Deputy Speaker, let me say that today I am pleased to introduce a number of important amendments to the Labour Relations Act, Act No 66 of 1995, in the form of the Labour Relations Amendment Bill. Let me also remind this House that in the ANC's 2009 election manifesto, it says that, and I quote:
In order to avoid exploitation of workers and ensure decent work for all workers, as well as to protect the employment relationship, introduce laws to regulate contract work, subcontracting and outsourcing, address the problem of labour brokering, and prohibit certain abusive practices, provisions will be introduced to facilitate unionisation of workers and conclusion of sectoral collective agreements to cover vulnerable workers in these different legal relationships and ensure the right to permanent employment for affected workers.
I need to remind this House that the genesis of this is in the clauses of the Freedom Charter and in line with the Constitution that seeks to restore the dignity of all our citizens.
In terms of the Bill, it seeks not only to strengthen the legal basis for ensuring decent work in the South African labour market, but also regulates contract work, subcontracting and outsourcing, addresses problems of labour broking and prohibits certain abusive practices associated with it. New wording and new clauses are introduced in section 198 of the Labour Relations Act. This will have the effect of introducing additional protection for vulnerable workers, employees who earn on or below the threshold prescribed in section 63 of the Basic Conditions of Employment Act, limit general temporal employment to a period of three months, allow for the use of fixed-term contracts for up to three months or for a longer period where there are justifiable grounds and making provision for the regulation of part-time work.
There has been a lot of focus on the reduction of the six-month period of temporal employment to this particular amendment. Let me say that the time period was already contested in Nedlac, with business arguing for a longer period and Labour wanting a shorter period. We will have to monitor the responses in the labour market to temporary work being limited to three months.
I should remind members of this House that violence and damage to property during strikes are criminal matters. This is one of the reasons that the clause was rejected. The courts have already ruled on such matters. In 2010, Judge Hlophe found that the constitutional right to strike must be balanced by the right of members of the public to human dignity, to be free from all forms of violence and not to be arbitrarily deprived of property.
As recent events in the platinum mining sector have shown, we have to go beyond the law to find solutions to some of the difficult labour relations challenges that face us today. The current amendments represent a substantial improvement on the 2010 amendments. They allow for the continuity utilisation of temporal employment, but they also regulate temporal employment in ways that will prohibit abuses.
Let me thank the Nedlac social partners for their commitment to social dialogue and their extensive engagement with the proposed amendments. Let me also thank the members of the portfolio committee for their contribution. I should also thank the many interested parties and organisations that submitted comments on the Bills to the department.
Let me further highlight what these Bills respond to. When it comes to the abuses in the labour market, we have highlighted the issue that labour brokers roll over contracts of employees, thereby making workers permanent temporal employees. Workers employed by labour brokers earn less than their counterparts employed by clients, whilst doing the same job.
Workers employed by labour brokers are not able to take up their dismissal cases with the Commission for Conciliation, Mediation and Arbitration, CCMA, and the Labour Court, and are not able to enforce decisions, because it is unclear who their employer is. Workers employed by the labour brokers often do not have access to social benefits, for example, retirement funds and also the Unemployment Insurance Fund.
The reason why we came up with these amendments was to deal with these abusive practices. Therefore, I will appeal to this House to support the proposed amendments. I thank you. [Applause.]
Madam Speaker, hon Ministers, the staff from government departments and esteemed guests, the South African industrial relations landscape has evolved over many years and is still evolving to this day.
In 1907, white mine workers in the then Transvaal downed tools as a result of their frustration that the employers were not taking their grievances seriously. In 1913, again, white mine workers went out on strike at Kleinfontein Mine in Benoni. In 1922, thousands of white mine workers embarked on a massive strike on the Rand, popularly known as the Rand Rebellion.
In all these instances the state either intervened by setting up a commission to investigate the causes of the unrest or used brutal force to suppress the strike. What came out of all these events is the inherent tension in the industrial relations world of work, which more often than not ends in a protest of one kind or another.
Labour relations, especially in a country with such a difficult and painful past, will always be a challenge as one tries to find the delicate balance between the ideal and the harsh realities that are confronting the working people. The growing gap between the rich and the working poor compounds the situation. The increasing level of sophistication of an average worker and the glaring contradictions in society up the stakes. Whilst many analysts and commentators make us believe that there is a silver bullet for the industrial relations challenges in this country, many of their proposed solutions remain very utopian. How do you justify the gap between the CEO's salary and perks of the mining companies and those of the workers at the lower end of the scale? The Minister mentioned how much the Lonmin CEO earns, saying it is about R850 000 a month, while the rock driller gets between R4 000 and R5 000 a month. How do you explain the reason why top management on the mines live in proper and often company-subsidised houses as opposed to the general workers, who live in compounds, in "emkhukhwini", or shacks?
Yet, when workers make huge percentage wage demands, there is an outcry. Percentages are misleading and, if viewed narrowly, they could blow the situation out of proportion. As far as I know, 100% of R1 is R1. Whilst 100% sounds huge, what it represents in real terms is negligible, purely because of the low baseline. If the baseline is low, a large percentage may, in theory, sound out of sync with the conventional norm.
I have asked some journalists who were behind the story that the wage demands are insane to tell me if they know the baseline wages of the workers that they wrote about. None of them knew with absolute certainty. Most workers are trapped by the low baseline. Therefore, high percentage wage demands may not always translate into an insane amount in real terms, or "insanity" as some have dared to suggest.
Some are quick to accuse poor service delivery, lack of trade union leadership and labour laws as the reasons for the challenges facing industrial relations in South Africa, when inequality and the skewed wealth distribution between the owners of capital and the creators of wealth could be the real culprits.
It is a fact that our labour market is characterised by inequalities and the huge numbers of the working poor. It is within this context that when dealing with labour market challenges, we have to understand the history and the political climate within which we operate. We always acknowledge that South Africa operates within a global village and that such an intricacy sometimes forces us to abandon our values and that which is morally binding to our cause.
