· Web viewThe militant unionism emerged though the repression of the authoritative administration and management in the late 1980s and the militant unionism was quite effective

REPORT OF THE 8TH REGIONAL CONGRESS OF THE INTERNATIONAL LABOUR RELATIONS ASSOCIATION

(ILERA) HELD ON 09-11 MAY, IN MAURITIUS

REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 20181

REPORT OF THE 8th ILERA REGIONAL CONGRESS HELD IN BALACLAVA, MAURITIUS, 09 - 11 MAY 2018

"CHALLENGES FACING THE FUTURE OF WORK: AFRICAN PERSPECTIVES AND EXPERIENCES”

TABLE OF CONTENTNO PAGE DESCRIPTION1. Contextual Background

2. Sub Theme one (1) – Trends in Employment and Employment Relations in Africa

3. Sub Theme two (2) – Gender and Work

4. Sub Theme three (3) – Public Sector Employment Relations in Africa

5. Sub Theme four (4) – Social Security and Protection in Africa

6. Sub Theme five (5) – Emerging issues in Labour Law7. Sub Theme six (6) – Migrant Labour in Africa8. Sub Theme seven (7) - Skills Development and

Productive Employment in Africa9. Recommendations and Wayfoward

10. Overall Lessons Learnt

1. INTRODUCTION


The report seeks to give a comprehensive account of the 18th Regional

Congress of the International Labour and Employment Relations Association

(ILERA). It is structured into three main parts, namely: Part one locates the

premise within which to construe the report. Part two covers the key topics

addressed by the presenters; the details of which are attached hereto as a disc.

Part three outlines the lessons learnt through the papers that were discussed

at the conference, with emerging issues in Labour Relations, Gender and Work

and Skills Development and Productive Employment in Africa being the heart of

discussions.

2. PART ONE: CONTEXTUAL BACKGROUND

The Public Health and Social Development Sectoral Bargaining Council

(PHSDSBC) is an affiliate of the ILERA Congress. ILERA was established in

1966 in response to a growing need to develop and exchange knowledge in

the field of industrial relations, at an international level, and provide the

academic and the practitioner with a forum for discussion and research.

The general purpose of ILERA is to promote the study of industrial relations

throughout the world in the relevant academic disciplines, by such means as:

a) Encouraging the establishment and development of national association of

industrial relations specialists;

b) Facilitating the spread of information about significant developments in

research and education in the field of industrial relations;

c) Organizing worldwide and regional congresses and publishing their

proceedings; and

d) Promoting internationally planned research, by such means as organising

study groups on particular topics.


The PHSDSBC (herein referred as Council) through its strategic plan,

identified the need to enter into strategic partnerships with likeminded

international organisations.

LERASA, a full Council member of the ILERA since 1995, coordinated the 18 th

ILERA Africa Regional Congress which was a prestigious event graced by

experts from across the African Continent presenting the latest developments

and research in employment relations and numerous related topics as

indicated above.

A total of twenty-one (21) Council delegation attended the conference. The

delegation was made up of Parties i.e. the Employer from both the National

and provincial Department of Health and the National and provincial

Department of Social Development on one hand and the following admitted

five trade union parties organized in the sector; namely NEHAWU; DENOSA;

PSA; HOSPERSA and NUPSAW as well as the staff from the Office of the

General Secretary.

PART TWO

3. Congress

The theme of the congress focused on “challenges facing the future of work:

African perspectives and experiences”. The changing world of work has had a

profound impact on the definition and content of work and power relationships

and the resulting scope of protection and coverage, structures of collective

engagement, conflict resolution, voice and representation in both the

developed world and emerging markets, and for private and public

employment sectors.


This also raises questions about the appropriateness of and the need to revisit

current regulatory framework, including international standards, in an attempt

to help address this fast-changing scenario. Innovative labour and

employment relations, labour law and social security (among others the social

protection floor, the decent work agenda) responses have been called on to

accommodate new contexts, including the many challenges facing traditional

concept, sphere and boundaries of these domains. These developments and

their implications, also for distinct categories of workers, including informal

and migrant workers In Africa, gender and work, skills development and

productive employment in Africa were debated at the 18th ILERA Regional

Congress.

SUB THEME 1: TRENDS IN EMPLOYMENT AND EMPLOYMENT RELATIONS IN AFRICA

3.1 The rise of casualisation of labour in the agricultural sector a retrogressive practice to employment security: the Zimbabwe experience

According to Sachikonye (2001) the increase in casualisation of labour in

Zimbabwe has been pathetic and this is largely attributed to the government

policy of outsourcing. This has resulted in the abolition of some jobs and

services in the public sector, and that has been emulated by the private sector

organizations, which in turn, engage workers to perform the jobs often on a

temporary basis with uncertain wages and without job security. This,

according to the government, is to promote public-private partnership, which in

turn is expected to induce efficiency in the economy. The use of casual

workers allows employers greater flexibility in hiring and firing and adjusting to

swings in production. For the employer, it is less costly to employ casual

labour and thereby enabling the maximisation of profits.REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

5

In Zimbabwe, casualisation of labour became more pronounced in the 1990s

when the government introduced economic reforms in the form of the

Economic Structural Adjustment Programme (ESAP). Sachikonye (2001)

contended that the country’s labour laws were too rigid and could not respond

to the demands of the economic reforms. Employers were simply saying they

needed flexibility in employment relations so that they could hire and fire

employees whenever necessary in response to market demands. On the other

hand, trade unions cried foul because such flexibility resulted in the loss of

jobs and many would leave their employment empty handed. No wonder why

trade unionism became so popular in the early 1990s. Since then, the problem

has continued and intensified but somehow seemed to go unnoticed. Sadly, it

appeared in the form of unfair labour practice cases reported at the Labour

Court.

