The Bill of Rights ensures all citizens have equality before the law and equal protection.
• No discrimination is allowed based on race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
• The Bill of Rights ensures all citizens have human dignity and respect
• The Bill of Rights ensures all citizens have health and safety
• Slavery, servitude and forced labour is prohibited
• Citizens have a right to privacy and communications which cant be searched
• Citizens can freely express opinions that dont incite violence, hatred or propaganda
• Citizens can peacefully assemble, demonstrate, picket and present

The Bill of Rights: Section 23

• Ensures specific labour relations rights.
• It provides the right to fair labour practices.
• It provides the right to form trade unions, participate, and strike.
• It provides the right to form and join employer associations.
• It provides the right of trade unions and employer associations to collectively bargain.

The National Economic Development and Labour Council (NEDLAC)

• Labour laws in South Africa are finalized only after NEDLAC consultation.
• Its members include representatives from employer associations, trade unions, government, and civil society.
• Consensus on economic policy and labour laws is ensured by NEDLAC.

The Government’s Labour Policy

• Fair remuneration and conditions of service can be found in The BCEA plus sections of the LRA
• Employees right to organise and belong to a trade union is in the LRA
• Employees right to negotiate and collectively bargain is in the LRA
• Job security and protection of unfair labour practices can be found in the LRA and ESA
• Access to training and retraining can be found in the SDA and SDLA
• Protection of health and safety - OHSA
• Security against unemployment - UIF and UICA
• Security in the event of injury on duty - COIDA
• Prohibition on discrimination and advancement of previously disadvantaged -EAA

Basic Conditions of Employment Act (75) of 1997 – BCEA

• Ensures employees receive minimum employment conditions.
• Protects vulnerable workers against exploitation.

Labour Relations Act (66) of 1995 - LRA

• The Act promotes a peaceful and orderly employment relationship.
• It bestows the rights and obligations to employers and employees
• Provides self regulation for bargaining councils

Labour Relations Amendment Act (8) of 2018

• Took effect on January 1, 2019.
• Aims to supply the Minister with criteria to extend collective agreements.
• Aims to extend and renew funding agreements.
• Aims to provide picketing regulations via agreement/commission determination.
• Aims to provide classification of ratified/determined minimum service.
• Extends ballot meaning for voting recorded in secret.
• Provides for registrar and deputy registrar independence.
• Provides advisory arbitration panel with the power to award
• Provides for transitional provisions and connected matters.

Labour Laws Amendment Act (10) of 2018

• Took effect January 1, 2019.
• The operations started on January 1, 2019 with The National Minimum Wage Act.
• Deals with collective bargaining, industrial action and picketing.
• Deals with parental leave, effective January 1, 2020.

The Occupational Health and Safety Act (85 of 1993) - OHSA

• Ensures workplaces are safe and healthy.
• Covers all employees excluding mine workers, who have their own legislation.
• It allows policing via Health and Safety representative appointments.

The Unemployment Insurance Act (63 of 2001) -UIA

• The Unemployment Insurance Contributions Act (4 of 2003) UICA
• These Acts provide insurance against possible unemployment.
• Covers all employees except people who work less than 24 hours per month, and those with a pension.
• UICA- handles administration for unemployment benefiots
• UIA or UIF - handles the nature of benefits payable to unemployed persons
• UICA - outlines the obligations for employers

Compensation for Occupational Injuries and Diseases Act (Act 85 of 1993) - COIDA

• If an employee is totally disabled due to a work situation they are compensated
• Employees are compensated if they contracted an occupational disease as a result of workplace incident

The Employment Equity Act (Act 55 of 1998) - EEA

• It prevents discrimination in the workplace.
• It addresses demographic imbalances caused by previous practices.
• One aspect prohibits discrimination.
• The other aspect promotes affirmative actions and equity.

The Employment Equity Amendment Bill 2022

• No longer applies to employers who has fewer than 50 employees, regardless of their annual turnover.
• No longer requires employers to submit equity plans and reports.
• Empowers Minister of Employment and Labour to set occupational targets.
• Equity plans expired in September 2022.
• Equity plans align with five-year targets.
• Employers are required to consult with trade unions when setting employment equity targets
• 'Disability' includes intellectual and sensory impairments.
• Labour Inspectors are authorised for compliance.
• Applications for government contracts require Employment Equity Compliance Certificate from the Ministry of Employment and Labour.

The Skills Development Act (Act 97 of 1998) and the Skills Development Levies Act (Act 9 of 1999)

• Marked as SDA and SDLA.
• Attempts to co-ordinate workplace training with a structured manor.
• Employers should make the workplace a learning Environment.
• Employees should be given opportunity to acquire new skills

Employment Service Act (4) Of 2014 - ESA

• Promotes the employment for young workers in employment schemes
• Assists employment in distressed companies.
• Aligns employment of foreign nationals to fair labor practices.

Draft National Labour Migration Policy and Employment Services Amendment Bill, 2021

• Regulates foreign employment.
• Allow Minister scope to introduce occupational category quotes across sectors.
• Extends Acts scope.
• Covers private employment agencies.
• Consistent South African employment with Immigration / Refugees Acts
• Expands Act's scope for workers and employees,
• Expands the Minister's powers and Employment Services Board functions.
• Regulates labour migration matters
• Ensures governance of Supported Employment Enterprises.
• Better enforces laws that regulate employment for foreign nationals.

National Minimum Wage Act (9) of 2018 - NMWA

• Provides a national minimum wage.
• Provides the composition and functions of the National Minimum Wage Commission.
• For the review and annual adjustment of the national wage.