These amendments are a reflection of the fact that we operate within an environment where we have to nurture economic growth, while at the same time establishing a sound protection system for vulnerable workers.
In 2009, the people of South Africa gave the ANC the mandate to take the following steps to prevent the exploitation of workers: Ensure decent work for all workers, as well as protect the employment relationship; introduce laws to regulate contract work, subcontracting and outsourcing; address the problems of labour broking and prohibit certain abusive practices; introduce provisions to facilitate unionisation of workers and the conclusion of sectoral collective agreements to cover vulnerable workers in these different legal relationships; and ensure the right to permanent employment for affected workers.
Protecting vulnerable workers is not an option but a duty imposed on us by the Constitution of this country. The obsession with cheap labour and the exploitation of workers as the modus of profit accumulation has to come to an end. Employers must abandon business models that rely on cheap labour as the foundation for profitability.
It is also absurd that every time the ANC-led government introduces measures to protect vulnerable workers, it is blackmailed with job losses. Some even mount the propaganda that labour brokers create jobs when it is companies that create jobs. Labour brokers are mere intermediaries whose survival is based on slicing off a big chunk of workers' hard-earned wages.
In 2008, the Portfolio Committee on Labour took the decision to hold a public hearing on labour broking, given the amount of public debate and the uproar from workers about the abuses that were taking place in the labour broking business. As a result of the countrywide submissions and public hearings that were held in various provinces, the committee came up with a set of recommendations to the Department of Labour. The current amendments have their origins in the growing informalisation or casualisation of work that has become a feature of the South African labour market over the past decade.
In 2009, the ANC's election manifesto gave urgency to the task of introducing amendments by setting out the passing of the Labour Relations Amendment Bill by this House, which will ensure that anomalies and uncertainties that have arisen from the interpretation of the labour relations and the basic conditions of employment legislation are clarified; that the primary labour market institutions such as the Commission for Conciliation, Mediation and Arbitration, the Labour Court, the Essential Services Committee and the Labour Inspectorate are strengthened; that vulnerable categories of workers receive adequate protection and are employed in conditions of decent work; and that South Africa complies with its international obligations in terms of international labour standards.
The ANC cares about its people and is ready to find solutions that accommodate the concerns of people. As such, the regulatory provisions that deal with temporary employment services, following last week's proposal for a zero-month transition period, the ANC agreed on a three-month transitional period for the temporary employment service and the client to determine if a vacancy exists within a company to place the employee with the client company.
For the ANC, this was not an easy turnaround, understanding the cases of abuse that were brought before the committee during the public hearings in 2008. However, this was another instance where we had to find the delicate balance between the ideal and the concerns of others; hence we had to swallow the bitter pill in the interests of progress.
Let me take this opportunity to thank the hon members who serve in the Portfolio Committee on Labour for their co-operation, albeit robust and extremely difficult at times. We may have had our differences in some instances, but that is the nature of the beast that we are dealing with, proverbially speaking. I hope this House will be united in giving these Bills the green light, as that would be the right thing to do. I thank you. [Applause.]
Hon Deputy Speaker, an important objective of the National Development Plan, NDP, is that the unemployment rate in the country should fall from 24,9% in June 2012 to 14% by 2020, and to 6% by 2030. This requires an additional 11 million jobs. The total employment should rise from 13 million to 24 million. We are very far from achieving these targets, with the latest unemployment figures revealing an official rate of 25,2%.
Among several significant actions to be taken to achieve this goal, says the NDP, South Africa should, and I quote: "Strengthen dispute resolution mechanisms in the labour market with a view to reducing tension and violence." The DA agrees. That is why I wrote to the Secretary to Parliament yesterday requesting urgent additional amendments to the Bill to be introduced and debated here today, in terms of National Assembly Rule 254. Our proposals were aimed at democratising labour relations as a means of reducing tension and violence, as called for by the NDP. Regrettably, we learnt this morning that our request had been rejected.
Deputy Speaker, the need for reform of South Africa's labour framework cannot be overstated. Reform is urgently needed to address the underlying causes of labour unrest and job losses in our country. The DA believes that section 64 of the Labour Relations Amendment Bill, which requires that unionised workers should ballot before embarking on a strike, would have gone a long way towards achieving the important goal of bringing stability and peace to the labour market, particularly in the strike-prone mining industry.
Unfortunately, the ANC Members of Parliament in the Portfolio Committee on Labour have voted to have the section removed from the Bill. This section was included in the Bill to reintroduce the requirement of a ballot before a protected strike or a lockout could take place. This amendment seeks to prevent industrial action being staged if it enjoys only minority support because violence and intimidation are more likely to occur under such circumstances. It was never about the right to strike, which is entrenched in our labour relations framework. Who of us can disagree with that rationale, given our experiences with the ever increasing number of strikes in our turbulent labour relations environment? Well, the ANC disagrees. They believe business as usual in the labour relations environment is the way to go - a position informed by their alliance with the only player who has a vested interest in things staying as they are, the Congress of SA Trade Unions, Cosatu. The DA disagrees. The status quo will be a copout.
The decision to remove the proposed amendment, which was intended to democratise labour relations as a measure to limit violence and intimidation in labour relations, makes a mockery of the entire legislative process over the last three years, including public hearings in Parliament and consultations in the National Economic Development and Labour Council, Nedlac. Now, the Bill is being stampeded through this House. This is the strongest indication yet that the ANC is willing to pander to its alliance partner, labour federation Cosatu, ahead of next year's general elections, even if it means effectively voting in favour of legislation that perpetuates violence, intimidation and nondemocratic values. [Interjections.]