Casualization of labour has become a subject of great concern as more

workers continue to groan under this strategy of cutting costs by employers

(Benson, 2000). In an ever-changing market with fluctuating demands, a

casualised workforce is seen to be ideal by employers. The expansion of

flexibility in the workplace, which provides fertile ground for casualization of

labour to thrive, can be considered a contributing factor to the intensification of

casualization of labour. Formerly permanent jobs are being changed into

casual jobs to increase production. In casual employment, casualised workers

are often subject to worst conditions of employment than permanent

employees. This gives room to firms to increase their capacity of their

business according to the flows of the market at the expense of the welfare of

their employees (Makwavarara, 2004). Casualization of labour has brought

some dirty working environment where many potential employees in the

labour market are willing to take any job because they have little option of

getting employment. It has become a silent form of exploitation (Thompson,

2003).


Campbell (2004) postulated that casualised workers are deprived of their

rights and benefits when compared with permanent employees. It is evident

that casualised workers in general are more vulnerable to summary dismissal,

sexual harassment and underpayment. Casualization of labour is viewed as

not good because it lowers the wages and the working conditions even of

those employed on a permanent basis. Mitlacher (2007) noted that, the

income flowing for casual workers is uncertain, which in turn, means that the

house hold relying on this income invariably experience financial problems.

Moreover, the invariability of flexible work in some instances may be

uncertain, so that the employees concerned suffer unpredictability, which

affects negatively on how they should organize their lives. Employers also

save generally yet they invest less in training of casual workers relative to

permanent employees.

Casual employees are not privy to some entitlements as permanent

employees (Mitlacher, 2007. The deregulation of the labour market makes it

easier for employers to replace permanent employees with casuals or

temporary employees. Makwavarara (2004) concurred that casualization of

labour is mainly fuelled by flexible labour markets and employment practices.

The economic environment and competitive pressures influence these

practices. Casualization of labour offers the employers the flexibility in the

recruitment of labour and it enables them to get the labour they require when

they need it. Fashoyin (2000) propounded that the increase in labour

casualisation has made employers more flexible in the way they manage their

labour force. This results in flexibility where the number of workers can be

varied to meet the needs of the business without a hassle. Flexibility is

particularly important in the Agricultural sector due to fluctuating labour

requirements (Makwavarara, 2004).


3.1.1 Summary of the Case Studies

There is great concern about the ever-rising casualisation of labour in the

agricultural sector in Africa particularly in Zimbabwe. The study was largely

qualitative and used unstructured interviews and focus group discussions.

Quota sampling technique was used to accommodate all key stakeholders.

Major findings were that; casualization of labour leads to poor working

conditions, job insecurity, extended working hours, underpayment of wages

and non-provision of employment benefits that usually accrue to permanent

employees. It is a form of exploitation and casual workers are not accorded

the same protection as permanent employees even though they often work

under the same conditions. Employers found casualization of labour as a

cheaper and affordable strategy to avoid paying market related wages and

fringe benefits. There is need to enforce labour laws in order to accommodate

basic fundamental rights and fair labour standards towards casualization of

labour to enhance social security and protection.

3.1.2 Lessons from the Cases Casualised employees were needed in the agriculture sector for short

period, which is during the peak of the season for planting, applying

fertilizer, applying herbicides, weeding, harvesting and shelling.

The high unemployment rate in the country contributes to labour

casualization. Employers reduce labour costs by engaging casualised

workers who are cheap to employ compared to permanent employees.

Casualisation of labour in the Agricultural sector was no longer

seasonal but ongoing as a cost cutting measure.

Casualisation of labour was being used as a more rapid adjustment of

employment (such as the ability to hire and fire easily), increasing part-REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

8

time work, fixed-term contracts and temporary jobs. Casuals could be

used to work over the weekends and holidays without employers

observing labour law provisions.

Casualisation of labour is characterized by poor working conditions

such as employment insecurity, working for extended hours, low wages

and an absence of permanent employment benefits.

Both workers and casual workers were ignorant about the policies and

laws pertaining to employment of casual workers.

Poor working conditions were compounded by the lack of proper safety

clothing and equipment. As a result, Occupational Safety and Health

(OSH) remains a challenge in the agriculture sector and yet the sector

has higher risks for workplace hazards through chemical use and

machinery. Employers were failing to provide adequate personal

protective clothing and equipment citing lack of resources due to the

economic challenges and decline in profits. At times, some new

employees are forced to wear second hand protective clothing thus,

exposing workers to safety and health risks, diseases and illness. In

most cases, casual workers are not provided with protective clothing

and have to use their own clothes as the employers insist that there is

no guarantee that they will continue with the job in the event that a

better job opportunity arises elsewhere for them.

Casual workers are vulnerable to exploitation by employers and do not

exercise their right to associate or collectively bargain because they are

deemed unskilled. Although the workers can be affiliated to their trade

union, the General and Agriculture Plantation Workers Union of

Zimbabwe (GAPWUZ), an affiliate of the Zimbabwe Congress of Trade

Unions (ZCTU), its union membership has been on the decline

especially after the Land agrarian reforms of around 2002. The lack of a

vibrant voice often leads to intimidation and victimisation of casual

workers.


Casual workers have less favourable terms of employment than

permanent employees performing the same work, as well as less

security of employment. They often do not receive benefits such as

medical aid, insurance cover, and pension benefits. There is lack of

rights and minimal legal status of casual workers. This threatens access

to resources and entitlements as well as self-ego. Provision of

adequate housing or decent accommodation remains a huge challenge

for agriculture casual workers. Casual workers are at a higher risk of not

getting housing allowances even if they stay outside the farm. Despite

many casual workers being really in need of decent housing, but due to

the low wages they earn, most of them ended up building houses from

mud and poles, and in many cases, the roof and wall is simply grass.

For those who have provision of houses, most of the houses are

dilapidated and require proper maintenance more often to avert

disasters.

Given the paltry wages that casual workers earn, most workers cannot

afford to take family members to government clinics or hospitals. They

resort to traditional medicines, traditional healers and prophets, which

can further expose them to more health complications and risks.

A sizeable number of casuals were mostly children who dropped from

school since their parents could not afford tuition fees. That was also

worsened by distance as a barrier as some schools could be more than

12 kilometres away from their homes. As a result, child labour was

prevalent, as affected families need to make ends meet.

