Employee Relations: Are we just doing orbits, or have we really - - PowerPoint PPT Presentation

Employee Relations: Are we just doing

• rbits, or have we really titled the

trajectory? #reflections post being CCMA Director

Going to cover

š Orbit one: Reminding us of historical context š Orbit two: new institutions, what we expected and what we actually got š Orbit three: Stakeholders role in labour law š Orbit four: Inter and intra union rivalry š Orbit five: Business as a constituency š Orbit six: Broader labour market,20 years on š How do we look at the trajectories for the future?

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Orbit one: Historical context

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Quick overview of employment law history

š 1910 after declaration of South African union š 1924 Industrial Conciliation Act provided for registration of Trade Unions(TU) & Employer

• rganisations ,Established Collective Bargaining frame work, Dispute Resolution framework

:But excluding most black workers from Industrial Relations and qualifications š 1948 Nationalists emerged divisions and encouraged parallel bargaining structures for black workers. TU that emerged then faced a period of intense repression š 1973 strike wave by African TU: Appointment of Wiehahn Commission Recommendations: Black workers freedom of association, voluntary Collective Bargaining. Formation of Industrial court, which fashioned our modern dispensation

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Industrial court : developments

š Set out procedural and substantive fairness š Creating ULP to advantage of all workers, even though meant to favour white workers š Curbed managerial prerogative for first time š Extended in early 1990 to public servants

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Post apartheid labour market: Background

š Implementing was a priority, task team quickly formed, BEFORE real analysis done. Hence amendments were made piecemeal š Draft bill developed with key intent to restructure the collective and individual rights in labour law. First LRA, then BCEA š Encompass all South African workers š Comply with constitutional and international obligation: ILO š All negotiated before labour Market commission submitted its report Premised on the EUPHORIA THAT SOCIAL DIALOGUE AND COMMON VALUES WIN THE DAY

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Orbit two :Intentions of the new structures

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Comparators: comparing new trajectory

Old dispensation

š Conciliation boards: 1. Not achieve resolution, formulaic 2. Time consuming 3. No real dialogue and engagement š Industrial Courts 1. Takes too long( all courts) 2. Too Legalistic 3. Officers not representative 4. Legal representation complicated process 5. Strike issues on CB

New dispensation

š Emphasis on dialogue 1. Compulsory conciliation 2. No legal representation 3. Concise time frames 4. Preserving relationships 5. Access for everyone, especially vulnerable(Bargaining Councils for industry to be formed) 6. Basic hearings on Audi principal š Arbitration 1. Minimal formalities ,reduce legal rep ,speed š Labour court 1. Reduce appeals to reviews. Limit complexity and time

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Framework and thinking for post 1994

Regulated flexibility

š Idea was needed employment flexibility ,(freedom to change employment levels quickly and cheaply) š wage flexibility (freedom to determine without restraint) š functional flexibility ( freedom alter work process ,terms and conditions quickly and cheaply) š labour market security š employment security š job security š work security š representation security

IDEA WAS ADJUSTMENT PER SECTOR, SECTORAL AND WORKPLACE FLEXIBILITY GOVERNED BY FAIRINESS RATIONAILITY AND WORKPLACE CO OPERATION WITH CODE OF PRACTICE REGUALRLY ISSUED AS GUIDANCE

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What did we need to see being done? What actually happened?

š Update and align collective agreements š Review, redesign and simplify disciplinary hearings @ workplaces : Audi rule š CCMA port of last call, vulnerable worker access š Collaboration on dialogue, workplace forums ,develop trust and agree productivity š Implement specialized Labour courts š Design /realign/ create more Bargaining councils š Collective bargaining, based on trust ,needs and sectors/industries

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COLLECTIVE AGREEMENTS

š Needed to review :

• 1. workplace relationships
• 2. progressive reviews of existing bargaining relationships
• 3. look at reducing procedures
• 4. implement co determination at workplace and shop floor levels
• 5. Agreements across sectors, productivity
• 6. Industry based approach to relationships

š In most cases this was not implemented ,and were left with a “hang over” of old agreements.

š Commissioners forced to interpret disputes through them, hence creating almost a dual system

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Institutions: CCMA

EXPECTED: š To Used by vulnerable sectors š Swift quick efficient Dispute Resolution š Minimal legal formalities š Limited representation rights š Dialogue at the workplace š Only “true” cases referred š Address discrimination in workplace š Representative commissioners š Restorative Social justice

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Institutions: CCMA , What happened! .