The people of South Africa must take note of what happens in this House today. What is happening is nothing short of a sellout of the NDP's commitment to economic growth and the elimination of poverty and inequality to the narrow interests of the ANC government and its allies. Hon Deputy Speaker, the hon former Chief Whip of the Majority Party is right. Decisions taken at Nedlac are not binding on the social partners, and therein lies a major problem. This is why Nedlac has lost integrity and credibility and its critics see the council as mere window-dressing. The key role-players, government, labour and business, no longer take the forum seriously. So, why ... [Interjections.]
Hon Chair, I have a point of order. For the four years that I have been here, I never made mention of Nedlac in this House. So, this is a blue lie.
So, why is the government budgeting R27 million for the 2013- 14 financial year to keep the council going? There is another serious problem regarding this amending Bill. The ANC has also rejected an amendment to a section of the Bill which proposes that temporary employment service placements should last for six months only, after which the placed employee would be deemed an employee of the client.
The DA argued for a 12-month period, but we were persuaded to accept the six months proposed in the Bill as reasonable, but the ANC disagreed and reduced the period to three months. Earlier, they had argued for a zero- month period which, if it had prevailed, would have effectively banned temporary employment services or labour broking, as the trade is commonly called. Notwithstanding the ANC's reluctant climbdown, the DA believes that rejection of the original proposal will cost the country dearly in terms of job losses. The research speaks for itself. The effective banning of labour brokers would result in a loss of employment for more than 850 000 workers currently employed by labour brokers.
This is in terms of the Department of Labour's own initial regulatory impact assessment, which also warned that banning labour brokers would not only contribute to increased levels of unemployment, but also "deprive the households attached to these workers of a valuable source of wage income". No one knows - as the Minister indeed indicated - what the impact of the three-month period would be, since the DA's calls for a new regulatory impact assessment were rejected. In our struggle to eliminate unemployment and poverty, the ANC's gamble is most certainly a very risky one indeed.
According to the Adcorp Employment Index for May 2013, labour brokers constitute a R44 billion industry employing 19 500 internal staff and just over one million agency workers and temps in the country. "Labour broking is the fastest growing sector of the South African labour market", says Loane Sharp, Adcorp's labour economist. It would seem that recent calls by President Jacob Zuma to Members of this Parliament to put South Africa first as we do our work have been ignored by members of his own party as they pushed through last-minute amendments to this Bill. During the heady days of apartheid, I and millions of other people in the country could not understand how the National Party could continue to pass one bad and destructive law after another. Now I understand. First, there was the Protection of State Information Bill, also known as the Secrecy Bill, and now there is a Labour Relations Amendment Bill. If this Bill is passed, it will be a very bad and destructive law and the ANC, Cosatu and the rest of the people of South Africa will come to regret this day. History will judge us very severely when hundreds of thousands of hungry and angry people will roam the streets of our townships, suburbs and cities and when the once vulnerable workers, in whose name the Bill was passed, have become even more vulnerable, unemployed, and destitute job seekers. Remember this day.
What South Africa needs now is inspirational leadership, multiparty engagement and determination to bring about true reform in the best interests of the country's future. South Africa can no longer afford to be held hostage by those who serve their own narrow interests while the poor, the vulnerable and the unemployed are left out in the cold. [Interjections.] [Applause.]
In the words of Mr Herman Mashaba, Chairman of the Free Market Foundation:
Instead of destroying jobs through unwise labour legislation, the government should be exploring every possible way to increase the demand for labour. A part-time job through a labour broker might not be the most favoured option of a job seeker, but it is certainly a great deal better than long-term unemployment.
The DA will not support this Bill. [Applause.]
Chairperson, on a point of order: Can I ask you to explain why the cameras were not working while our member was speaking?
We will find out, Chief Whip. Qhubeka, ntate. [You may proceed, sir.]
I only need a microphone; I do not need a camera. [Laughter.] Hon Chairperson, hon Ministers, hon members, the debate is important to the country as a whole. It is not only important to the employers and the employees. It is not only about the National Economic Development and Labour Council's constituencies. This debate is about the unemployed, the unorganised workers and emerging independent trade unions.
Hon Chairperson, this Bill deals with several issues that Cope agrees with. There is only one issue in this Bill that we are not happy about. I believe that the debates within the portfolio committee were constructive and patriotic, hence the clarity of areas of agreement and those of disagreement. Let me start with areas of agreement that I think are also progressive. The Bill deals with procedures that will grant minority unions certain rights in the workplace. The rights involve organisational rights, which we hope will reduce strikes involving recognition rights.
It is also worth mentioning that the Bill entrenches collective bargaining within our industrial relations regime. Since collective bargaining is presently under attack from reactionary forces, the Bill is putting in place procedures for nonparties to apply for exemptions from bargaining councils' collective agreements.
This Bill also affords workers the right to picket even at places that are not necessarily the property of their employers as long as the other affected parties have been given the opportunity to make presentations. This Bill also gives the Minister the power to appoint the Essential Services Committee. This committee will handle all issues relating to the debates about essential services. Cope hopes that the establishment of this committee will bring certainty to the debate about this subject.
The issue of temporary employment services, which is usually referred to as labour broking, has been a hot issue. Cope agrees with the amendment of allowing people to be employed through the temporary employment services for a maximum of three months. Cope believes that no employee should be permanently temporary. Any employer who employs anybody for a period of more than two months should be clear that such a vacancy exists and therefore somebody needs to fill the post on a permanent basis. [Applause.] This clause brings an end to the super-exploitation we are all opposed to. I hope so. Whilst it gives the right to those involved in the temporary employment services to exist, it also provides protection to vulnerable workers who are unable to defend themselves against super-exploitation.
Cope's disagreement arises from the ANC's rejection of the department's proposals to introduce balloting of members of the trade union as part of the procedure before a protected strike can be embarked upon. Cope believes that balloting is the most democratic process of legitimising a strike. Whilst the Constitution guarantees the right to strike, the principal Act gives direction about procedures to be followed to ensure that the strike is protected, or not.