In Zimbabwe, the trend of casualisation of labour is increasing at an

alarming rate as evidenced by most organisations downsizing and

restructuring especially after the lengthy drought of 2013-2015

agricultural seasons and the prevailing macro-economic challenges.


3.1.3 Conclusion The study concluded that casualisation of labour was the most used

alternative form of employment in the Agricultural sector in Zimbabwe as

employers wanted to save costs because they pay low wages, there are no

costs related to social protection and security. There is non-compliance with

the country’s labour laws and other statutory requirements, resulting in the

violation of workers fundamental rights and entitlement to fair labour practices.

Casualisation of labour was therefore causing many adverse effects with

hardly any positives.

3.2 Mainstreaming Decent Work in the Vulnerable Sectors of the Informal Economy, a Zambian Perspective

3.2.1 Abstract The paper analyses the nature of the work deficits that characterise vulnerable

workers in the informal economy. The working environment of workers in the

informal economy is often characterized by decent work deficits such as

denial of rights at work such as belonging to unions, collective bargaining and

absence of quality employment, inadequate access to social protection and

social dialogue. The study reviewed the working environment of informal

economy workers in the vulnerable sectors in order to establish the gaps in

implementing decent work in the informal economy and explored the direct

and indirect measures that Trade Unions can undertake to mainstream decent

work and provide perspective of the future of work in this sector. To conclude

the paper presents ideas and proposals on the extension of decent work to

the vulnerable workers and how the trade unions can improve their capacity

and engage in evidence-based policy advocacy to improve working conditions

for workers in the informal economy.

3.2.1 Introduction


One of Zambia’s main economic challenges is an ever-growing informal

economy. In terms of employment, the informal sector in Zambia employs the

majority of the labour force and has grown rapidly in recent years

(approximately more than a million informal businesses). According to the

Labour Force Survey (2014), 84 percent of the Labour Force is employed in

the informal economy and 16 percent is employed in the formal economy.

Whilst the economy has in the last decade been growing at average of 6

percent annually, almost 40.9 percent of the population live in extreme poverty

while 13.6 percent live in moderate poverty.

The working environment of workers in the informal economy is often

characterized by decent work deficits such as denial of rights at work such as

belonging to unions, collective bargaining and absence of quality employment,

inadequate access to social protection and social dialogue. The challenge

therefore for the government has been to create a conductive environment for

productive and decent work for the majority of workers in the informal

economy.

In response to the challenges in the labour market, the Zambia Decent Work

Country Programme (2013-2016) was designed to address the decent work

deficits in the economy. However, despite the introduction of the decent

country work programme, the pervasive nature of the informal economy

makes it difficult for the decent work deficits to be addressed. The decent work

deficits are a major concern particularly for workers in vulnerable sectors who

are often excluded from the rights to associate and bargain collectively and

are at particular risk due to inadequate legislative protection and insufficient

mechanism for promotion of their collective voice. The situational analysis has

sampled some of the vulnerable sectors in need of immediate attention

including; security guard companies, domestic workers, small/medium

construction firms, own account workers, workers in sub-contracted firms and

the hospitality industry.


The ILO during its conference in 2015 adopted Recommendation 204 which

provides a framework for formalising the informal economy. The

recommendation further identifies the main sectors that constitute the informal

economy and provides the principles that should be taken into account when

designing coherent and integrated strategies to facilitate the transition to the

formal economy. The labour movement in Zambia has recognised the

importance of protecting and safe guarding the interests of and rights of

workers particularly those in the vulnerable sectors who are excluded from

realization of decent work in their work environment. In order for the labour

movement to remain relevant in terms retaining and recruiting new members,

there is need for strategies that would enable the labour movement reach out

to workers in the informal economy. It is against this background that a

situational analysis is being undertaken to analyse he decent work challenges

in the informal economy and identify vulnerable sectors within the informal

economy.

The workers organisations have recognised the need to strengthen and

improve their organisation’s capacity to engage in evidence-based policy

discourse on issues affecting workers in the informal economy. In order for

labour federations in Zambia to remain relevant within the context of a

changing and evolving environment, trade unions will need to improve

capacity to organise workers in the informal economy including the vulnerable

sectors and engage in evidence-based policy advocacy on a broad range of

issues affecting vulnerable workers.

The labour federations need to update and innovate the service mix that they

offer to all categories of workers (formal and informal, including workers in

most vulnerable situations) in order to retain and recruit members and

strengthen the representative capacity of the organisation. It is against this

background that this consultancy is being undertaken to provide deeper

insights on accessibility of decent work by vulnerable workers in Zambia’s

informal economy. Vulnerable employment is prevalent amongst own account REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

13

workers, domestic workers and small and medium enterprises as these

sectors are predominately devoid of workers’ rights, social protection and

decent working conditions. The overall objective of the study was to review the

working environment of informal economy workers in the vulnerable sectors in

order to establish the gaps in implementing decent work in the informal

economy and to make recommendations on the extension of decent work to

the majority of workers in the vulnerable sectors of the in the informal

economy.

3.2.2 Employment opportunities deficitsIn spite of the conducive policy framework that has resulted in positive growth

in the economy over the last fifteen years averaging between 5-6%, there has

not been an increase in the labour absorptive capacity of the economy. This is

evidenced by the high participation of the labour market in the informal sector.

The informal sector absorbs the majority of the 300,000 new entrants to the

labour market each year and is dominated by women and youth. Females

account for 57% of those employed in the informal sector. The sector is

characterised by low productivity, high levels of underemployment and

precarious work conditions. Low productivity in agriculture is a result of the

seasonal nature of production and the dependency on rain-fed crop

production, as well as the use of basic technologies. The informal sector is

also characterised by low skills and productivity. As Shah (2012) concludes,

the informal sector in Zambia would benefit from interventions designed to

augment productivity, including skills training, availability of infrastructure and

microenterprise lending facilities.3 The lack of decent jobs is reflected in the

insignificant impact that the growth has had on poverty rates, particularly in

the rural areas.