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Individual rights

• 1. Users of CCMA, mainly business professionals .Decline in use by vulnerable workers.
• 2. Trade Union referrals decline ,rise of consultants ,advice office referrals
• 3. Overly legalistic
• 4. Clinging to proceduralism, excessive internal procedures

š Cottage industry of chairs :Often predetermined outcomes š No dialogue or joint problem solving š Abdication of leadership or decision making : Over reliance on CCMA commissioners š Outsource of Employee Relations aspects of management functions š Ethics š Excessive implementation of workplace Policies and their application

• 5. Changed nature of work , new forms of work : getting around compliance

Institutions: Labour court

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Expected š a specialist court with tenured judges and facilities š Speedy š Understanding of the “social contract” nature of employment laws Unhoped for š Victim of unclear policy certainty, still not resolved 2002 concerns on tenure etc. š Inability to attract judges schooled in the labour market principles ,or get them to stay š Causes very legalistic interpretations on issues š Time taken to give judgements and backlogs developed š Resource challenges š Less efficient management of case management

Institutions: Bargaining Councils

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š Good examples here of how original intentions have not been pursued. š Fractured Industrial Relations This is due to:

• 1. Parties not compromising on extensions, or approaching the process in an inflexible

manner

• 2. Mismanagement of councils and the intentions of having a council
• 3. Overly costly Dispute Resolution and enforcement processes implemented in some

councils

• 4. Lack of accountability, governance and business principals applied in running council
• 5. Parties not working on sector/industry interventions: Big versus small business

Collective Rights

First ten years, relative industrial calm. Minimal violence, strikes focused on wage demands 1. Existing mechanisms used 2. Tentative buy in to the need for higher levels of co operation and mediation 3. Leadership skills used to find resolution Next ten years, seen rise in strike action, violence 1. Socio economic realities 2. Trade union rivalry 3. Bargaining methods remain the same 4. Change in organizer profile 5. Workplace reverted to being a site of struggle 6. Media became an influencer in the bargaining process

Orbit three : Stakeholders

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Stakeholders

š Initial swift implementation was that the united beliefs and aspirations of social outcomes were unified. Laws change society š NEDLAC was seen as world example, and when the structure is examined it is Problems are: 1. Keys participating Stakeholder have changed 2. Many of same people are still there ten or twenty years later. Exclusive club 3. At high level believe delivering to man in the street ,but actually too disconnected because of flux and

• wn/new status in society

4. Political links, influence, undermining of outcomes 5. Downgrade of NEDLAC by government, with a few exceptions 6. Insufficient discussions or acknowledgement about the changing environment, impact on civil society 7. Undermined by its own proponents e.g. Millennium labour council

Orbit three: Inter and intra trade union rivalry

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Trade unions

š Since 2012 fragmented sector and splinter Trade Unions formed š Changing worker voice š Non delivery of expectations š Not updating negotiation strategies: Needs based bargaining š Not adjusting service delivery to constituency š Adopting same approach as every one : Not using protest /strike methods to advantage š Resistance to or lack of understanding of co determination mandates š Governance is lacking š Rise in unprotected strikes š Not adjusting to changing world of work

Orbit Four: Business

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Business challenges

š Need to be unified as one voice, challenges across race, political influence and status š Until recently very influenced by political environment š Insufficient focus given to negotiations, structures etc. by the “right” people š Initially not given senior focus ,this has changed š Government as employer ,clouded some outcomes

Orbit five: Labour Market

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Overall labour market view

š Labour market over 20 years has not really improved: High levels of unemployment, working poor. š Education levels remain single biggest challenge, growing right employees for changing work š Skills still scarce ,move of Seta from direct workplace link in government š Still Racially divided š Fractious and rising conflict: Increased citizen impatience, community protests and political formations becoming mirrored in workplace relationships š Gini coefficient rising š Political uncertainty š Role of modern technology

How do we stop repeating the orbits and re-aligning the trajectory

How do we adjust the orbits and realign the trajectory?

Macro level š Need a full and proper labour market review š Need to have an indaba with a view to forming social compact that looks to balance entrenched productivity at workplaces, while maintaining protections per industry and sector š Leadership commitment š Political support for existing labour market programs ,aligned across government š Examine the role the media plays in wage negotiations

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How do we adjust the orbits and realign the trajectory?

Micro level š Encourage adherence to intention of labour laws š Reduce excessive policy drafting at workplaces š Stimulate dialogue, workplace mediations š Move away from excessive proceduralism and legalism š Encourage parties to engage constructively, examine different ways of getting consensus š Review the many” bites” approach to workplace discipline š Look at properly using all the “shades of grey” that are available in law š Encourage use of “other” DR bodies for more sophisticated parties š Regulate consultants in labour field š Draft ,review and regularly revise code of good practice www.erexchange.co.za

CONTACT INFO

Nerine Kahn

Mobile: 082 854 4454 Switchboard: 011 259 4385 E-mail: nerine@erexchange.co.za info@erexchange.co.za

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In honour of remembering Ronald Bernickow # This is (part) of our story