The question is: Why is the ANC afraid to give workers who ultimately have to go on strike the last word about whether they want to go on strike or not?
Cope believes that the only way to legitimise any strike is to allow affected workers the right to choose through a secret ballot. If the majority of the workers vote for the strike, then the strike should be protected. In the same breath, if the majority of workers vote against going on strike, then the strike should be unprotected. This is how democracy works.
The rejection of this democratic process by the ANC is regarded by Cope as illogical and unreasonable. This process does not take away the right of workers to strike. It regularises and legitimises the strikes. Cope believes that democrats should support the Minister's proposal in this regard.
Hon Chairperson, the last point I wanted to deal with is that hon Manamela came here, stood here and said a lot of things that do not make sense. However, what he forgets is that he is not a leader of the ANC, but of the South African Communist Party, the party that is afraid to contest elections. He is here because he made a noise through the Young Communist League and was put on the list of the ANC. If you are as brave as you claim to be and you believe in communism, why don't you, as a communist party, come and contest elections, like all of us who have contested elections? [Interjections.]
Hon Kganare, you must always recognise the Chair. You are now simply ... [Interjections.]
Through you, Chair, your party should be brave enough because, quite frankly, it is just parasitic at the moment. There are no principles, policy and strategy. It is purely parasitic in order to have members in Parliament! [Time expired.] [Interjections.] [Applause.]
Order, hon members, please! Hon Watson, I am sorry about that. We were told that there was a temporary surge of power upstairs, but it is back to normal now. We apologise for that. [Interjections.]
House Chairperson, the Labour Relations Amendment Bill represents, on the whole, a step forward in the drive to create better working conditions and better relations between employers and employees. The recent strikes in the mining sector have shown us the need to step up efforts to create a much more flexible labour environment that should not only address issues of employees who are represented by unions, but also ensure that the employers are still capable of employing more people and keeping the business afloat.
The main sticking point in the Bill is the issue of labour brokers, where the imprint of Cosatu on the issue is very clear. The IFP's stand on this issue is that labour brokers should not be removed but should in fact be regulated. The removal of labour brokers will ensure that the number of unemployed people increases and puts even more pressure on government to produce jobs. Regulation of labour brokers can be done along strict guidelines with requirements such as companies obtaining proper registration and having established premises where they work. Instead of removing a section of the economy that ensures that people get job opportunities, we should aid it and streamline its purposes.
Another issue on the table, which would be welcomed by the IFP, is the steps that are proposed to provide protection for employees who work for three months or less. We welcome the idea that the termination of temporary employees should constitute a dismissal, which thereby opens the door for the employees to challenge their dismissal in court, if they believe it to be unfair in any way. This will prevent any abuse by employers, some of whom terminate temporary employees' contracts before the cut-off time so as to avoid having to accommodate these employees in their organisations. The IFP cannot tolerate this exploitation by employers, and we will not support any measures that seek to exploit our people.
The instability in the labour market, as shown by strikes of workers from different sectors, has pushed our economy into turmoil. The rand continues to weaken in the face of the strengthening dollar, which is not helped by the cost to the economy of strike action. The immediate impact has been the withdrawal or reduction of foreign direct investment, which also increases the number of unemployed workers in the country as companies have less money to employ people. We need to create a legislative framework that will encourage, not hinder, foreign direct investment. We cannot continue to implement policies that undermine the rights of workers and weaken our economy. Whether we like it or not, our economy is affected by foreign markets and, if we are to grow, we will need to enact policies that will not undermine our economy in an attempt to satisfy the desires of trade unions.
I just want to congratulate my hon brother there, hon Manamela, for the progressive reading that he is doing. I think it will serve him well and maybe give him the courage to contest elections with his party. I thank you. [Laughter.] [Interjections.] [Applause.]
Chairperson, the fundamental changes made to the Labour Relations Act have kept the members of this parliamentary Portfolio Committee on Labour busy for a prolonged period of time. These amendments, in one respect, are important in substance, but in other respects also in elucidating the differing world views that exist with regard to the future of this country. Whilst all members of the committee may agree that we must strive towards building a prosperous future for the people of South Africa, we most definitely disagree on how this must be achieved.
Upon further analysis, two lessons can be gleaned from this legislative process.
Eerstens, dit is steeds die mantra van die ANC om alle probleme in die land aan te spreek met wetgewing, regulering en sentralisasie. Daar is natuurlik plek vir sinvolle en rasionele wetgewing in enige grondwetlike bedeling, maar die ANC sal moet besef dat oorregulering kontraproduktief is. Dit is nie 'n wonderkuur nie. 'n Regering wat te veel toue vir sy burgers span om sodoende hul gedrag te reguleer, kan so maklik self daarin verstrengel raak. Uiteindelik irriteer en frustreer die staat sy burgers, eerder as om 'n hulpmiddel vir ekonomiese groei te wees. (Translation of Afrikaans paragraph follows.)
[Firstly, it is still the mantra of the ANC to address all challenges of the country by way of legislation, regulation, and centralisation. There certainly is room for sensible and rational legislation in any constitutional dispensation; however, the ANC will have to realise that overregulation is counterproductive. It is not a panacea. A government that is using too many ropes to regulate the behaviour of its citizens can so easily get entangled in them itself. In the end the state is only irritating and frustrating its citizens rather than acting as a resource for economic growth.]
An example of such overregulation is the endeavour of this amending legislation to regulate labour brokers. The ANC, at the insistence of Cosatu, did try to ban labour brokers outright. Whilst this was somewhat successfully resisted by the opposition in that the ANC did in the end accept the three-month period of nonpermanent employment before an employee is deemed to be permanent, this will still have a stifling effect on employment in general. There is no evidence that informs this policy decision to curb the existence of labour brokers. The outright banning of labour brokers in Namibia, at least for a certain period, did not result in any increase in permanent employment in that country. So what is probably going to happen is that nonpermanent employment will continue in other forms as people desperately seek jobs in whatever form to survive.