Zambia faces resource constraints that have resulted in declining investments

in the social sector, particularly in technical and vocational education and


training. The challenges to employment creation and the maintaining of labour

standards include the important size of the informal economy and the

HIV/AIDS pandemic.

3.2.3 Conclusion The stakeholders in the employment and labour sector, particularly the labour

movement have a significant role to play in creating an enabling environment

for decent work promotion by ensuring that the interests and rights of workers

are safe-guarded. Zambia, like many countries have adopted the decent work

agenda in its national development frameworks. One of the nation’s

aspirations in Vision 2030 is to create decent work opportunities that ensure

respect for fundamental human rights and principles. Towards this end,

Zambia has put in place various legislation to promote decent work. Some of

the legislation is in line with ILO Conventions that Zambia has ratified.

There are still a number of Conventions outstanding for ratification. The laws

promoting decent work include the Employment Act (286), Minimum Wage

and Conditions of Employment Act, the Employment of Young Persons and

Children’s Act, Cap 274, the Anti-Human Trafficking Act, 2008, the Factories

Act (FA) and the Mines Safety Act (MSA). Social security legislation includes

the Workers’ Compensation Act No. 10 of 2009 and the National Pension

Scheme Act (NPS Act. Freedom of association and the right to organize is

enshrined in the Constitution and the Industrial and Labour Relations Act.

Despite the existence of an enabling legal framework and concerted efforts to

adopt the decent work agenda in Zambia, it is acknowledged that there exist

challenges in realising decent work amongst the majority of workers,

particularly those in the informal economy. The study established decent work

deficits that workers in the informal sector face. These include: weak

enforcement of labour legislation; insecure and low pay; poor occupational


health and safety conditions; inadequate social protection; and weak social

dialogue. Most workers in the informal economy are excluded from rights to

freely associate and bargain collectively, social protection coverage and

access to decent employment opportunities.

The study has established that Zambia has put in place a number of

legislation to support decent work for workers in both the formal and informal

sectors. There are nevertheless decent work deficits especially in the informal

economy. There are a number of salient observations that can be concluded

about the prevailing situation in Zambia’s informal economy as it relates

particularly to decent work deficits among domestic, sub-contracted and own

account workers. These include the following:

Challenges associated with jobless economic growth: it is recognized

both in the literature and during fieldwork that Zambia’s informal

economy, just like for many other developing countries, is prevalent

because the economic growth that the country has experienced has not

yielded commensurate decent employment opportunities. This is partly

because the mining sector which is Zambia’s main economic driver has

over the years has been progressively moving towards high

mechanization and automation resulting in a steep decline in the

demand for labour. Other sectors such as construction and agriculture

equally driving the growth of the economy have also not been able to

generate significant formal sector employment.

Work formalization challenges: it is no doubt that not only does

informality of work exist in the informal economy but also in firms which

are legally or formally registered. This means the level of informality is

in two dimensions:

The key conventions yet to be ratified include the Hours of Work No 1,

Maternity Protection Convention No 183, Social Security Convention No 102,


Employment Injury Convention No 121 and the Medical Care and Sickness

Benefit Convention No 130.

Employer/institutional dimension: on one hand, most formal businesses

regard formalization of work as a cost to the business and reduces their

profit. On the other hand, most employers in the informal economy

simply perceive themselves as falling below a taxable bracket such that

once they formalized their businesses the many tax obligations would

impact on their livelihoods.

Employment relations dimension: whereas every worker in the informal

economy desires employment that would provide a decent salary and

related conditions, the cognisance that employment opportunities are

not easy to find compels them to work in the informal sector with

informal work relationships with their employers due to limited

alternatives.

Knowledge and information gaps: the informal economy is

characterized by decent work knowledge and information gaps. Despite

most informal economy workers knowing that in formal workplaces,

workers are entitled to decent work conditions, they hardly know that

the informal economy workers are equally entitled to similar conditions.

Furthermore, information and initiatives to raise awareness among the

workers (and their employers alike) about fundamental rights at work,

social protection and social dialogue are non-existent outside the formal

economy.

State and capacity of labour offices: there is a general absence of

interactions between the labour office and informal economy economic

units and workers both in urban and rural areas. In places where the

labour offices are present they often suffer from a lack of infrastructural,

low staffing levels and inadequate logistical capacity which impede their

ability to sufficiently provide labour inspection and advisory services that

would engender compliance to employment laws and regulations.


Limited social protection packages that are inclusive of workers in the

informal economy: despite the knowledge and information gap on

decent work in the informal economy, most workers desire to have

social protection packages tailored to the needs and challenges they

face. Informal economy workers have innovated their own informal

social safety nets not linked for formal structures but the type of

protection they provide is very limited. The building of national social

protection floors is still in its infancy and still unknown to many informal

economy workers who should be engaged in their design in order to

build on existing systems and networks.

The following ideas and proposals can be considered in providing a

perspective on the future of work and promoting the extension of decent work

in the informal economy; - These include ratifying and implementing ILO

conventions that promote decent work, strengthening labour legislation and

regulations in order to safeguard rights at work, raising awareness on social

protection, development of strategies that would enhance the mobilization and

extension of workers in the informal economy, and incentivize the

formalisation of work.

3.3 The Challenges Facing the World of Work and the Trends in Employment and Employment Relations in Africa: The Mauritian Experience

3.3.1 The focus of the presentation

To show the role globalisation in shaping Employment and Employment

Relations in Mauritius;


To examine the regulatory measures taken by the Government of

Mauritius to enhance workers’ rights and Employment Relations;

To look at the present trends in Employment and Employment

Relations; and

To discuss the ways the Government is planning to meet the challenges

of Employment and Employment Relations

3.3.2 Globalization and the Mauritian Economic miracle in the 1980’s – A Glimpse

In the early 1970’s, Mauritius recognized the benefits of economic openness,

implementing effective sectoral policies and build a good investment climate

by enacting the Export Processing Zone and Expansion Act 1970 Mauritius

successfully then transformed itself from an agricultural based economy at the

time of independence 1968 to an export oriented, manufactured based

economy in the mid 1980’s.The resulting effect of integration into the global

economy was that the Export Processing Zones sector accounted for more

than 60% of Mauritian gross export earnings and employed 1/3 of the

Mauritian labour force. In fact, more people worked in the EPZ sector rather

than in the agricultural sector by the end of 1980’s.