In the end, it would have been better to have allowed the free operation of labour brokers, subject to industry regulation, where instances of abuse are systemic, like in the mining industry. Currently, as the law stands, labour brokers in noncontentious industries must apply for more freedoms, in contrast with the Constitution, which states that freedom of trade and occupation is a given and can only be reasonably restricted. So, the ANC has thus turned the logic on its head.
Tweedens is dit duidelik dat die ANC vir Cosatu ter wille is weens die komende verkiesing. Die weiering van die ANC om stemming toe te laat voordat 'n unie op 'n staking mag gaan, moet in daardie lig verstaan word. Die ANC moet egter kennis neem van Cosatu se kwynende steun en maar eerder afskeid neem van hierdie sosialistiese maatjie wie se beleid Suid-Afrika net op 'n verdere pad van ekonomiese stagnasie sal plaas.
Tyd sal nou leer of die slim wysigings wat aan die Wet op Arbeidsverhoudinge aangebring is wel werkskepping gaan bevorder. Ons by die VF Plus het egter ook al gesien hoe onbedoelde gevolge slim planne in die wiele kan ry. Dankie, Voorsitter. (Translation of Afrikaans paragraph follows.) [Secondly, it is evident that the ANC is obliging Cosatu as a result of the upcoming elections. The ANC's refusal to allow for voting before a union can go on strike should be seen in this light. However, the ANC should take note of Cosatu's dwindling support, and should rather bid farewell to this socialist friend whose policy will only place South Africa on a road to further economic stagnation.
Time will now tell whether or not these clever amendments to the Labour Relations Act will indeed promote job creation. However, as the FF Plus we have also seen how unintended consequences can bedevil clever plans. Thank you, Chairperson.]
House Chairperson, hon members, I greet you. While members are so obsessed about labour brokers and the Labour Relations Act, LRA, let me remind you about the purpose of the Act. It is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objective of the Act. It is not only about labour brokers, as you are making the Labour Relations Act out to be.
This gives effect to section 27, which is the Chapter on Fundamental Rights that are entrenched in the Constitution, and they are as follows:
Every person shall have the right to fair labour practices; workers shall have the right to form and join trade unions; employers shall have the right to form and join employers' organisations of their choice; workers and employers shall have the right to organise and bargain collectively; workers shall have the right to strike for the purpose of collective bargaining. Every employee has the right to participate in forming a trade union or federation of trade unions and to join any trade union and subject themselves to its constitution. Hon members, balloting was necessary before the current principal Labour Relations Act came into existence. It was done away with when very clear, simple procedures in section 64 of the Principal Act outlined the process of strike action, which is the right to strike and recourse to lockout. Section 64 says:
Every employee has the right to strike and every employer has recourse to lockout if the issue of a dispute has been referred to a council or to a commission, as required by the Act.
In any bargaining there are always bargaining agents. And in this case, trade unions bargain on behalf of their members. It is common practice that before a protected strike commences parties would meet and agree on strike rules, which include that workers would be on the premises of the employer during working hours, use facilities like toilets and canteens, etc, and that the marshals allocated by the trade unions will guide striking workers in the event of a march.
There is no place for violence and lawlessness in our industrial relations' world of work. We therefore condemn in the strongest terms anarchy during strike actions. There are clearly laid down procedures in the Labour Relations Act on the right to strike and in the event that workers embark on unprotected strike action.
We, the ANC, in the portfolio committee rejected the clause on balloting in the committee because we believe that balloting was used to curtail the right to strike. Secondly, it was debated that there seems to be no link between balloting and the so-called "wildcat" strike action - the name given by the media - we talk about unprotected strike action.
According to this argument, balloting does not prevent the so-called wildcat strikes or violence during strikes. Every effort must be pursued to end violence and lawlessness during strike actions and the carrying of weapons of whatever kind must be prohibited. The worker's leaders must be called upon to provide leadership and prevent lawlessness in the strikes.
The truth must be told; it is not law that will prevent undesirable behaviour during strikes, but the change in the attitude of all involved. The way forward should not rely on the labour laws alone, but also on better co-ordination between and amongst departments and a commitment from the leadership of employers and labour, as they are key players in the labour relations space.
The notion that it is only workers who are to blame for undesirable behaviour in a strike is also not balanced, because there are instances where the unruly behaviour of striking workers is as a result of provocation by the employers and passers-by. Passers-by often hurl insults at striking workers along the picket lines and this results in unnecessary clashes. The unwritten rule in more mature democracies is that people do not cross the picket lines, but in South Africa what we call a picket line does not even come close to qualifying.
Lastly, the lawlessness in strikes is outside of the legislative remit of the labour market as they tend to be criminal actions and in such an event the law enforcement agencies need to be brought in. Thank you.
House Chairperson, hon members, Azapo has issues with the Labour Relations Amendment Bill. We are on record as having called for a complete ban on labour brokers. We said that labour brokers do not create employment and we still repeat the point. We know the discussions that took place in Nedlac and the final product that now tries to regulate instead of ban labour brokers. We concede that we have lost this round and grudgingly accept the outcome. The Azanian People's Organisation welcomes the fact that employees can no longer be made temporary for an indefinite period. We are worried, though, that the employers can still rotate employees in a two-month period to avoid the three-month period contained in the Bill. The Bill should have prohibited employment of one or more employees in a vacant position for longer than three months. We support the idea that workers doing the same job should have the same benefits regardless of whether they have been employed through labour brokers or were employed directly.
The Azanian People's Organisation is concerned that the Bill does not go as far as imposing the duty to bargain on employers. We hold the view that collective bargaining is the only way to maintain labour peace, and that there should be a duty on the part of both labour and the employer to bargain when there are problems in the workplace. We welcome the extension of organisational rights to unions that are sufficiently representative.
The idea of majoritarianism and the winner-takes-all has always been problematic. We find the timing of this change very suspicious as it comes at a time when the very unions that enforced the principle of majoritarianism and blocked other unions' access to their organisational rights, are themselves becoming minority unions. Is it a coincidence that these Bills come when the workers are rebelling against unions that are in cahoots with employers? Workers of our land are leaving sweetheart unions in their numbers and they are affirming worker control.
We do not understand why people should have problems with balloting, because balloting is democratic and it also ensures worker control. Workers can't receive faxes from head office that they should go on strike. It must be the workers who say yes or no to strikes. With the concerns that we have raised, we acknowledge the positives that are contained in the Bill. Azapo will therefore support the Bill. Thank you.
Chairperson, Ministers, hon Members of Parliament, it must be noted that over the past two decades business owners in South Africa have increasingly sought to externalise the traditional full-time, permanent employer-employee relationship into the triangular labour brokers' connection. This occurs when labour brokers make workers available to third-party clients that assign their duties and supervise the execution of their duties.
In what appears to be a glaring omission, section 198 of the principal Act does not extend the shared responsibilities of some of the most significant protection offered by the Labour Relations Act, 66 of 1995, such as protection against unfair dismissal and unfair labour practices perpetrated by the client against his or her workers.
Clients may instruct labour brokers only to provide persons who belong to a particular race group; persons who follow a particular religion or who are not married or pregnant. This, I submit, does extend to unequal treatment between permanent employees of a client and those persons placed by a labour broker. It is within that context that the ANC argued that in amending section 198 of the principal Act, placement of persons by labour brokers should not exceed three months. This is to be certain, whether vacancies are of a temporary nature or permanent. We are avoiding super- exploitation of vulnerable workers by inserting these three months.
Chairperson, I think it is important to put the temporary employment service into context; that section 198 talks to the temporary employment service. As other speakers before me have already indicated, employers normally use temporary employment service workers who have been placed by those temporary employment services for the longer term, and the purpose of reducing that by amending the current section 198 is to avoid that situation because one cannot have a worker who is temporary for the rest of his or her life. If someone is employed on a temporary basis, it is for a specified period and thereafter it is no longer temporal if the services of that worker are still required; hence we are saying three months will be enough.
A number of issues have been raised by the DA in particular as well as Cope on the issue of balloting. Refering to section 64 of the Labour Relations Act, Act 66 of 1995, this is an Act that replaced the Labour Relations Act of 1956, where balloting was a necessity in terms of that legislation.
Now, mindful of the national strike by NUM in 1987, where more than 170 000 workers went on strike, what happened after balloting? The employers came back and challenged that. Mindful of the national strike of Numsa of 1992, there was a ballot that was followed, but then, what happened? So, you can't then come here today and argue that in order for a strike to be legitimate there is the need for a ballot. You can't then say that that is democratic! [Interjections.]
Of course it is.
If that is democratic, where have you balloted before coming to this podium and saying what you said? You have not balloted anywhere! [Applause.] You simply came here ... [Interjections.]
The problem is that we are arguing with people who have never been part of trade unions; they don't know how trade unions operate. [Laughter.] [Interjections.] There is no head office of trade unions that simply sends a fax to the local offices of that trade union that says, "strike tomorrow". It does not work that way. A protected strike comes as a result of bargaining, and during the bargaining there is feedback to members. Members give their representatives mandates and say, "go back and compromise on this, don't move on that; then, if employers don't budge, then we are prepared to strike". It is the members who say that through the structures of the union. It's a pity you have never been a worker, for that matter; that is why you don't know these things. [Applause.]
Regarding the DA ... [Interjections.]
Viva!
Viva what? [Laughter.] [Applause.] [Interjections.] It is important for you to understand the origin of the NDP. The NDP came as a result of the 52nd Conference of the ANC in Polokwane, where a resolution was taken to establish the National Planning Commission. Where were you? [Interjections.]
Why are you shouting?
I want you to hear clearly. [Interjections.]
With regard to the banning of labour brokers, the ANC, in arguing on this Bill, never mentioned the word "ban". The ANC said that labour brokers must exist, however, their responsibilities must be clarified, because they are not employing anyone except their receptionists, if they do have offices, or those who work at their car-boot sales - those are labour brokers. We asked if anyone could convince us, and no one did that, because they can't and they will just tell us about democratisation. [Interjections.]
Cope spoke about Buti here, who is a leader of the communist party ... [Interjections.]
That is Comrade Manamela.
He is Comrade Buti to me. [Interjections.]
Order, hon member.
Comrade hon Manamela. [Laughter.] He is a member of the SACP and a member of the central committee and the national secretary of the Young Communist League, as well as a member of the ANC, who is in good standing. That is why he is here. [Interjections.]
He did not cross the line. He has been a member of the ANC; he is still with the ANC, and he will die being a member of the ANC. [Applause.] So, Cope must go to its conference instead of telling the SACP to contest elections. Start by going to the conference first and forget about the court. Go to the conference for you to elect your own leaders. [Applause.]
The FF Plus is saying that the ANC has come to its right mind, but he is hardly in the portfolio committee in the first place and, secondly, the ANC argues by putting facts on the table and if you can't argue with the ANC, don't blame the ANC for your not understanding how to argue.
We were not expecting the DA to support this Bill. They are always talking about Regulatory Impact Assessment, RIA, and we told them in the committee that they should do their own RIA because government had done an RIA before this Bill was presented to us. They should go and do theirs! They can't, and they come here and tell us that they wanted an RIA, but it was rejected. [Applause.] What we must all be mindful of is what these amendments are and why they are here today. [Interjections.] Forget about time, DA.
Concerning the area that speaks to workers' rights - the Ready to Govern document of 1992 - workers have fought long and hard for their right to set up independent trade unions their right to engage in collective bargaining and their right to strike. The ANC, without the DA, supports this Bill. [Time expired.] [Applause.]