3.3.3 Legislative Measures Influencing Employment and Employment Relations between 1970 to 1993

A new Employment Law emerged in Mauritius that influenced Employment

and Employment Relations. There were two sets of Statutes. On the one hand

there was the Export Processing Zone and Expansion Act 1970, and the other

there were the Industrial Relations Act 1973 and the Labour Act 1975.The

objectives of these two sets of Statutes were different and impacted differently

on Labour Law and Employment Relations in Mauritius. Whereas the EPZ Act


applied exclusively to EPZ workers, the Industrial Relations Act and the

Labour Act applied to non EPZ workers.

The EPZ Act was essentially a compromised on already established

contractual and customary legal arrangements and was put under irresistible

pressure to reduce regulatory requirements in order to create a business-

friendly environment.

3.3.4 The Implications of EPZ Act on Employment Relations anti-union discrimination;

unwillingness to recognize bargaining agent and bargain in good faith;

non-disclosure of information;

providing unfavourable terms and conditions regarding working hours,

overtime and maternity leave;

a female employee who has had 3 confinements, if pregnant were

entitled to maternity leave but without pay; and

no overtime was paid for work which did not exceed 45 hours a week.

3.3.5 The Industrial Relations Act 1973 and the Labour Act 1975 for Non EPZ workers

Mauritius ratified the following ILO Conventions with a view to addressing

labour and Employment Relations issues regarding the non EPZ employees:

The right of association 1948 No. 87

The right to organize collectively 1949 No. 98

Prohibition of any form of Forced Labour or Compulsory Labour

1930 No. 29

Minimum Age for Employment for Children 1973 No. 138

Non-discrimination 1958 No. 100 & No.111


3.3.6 The impact of ILO Conventions ratifications on Employment and Employment Relations

The Mauritian Government was committed through the Employment Relations

Act and Labour Act:

To recognize the democratic rights of workers, trade unions and

employers in accordance with the ILO standards.

To promote freedom of association and right to collective bargaining.

To encourage voluntary settlement of labour disputes through works

councils, Industrial Relations Commissions and the Permanent

Arbitration Tribunal.

To establish the National Remuneration Board so as to regularize

minimum remuneration and terms and conditions of a particular

industry.

3.3.7 The Present Trends and Challenges facing the Mauritian Government to improve Employment and Employment Relations

In the new era of globalization present trends in Employment and Employment

Relations have shown the following phenomena that equally pose a great

challenge to the understanding and application of Employment and

Employment Law in Mauritius. These are:

Labour Force is characterized by semi-skilled and low–skilled workers

who account for 90% of employment according to the Central Statistical

Office and the Human Resource Development Council.

The labour market is facing increasing skills mismatch and a

consequent rise in unemployment despite sustained economic growth.

With free education until University level and an adult literacy of 85%,

the country has a pool of literate mass that needs to be geared towards


employability. The Mauritian Government was committed through the

Employment Relations Act and Labour Act.

To recognize the democratic rights of workers, trade unions and

employers in accordance with the ILO standards.

To promote freedom of association and right to collective bargaining.

To encourage voluntary settlement of labour disputes through works

councils, Industrial Relations Commissions and the Permanent

Arbitration Tribunal.

To establish the National Remuneration Board so as to regularize

minimum remuneration and terms and conditions of a particular

industry.

3.3.8 Proactive Legislative Measures to creating conducive Employment Relations in Mauritius

With a view to implementing the objectives of ILO’s vision of work the

Mauritian Government has enacted in recent years the following legislations

and Remuneration Orders so as to regulate employment in the EPZ and non

EPZ sectors, promote decent employment and improve work and living

conditions of men and women workers.

The Export Enterprises Remuneration Orders 1994 and the Industrial

Expansion Act 1993 can be cited as examples of Government initiatives

to regulate and keep a fair balance between Labour and capital in the

EPZ sector. However still to be noted that there is no provision of

unionization and collective bargaining. The National Remuneration

Board is the only platform created by the State as a Tripartite Institution REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

22

to discuss and negotiate for better terms and conditions in relevant

sectors.

The Occupational, Safety and Health Act 2005 addresses issues such

as Safety and Health Policy, risk assessments, serious and imminent

dangerous situations, and prohibitions regarding employment of young

persons.

The Employment Relations Act 2008 replace the Industrial Relations

Act of 1973 thus revising the law relating to trade unions, fundamental

rights of workers and employers, collective bargaining, labour disputes

and related matters setting out in a structured manner the conditions for

harmonious development of collective bargaining.

The Employment Rights Act 2008 replace the Labour Act of 1975 and

revised the law relating to Employment, Contract of Employment,

Minimum Age for Employment, Hours of Work, Payment of

Remunerations and other basic terms and conditions of employment.

The Equal Opportunities Act 2008 was enacted to ensure that every

person has an equal opportunity and no person is placed or finds

himself at a disadvantage by reason of his age, cast, colour, creed,

ethnic origin, impairment, marital status, political opinion, race, sex or

sexual orientations.

3.3.9 Strategic Plans to meet the challenges to create conducive Employment Relations in Mauritius

Mauritius has to face tremendous challenges to create employment and

provide conducive employment relations. The Government signed a

Memorandum of Understanding on 30 November 2012 with the International

Labour Organization agreeing:

To increase opportunities to decent work employment

To offer interesting work environment


To train workers for higher responsibilities

To improve social dialogue and strengthen tripartism

To promote meaningful emotional and social intelligence at work

To promote the right to dignity and fundamental freedom at work

3.3.10 ConclusionThough Mauritius has demonstrated resilience and adaptations to meet the

challenges of the world of work from the year 1970 to date, there are still on-

going challenges borne out of imperative of socio-economic conditions to

focus on organizational issues, labour conflicts and enhancement of good

human relations among employers, workers and trade unions.