House Chairperson, hon members, firstly, let me thank the political parties who have supported us. I also want to indicate to hon member Dikobo that these Bills were published in 2010. They did not just appear because there is unrest in the mining sector. Let me also indicate to the members that maybe the first thing they have to do is to ask themselves what the causes are of the unrest in the mining sector. It is because the companies themselves have negotiated with the committees of workers that are not recognised in terms of the laws of this country. They have not even respected their own Companies Act. That is why this unrest has taken place in those particular areas.
Let me remind the hon member Motau that in terms of the Regulatory Impact Assessment, RIA when we introduced these Bills we also submitted the RIA to the portfolio committee. I want to say that they wanted to redo it - they were supposed to do it again - but there was no difference, because we were even consulting now and again with those who were assisting us with those particular areas.
Along with the issue of balloting, I think we also need to include picketing, because those two issues were not part of the initial Bill. However, they were proposed by both organised labour and organised business. When they did not agree, they requested that those two clauses should be taken out of the Bill. However, we did not take them out. We said they must go to the public hearings and request the officials, including the committees of Parliament, to take those particular clauses out because they were already there in the Bill. That is why they are no longer in the Bill.
At the same time, I want to say that when we said we have to deal with the abusive systems that are practised by the labour brokers, in terms of this proposed amendment, what we have done is this. There is a clause that says whoever claims to be an employer must employ the worker in terms of the Labour Relations Act, the Basic Conditions of Employment Act, bargaining agreements and also the sectoral determination. So, from day one, in terms of these proposed amendments, the workers of this country will be protected for the first time, even if they are being employed by the so-called labour brokers. They will be protected by these particular amendments.
I therefore also want to say to the hon Motau, when you retire from this Parliament, you will get a pension. However, the worker who is employed by the labour broker will not get a pension and is not even covered by the Unemployment Insurance Fund. If that person is injured today, he will not get compensation from the employer. Therefore, if we are all saying we need to protect the vulnerable workers, let us practise what we preach. I thank you, hon House Chair. [Applause.]
Debate concluded.
Question put: That the Bill be read a second time.
Division demanded.
The House divided.
Hon members, order! Order, please! [Interjections.] Hon members, a division has been called. [Interjections.] Let me just warn you here first. You are probably aware that we have been experiencing problems with the electronic system in the House this afternoon. A division has now been requested and the House has to vote. We want to attempt to use the electronic system as it is a stand-alone system. If that is not successful, however, we shall ask the Whips to assist us with conducting a manual vote. [Interjections.] We apologise for the inconvenience, but thank hon members for their co-operation. We shall now proceed to vote in the normal way.
The bells will now be rung for five minutes. [Interjections.]
Order, hon members, will you take your seats. [Interjections.] Order, hon members! Will you take your seats. [Interjections.]
During division:
Chairperson, may I address you? I would like to establish whether there is a quorum in the House before you put the question. [Interjections.]
Order, hon members! [Interjections.] Order! Hon member, we are in a voting session. The results of the vote will determine whether there is a quorum or not. [Applause.]
Chairperson, I would like to rise on Rule 84, which says that where a division has been called for, the presiding officer will first ascertain whether there are at least four members in favour of that division. If there are not four members, the presiding officer will then proceed to declare the outcome of the vote forthwith. Thank you. [Interjections.] [Applause.]
Order, hon members! Hon Deputy Minister, hon members, I was informed at the time the vote was called for that there were four members of the DA present in the House. We will thus proceed with the voting. [Interjections.]
Chairperson, there might have been four members of the DA present, but was it ascertained whether they were in favour of the division? [Interjections.]
Hon member, let us proceed with the vote. [Interjections.] Order, hon members! Order! [Interjections.] Order, hon members! I would like to remind members that they may only vote from their allocated seats. [Interjections.]
Chairperson, while the counting proceeds, may I address you on a procedural matter?
You may continue, hon member.
Chairperson, following on the matter raised by the hon Nel, I wish to direct your attention to Rules 87 and 88 of the National Assembly Rules. With regard to the minority parties, when a division takes place, if fewer than 15 members appear on one side, the presiding officer should forthwith declare the decision on the question.
With respect to Rule 88, a member demanding a division shall not leave the Chamber until the result of the division has been declared, and shall vote with those who, in the opinion of the presiding officer, are in the minority. [Interjections.] I know the vote has taken place, but I draw your attention to these Rules. Thank you, Chairperson. [Interjections.] [Applause.]
Thank you, hon Minister. [Interjections.] Order, hon members.
Hon Minister, we will deal with the matters, as you have raised them. With respect to the first Rule that you raised, it has never been applied in the House before. In terms of the second part you have raised, indeed, you are correct, as the hon Deputy Minister is also correct in that at the time that the vote is requested, there should be at least four of those members present. However, what has happened is that some of those members who were part of those four from that party are no longer in the House. At the time it was requested, however, they were indeed there, and ... [Interjections.] Order, hon members! It is a matter that will require further deliberation and decision.
However, in terms of the question that was put to the House, I wish to inform hon members that we do not have a quorum in the House. We are 21 members short of a quorum. As a result, I will therefore postpone the decision on this vote. We will monitor the situation during the course of this evening in respect of the other Bills that are also due for consideration. [Interjections.] Order!
Chairperson, I hear you on the matter you have raised with respect to four members needing to be in the call or part of the call for a division. However, I believe Rules 87 and 88 are consequential. They are not related to that number of four, which relates to the calling for a division, and the fact that we have not used these Rules before does not mean they do not apply. [Applause.] Chairperson, I direct you to your authority in terms of Rule 87, which reads, "when, on a division taking place, fewer than 15 members appear on one side, the presiding officer shall forthwith declare the decision on the question." [Interjections.]