Finally, in my opinion if Mauritius has to meet the challenges and the demands

of an assertive workforce it has:

To review the shortcomings in the Employment Relations Act,

Employment Rights Act and the Remuneration Orders.

To ensure strict compliance with International Labour Standards by all

social partners.

To enable all the alternative dispute resolutions mechanisms such as

the Commission for Conciliation and Mediation, the Employment

Relations Tribunal, the Industrial Court and the National Remuneration

Board to be empowered to resolve disputes effectively and without

delay.

To ensure that learning opportunities and lifelong learning are available

to everyone, generating appropriate knowledge for economic workers

and sustainable development by reviewing the Employment and

Training Ordinance of 1963, and enacting more responsible legislation

to cater for the present and long term needs for potential workers.

Finally, to implement the policies of “Maurice ile Durable” that will

promote “green jobs” and provide decent work and proper living

conditions to those involved in effective production in the work place.


3.4 Botswana’s Ipelegeng Programme as a Strategy for Employment Creation for Vulnerable Groups: A Model for Africa?

3.4.1 IntroductionUnemployment is a major cause for concern especially among the poor in

Africa. Many yearn for an opportunity to work, if given a chance, but on the

continent employment opportunities continue to be at a premium. Many

governments in Africa have found it difficult to create an environment

conducive for attracting FDI, meaning opportunities continue to be limited.

Commentators have explained that the environment has been further

poisoned by a host of other factors, including globalisation, which has seen

transnational corporations squeezing out local small business ventures, thus

throwing many employees into the streets. To add to the woes, education

institutions on the continent continue to churn out thousands graduates whose

prospects for employment are virtually zero, thus in the process swelling the

figures of the unemployed. Many governments on the continent seem to be at

a loss as to how this challenge can be tackled. However, a few governments

on the continent have come up with innovative strategies for employment

creation, which include promotion of a novel version of public works

programmes. The Government of Botswana has over the years promoted an

initiative called the Ipelegeng Programme.

3.4.2 Rate of Unemployment in Botswana.For most of the 1990s, and early 2000s, unemployment in Botswana was

estimated at between 20 and 23%, after which it fell to 17.6 around 2005.

Statistics Botswana (2011) reported that as at 2011 the average

unemployment rate stood at 17.8%, which translated to 126, 349 unemployed

persons, out of a labour force of 710, 600, and a national population of 2.1

million people. At that time female unemployment stood at 21.4% compared to


14.5% for their male counterparts. Generally, unemployment rates were

higher in rural areas and also for women. Thus, unemployment has indeed

been an issue of considerable concern in the case of Botswana. Hence the

government had to do something about this issue of national concern. That

saw the launching of the Ipelegeng Programme. The Ipelegeng Programme

has seen many unemployed people getting an opportunity to work and receive

a wage. This paper considers the role that Botswana’s Ipelegeng programme

has played in employment generation in Botswana, and the contribution that

this initiative has made towards social protection in the country.

3.4.3 The Concept of IpelegengThe term Ipelegeng is vernacular and its literal translation means “carry your

own weight’, suggesting the cherished notion of self-reliance. In the 1960s and

1970s, the initiative operated as a food for work programme which mostly

focused on drought relief. Apparently, the programme in its present format

was ‘launched’ in 2008 through a directive from the Office of the President

(CAB 19 (A) /2008). The directive indicated that henceforth the initiative would

become a permanent, continuous Labour Intensive Public Works programme

(NDP 10 2009 – 2016). Suffice it to mention that the directive concerned did

not alter the original format; on the contrary it simply expanded the mandate

and structure with respect to resource allocation (Nthomang, 2018).

In 1982, wage payments were introduced for the first time, and this made the

Ipelegeng programme more attractive and respectable, although, according to

observers, this move also helped in terms of reducing food storage costs for

the drought relief programme (Nthomang, 2018). The Ipelegeng programme

sought to create employment, improve incomes and quality of life of

vulnerable groups both in rural and urban areas of Botswana. According to

BIDPA (1997) the initiative was meant to provide only short-term employment

support and relief, while at the same time promoting development projects in


the communities. BIDPA (1997) further explained that the wages in this

programme were set to be low enough to be able to increase job opportunities

for a majority. The low wages also helped minimise potential conflict with

agricultural activities and employment.

3.4.4. Implementation of IpelegengThis nationwide government sponsored programme targets unskilled and

semi-skilled labour, and it is envisaged as a source of supplementary income

(Mupedziswa and Ntseane 2012; 2013). The Ministry of Local Government

Development Planning and Community Development has responsibility for

rolling out of this programme, with local level implementation being left to local

authorities, namely rural district and urban councils. Applications for

employment are launched through Village Development Committees (VDC)

in the case of rural areas and Ward Development Committees (WDC) in the

case of urban areas.

Activities include carrying out essential development work such as collecting

of litter, cleaning streets, cutting of grass, carrying out minor construction

work, clearing of fields, maintenance of drift fences, community policing,

maintenance of buildings and secondary roads (Mupedziswa and Ntseane,

2012; 2013). According to the Ministry of Local Government (2010) an

estimated 19431 people benefitted from the programme in 2010, compared to

14 363 in 2008. At the time the wage rates were pegged at P18/day for casual

labourers and P24/day for their supervisors. It should be noted that since

2012/13 beneficiaries now receive a meal at a cost of P5 per day, and this

seems to work as some kind of incentive. This also ensures workers have

energy to work.

According to Nthomang (2018) records show that as at May 2013 some 56

274 people, 71% of which were female, were working on the Ipelegeng

programme across the country. During that period beneficiaries were earning

P 480 (approx. $45) per month. To this should be added P100 (i.e. the P5 per


meal for food), making a total wage of P580 per month. Resources for the

Ipelegeng programme are allocated, not by district but based on the size of

the Parliamentary Constituency. At the time of writing, the country had a total

of 57 Parliamentary constituencies, and each of the constituencies received a

determined monthly (money) disbursement from the Ministry of Local

Government.