May I address you, Chairperson? There were four members of the DA present when the division was called for. [Interjections.]
Order, hon members!
There are still four members who are supporting the division. Some of our colleagues on the other opposition benches are supporting, so the minimum number of four is met, as is the minimum number of 15 on the opposition benches. [Interjections.]
Hon member, I am not sure if there are, indeed, 15 members from the opposition in the House. [Interjections.]
Hon Chairperson, may I address you on the matter of a decision on the basis of a quorum in the House? [Interjections.] The Rule is very clear. It is Rule 25, which states, "except where the Constitution provides otherwise, a minority of the members of the National Assembly must be present before a vote may be taken on a Bill or an amendment to a Bill." Clearly, without the quorum, all of the other matters fall away. We do not have a quorum, so the decision cannot be declared. Thank you. [Interjections.]
Chairperson, I wish to address you on a point of order: There is agreement in the House that when Chairpersons have given rulings, the only place where such rulings can be challenged is in the Rules Committee. What are we doing now? Thank you. [Applause.]
Hon member, you wanted to raise a point of order, so I am listening to your point of order!
The point of order is that ...
No, I have heard you. You do not need to repeat it. I have said what we are doing now is that different members have raised points of order, so I am affording members the opportunity to be heard on their points of order. That is what we are doing.
Chairperson, the point of order is that your ruling is being challenged.
Hon member, that is a decision that I will take. [Interjections.] That is a decision I will take.
Hon members, we do not have a minimum number of members present to pass a piece of legislation. That minimum number is 201 members. That is in terms of the Rules and also derived from the Constitution. We will proceed with the other matters in front of us. We will ring the bells again, and then we will make a determination of the number of members that are present in the House. [Interjections.] We will proceed in that manner.
AYES - 172:Abram, S; Adams, P E; Bam-Mugwanya, V; Bhengu, F; Bhengu,P; Bhengu, N R; Bhoola, R B; Bikani, F C; Booi, M S; Borman, G M; Boshigo, D F; Botha, Y R; Bothman, S G; Burgess, C V; Cele, M A; Chiloane, T D; Chohan, F I; Coleman, E M; Dambuza, B N; Daniels, P N; Davies, R H; De Lange, J H; Diale, L N; Dikobo, K J; Ditshetelo, I C; Dlakude, D E; Dlodlo, A; Dlomo, B J; Dube, M C; Fubbs, J L; Gasebonwe, T M A; Gaum, A H; Gcwabaza, N E; Gelderblom, J P; Gigaba, K M N; Gina, N; Gololo, C L; Goqwana, M B; Gumede, D M; Hajaig, F; Huang, S - B; Jeffery, J H; Johnson, M; Kenye, T E; Khoarai, L P; Khumalo, F E; Khunou, N P; Koornhof, G W; Landers, L T; Lesoma, R M M; Lishivha, T E; Maake, J J; Mabedla, N R; Madlala, N M; Madlopha, C Q; Mafolo, M V; Magagula, V V; Magama, H T; Magubane, E; Makasi, X C; Makhubela-Mashele, L S; Makhubele, Z S; Malale, M l; Malgas, H H; Maluleka, H P; Maluleke, J M; Manamela, K B; Manana, N C; Mandela, Z M D; Manganye, J; Mangena, M S; Mashigo, R M; Mashishi, A C; Masutha, T M; Mathebe, D H; Mathibela, N F; Matlanyane, H F; Matshoba, J M; Mavunda, D W; Mayatula, S M; Maziya, A M; Mdakane, M R; Mfeketo, N C; Mfulo, A; Mgabadeli, H C; Mjobo, L N; Mkhulusi, N N P; Mmusi, S G; Mnisi, N A; Mocumi, P A; Mohai, S J; Mohale, M C; Mohorosi, M; Mokoena, A D; Molebatsi, M A; Moloi-Moropa, J C; Moloto, K A; Moss, L N; Motlanthe, K P; Motsepe, R M; Motshekga, M S; Mpontshane, A M; Msweli, H S; Mthethwa, E M; Mushwana, F F; Muthambi, A F; Nchabeleng, M E; Ndebele, J S; Ndlazi, A Z; Nel, A C; Nelson, W J; Nene, N M; Newhoudt-Druchen, W S; Ngcengwane, N D; Ngcobo, B T; Ngcobo, E N N; Ngele, N J; Ngubeni-Maluleka, J P; Ngwenya, W; Ngwenya-Mabila, P C; Nhlengethwa, D G; Njikelana, S J; November, N T; Ntapane, S Z; Ntuli, Z C; Nxesi, T W; Nyalungu, R E; Nyekemba, E; Oliphant, M N; Pandor, G N M; Petersen-Maduna, P; Phaliso, M N; Pilusa-Mosoane, M E; Radebe, G S; Radebe, B A; Ramodibe, D M; Schneemann, G D; Segale-Diswai, M J; Selau, G J; Sibanyoni, J B; Sibiya, D; Sindane, G S; Sithole, S C N; Sizani, P S; Skosana, M B; Smith, V G; Snell, G T; Sogoni, E M; Sonto, M R; Sosibo, J E; Suka, L; Sulliman, E M; Sunduza, T B; Thibedi, J D; Thobejane, S G; Tobias, T V; Tsebe, S R; Tseke, G K; Tsenoli, S L; Tshabalala, J; Tsotetsi, D R; Turok, B; Twala, N M; Van der Merwe, S C; van Rooyen, D D; van Wyk, A; Wayile, Z G; Williams, A J; Williams-De Bruyn, S T; Xaba, P P; Ximbi, D L; Yengeni, L E.
NOES - 7 : Botha, T; George, M E; Kalyan, S V; Kilian, J D; Meshoe, K R J; Motau, S C; Watson, A.
As the result of the division showed that there was not a majority of the members of the Assembly present for a vote to be taken on the Bill as required by Rule 25(2) (a), decision of question postponed.