3.4.5 Challenges facedImplementation of the Ipelegeng Programme has not been without its fair

share of challenges. It has been argued that coverage has been rather limited,

essentially due to resource scarcity. Botswana’s resource base, despite the

country’s upper middle-income status, is limited. While expenditure for the

programme rose from P301 million in 2011/12 to P409 million in 2012/13, the

amount still fell short of demand. In several constituencies demand has

consistently far outstripped available resources, with some officials being

forced to resort to employing the lottery system in the selection process

(Nthomang, 2018). By some accounts the programme has benefitted between

50 000 and 56 000 aged 18 – 64 years (per month) over the years. This is

against a figure of over 300 000 very poor people across the country. Concern

has also been expressed to the effect that in some cases the deserving poor

have not benefited as they have fallen through the cracks due to

implementation challenges which include poor targeting. Some actually say

the better off have benefitted at the expense of the poorest of the poor (WB &

BIDPA, 2013).

3.4.6 ConclusionDespite these challenges, the programme has benefitted many among the

vulnerable in Botswana. Ordinary people appreciate being able to earn an

income, though small. Some have used the earnings (as start-up capital) to

start more viable income generating projects. The paper argues that while the


programme has a number of short comings; its positives far out-weigh its

negatives, meaning it has helped change people’s lives. For this reason, the

Ipelegeng Programme initiative in Botswana can arguably serve as a model

for the continent of Africa.

3.5 Recent Developments in Bargaining Structure and Outcomes in Korea

1. IntroductionMany are familiar with the outlines of Korean labour unionism: enterprise-

basis, militancy, and frequent strikes and protests. While some claim that

enterprise unionism is weaker and more dependent on management than

industrial, craft, or general unions (Galenson & Odaka, 1976; Hyman, 1975),

Korean unions achieved high wage growth rates in the 1990s after the Great

Labour Offensive period. Yet Korean unionism has begun to evolve in the new

millennium. One such change has been the move to industry-affiliated unions,

a move driven by the Korean Confederation of Trade Unions (KCTU).

Regardless of such structural changes, union density has declined along with

the frequency of strikes, the number of non-affiliated unions has risen, and

wage growth has been stymied. What has happened to Korean unionism

during this period of reversal? To examine this question, I will investigate

recent developments in bargaining structure and bargaining outcomes.

2. Diversification in Union and Bargaining Structures Union StructureThe Korean industrial relations were characterized by enterprise unions, but

recently they are much more diversified by transformation of some unions to

industrial unions. The impetus for the transformation has been given by new

unionism emerged since the Great Labour Offensive in late 1980s revitalized

the Korean labour movement. The new unionism established the Korean


Confederation of Trade Unions, the national centre for the new and

independent unionism, in 1995.

Prior to 2000, enterprise unionism was prevalent in Korea, and earlier even

the new unionism did not attempt to organize industrial unions. A probable

reason is because workers were more easily organized on enterprise basis at

the time. Employment terms and conditions are determined at the firm level

and cross-sectional labour markets were under-developed due to low labour

mobility in Korea. Workers had been also forced by labour law to form unions

at firm level,

and there were no or very weak legacy of industrial unionism. Especially,

labour law prohibited the intervention of any third party including industrial and

national federation of labour unions of in collective bargaining and labour

disputes within a firm. Many union activists were discharged by employers,

and the proliferation of labour unions and strikes in the late 1980s could be

organized basically due to the political liberalization. Thus, the labour

movement at that time did not have enough power to organize workers and

win bargaining along industries. Enterprise unionism might be a good strategic

choice, given the relatively weak bargaining powers of labour at that time.

Industrial unionism requires adequate rates of union density to get into

collective bargaining at industrial level, which was a very difficult to achieve at

the time. In order to mobilize the rank and file workers, unions first need to

gain economic benefits right away, and thus they have little options but to

have collective negotiation at firm levels to win some

economic benefits for the workers as a catalyst for unionization.

With its higher density and also more challenges from employers and

government, however, the new unionism moved toward industrial unionism in

1990s. Right after their growth rate was slow down in the early 1990s, the

need for industrial unions was raised by some of the new union activists. At

the time a couple of industrial unions such as National Teachers’ Union and REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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National Research & Development Workers’ Union were organized, and some

new unions started to coordinate bargaining activities such as synchronized

strikes and/or coordinated demand for wage increase rate. The decisive

turning point for the industrial unionism was the establishment of the Korean

Confederation of Trade Unions, which had proclaimed the industrial unionism

as one of its principles at its onset in 1995. Since the proclamation was a

result of prior discussions and endeavours, it implies that the industrial

unionism had been prepared much earlier by union activists leading the new

unionism.

Another driving force was the Asian financial crisis, which posed various

challenges to the new unionism. The crisis raised many new issues like

redundancy, restructuring, and plant relocation, which were too complicated

and complex to be solved by enterprise unions. Especially, the rapidly growing

externalization of employment and labour market polarization as its

consequence was a serious threat to the militant unionism, because the

divided labour would undermine the ground for mobilization of the working

class. The threats and challenges helped substantiate and materialize the

proclamation.

Being influenced by the campaign and the environmental changes, the new

unionism transformed its union structure to industrial unions widely one after

another. The Korean Health and Medical Workers’ Union was the first mover,

organizing itself in 1998, and subsequently the National Union of Media

Workers was organized in 2000, which were followed by the Korean Metal

Workers’ Union in 2001. The Korean Metal Workers’ Union was initially

organized by small unions and joined by large labour unions like Hyundai

Automaker Union and Kia Automaker Union in 2007. KCTU also witnessed

Korean Public Service Workers’ Union in 2006, Korean Chemical and Textile

Workers’ Union in 2004, Korean Construction Workers’ Union in 2007, and

Korean Public, Transportation, and Social Service Workers’ Union in 2011. REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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However, there are some exceptions which are not yet transformed to

industrial unions like Office and Financial Workers’ Unions, and Service

Workers’ Unions. According to the KCTU homepage (www.nodong.org), about

80% of the union members were organized by industrial unions as in 2012.

On the other hand, most of the labour unions affiliated with the Korean

Federation of Trade Unions, the national centre for the old unionism, still are

enterprise-based. There are several exceptions in KFTU, too. The most

notable is the Korean Financial Industry Unions, which has well-established

industrial bargaining since 2000 when the labour unions were reorganized

along the industrial line. Taxi drivers has also organized an industrial union

and bus drivers also organize multiple industrial unions at local levels, but

more flexibly both of them allow for enterprise unions. The three unions have

legacies of long-time endeavours for industrial bargaining.

Besides, there were large national unions corresponding to large firms like

Korean Postal Workers’ Union Korean and Tobacco and Ginseng Workers’

Union, which can be classified as either enterprise-based or industrial unions.

There were other failed drives to build up industrial unions in KFTU, too. The

metal workers and chemical workers attempted to transform their union

structures to industrial unions in 2000s but failed to do mainly due to the

strong opposition of their large unions. As the consequence of the drives for

industrial unionism, the rate of industrial union members seemed to be a

majority. Noh, Noh, and Jin (2013) estimated, based on the statistics on

national labour union density by Ministry of Employment and Labour, that the

rate was already 55.2% as in 2012. KFTTU-affiliated industrial unions have

226 thousand workers, KCTU-affiliated ones have 484 thousand workers, and

independent industrial unions have 117 thousand workers.

3. Concluding Remarks


This study examined the recent developments in collective bargaining in

Korea with respect to union structure, bargaining structure and bargaining

outcomes, relating them with the changes in the militant unionism. We

focused on the recent decade posterior to the Asian financial crisis due to the

limited reliable relevant data and studies. The militant unionism emerged

though the repression of the authoritative administration and management in

the late 1980s and the militant unionism was quite effective as a protector for

the workers’ interests in the 1990s. However, a challenge to the new unionism

was posed by the Asian financial crisis. Arose new issues such as redundancy

and restructuring, which were too difficult for enterprise unions to respond to,

and the militant labour unions tried to resist to the lower employment security

by strikes.

On the other hand, the employer side also found it very difficult to lay-off their

employees. Wittingly or unwittingly, labour and management compromised to

use the contingent workers and outsourcing as alternative means to

organizational flexibility and labour cost savings. By the externalization of

employment, labour unions gained wage and employment for their members

in the early 2000s, but it produced labour market polarization which weakened

the effect of strikes and thus the bargaining power of the labour unions. Many

big strikes were organized by the militant unions in the middle of 2000s, some

of the important strikes were defeated. After the strikes defeated, the

bargaining power of the militant unions were gradually weakened even further,

and the employee performances were gradually declining over the time.

As a response to the environmental changes created by the Asian financial

crisis and the prior union activities, the militant unions transformed their union

structures to industrial unions. The ratios of industrial unions in terms of union

members has already gotten higher than 50% in 2010s, and also about 30-

40% of the unionized firms were engaged in a multi-employer bargaining.


The multi-employer bargaining started, based on the inter-firm wage

differentials created before by enterprise unionism, the multi-employer

bargaining allowed for wage drifts through supplementary bargaining at firm

level. However, this study pointed out that many branch unions were not much

deviated from the standard increase rate. The multi-employer bargaining has

negotiated wages more often for the contingent workers, and discuss the

more

general and common issues for all the workers in the pertinent firms. Still they

have not succeeded in narrowing inter-firm wage gaps. Furthermore, some

employers, mainly large firms, have resisted to join the multi-employer

bargaining, and thus the multi-employer bargaining has not been stabilized

yet.

SUB-THEME 2: GENDER AND WORK

4.1 WORKPLACE GENDER EQUALITY IN THE DRC: A CRITICAL ANALYSIS OF EXISTING LEGISLATION

IntroductionThis paper seeks to critically analyse the different legal, policy and institutional

frameworks aimed at achieving gender equality in the workplace in the

Democratic Republic of Congo (DRC). The objective of such a research study

is to determine whether or not the country complies fully and in good faith with

its international obligation to promote gender equality in the workplace. To this

end, the paper focuses on four key specific areas related to workplace gender

equality: definition of workplace gender equality (1); the principle of equality

and prohibition of discrimination in the workplace (2); women’s work regime

(3); Sexual harassment in the workplace (4); and institutional mechanisms

aimed at achieving gender equality (5).


Section 1. Definition of workplace gender equalityThe definition of workplace gender equality is articulated in the various

international, regional and sub-regional instruments and embodies the three

principles of equality, namely non-discrimination, state obligations and

substantive equality. In this respect, the Convention on the Elimination of All

Forms of Discrimination against Women (CEDAW) refers to elimination of

discrimination against women in the field of employment for the purpose of

ensuring, on a basis of equality of men and women, the same rights. These

include the right to work; the right to the same employment opportunities; the

right to free choice of profession and employment; the right to promotion, job

security and all benefits and conditions of service and the right to receive

vocational training and retraining; the right to equal remuneration, including

benefits, and to equal treatment in respect of work of equal value, as well as

equality of treatment in the evaluation of the quality of work; the right to social

security, particularly in cases of retirement, unemployment, sickness, invalidity

and old age and other incapacity to work, as well as the right to paid leave; the

right to protection of health and to safety in working conditions, including the

safeguarding of the function of reproduction.

In addition, in order to prevent discrimination against women on the grounds

of marriage or maternity and to ensure their effective right to work, the

CEDAW prohibits, subject to the imposition of sanctions, dismissal on the

grounds of pregnancy or of maternity leave and discrimination in dismissals on

the basis of marital status. It introduces maternity leave with pay or with

comparable social benefits without loss of former employment, seniority or

social allowances. It also provides for the necessary supporting social

services to enable parents to combine family obligations with work

responsibilities and participation in public life, in particular through promoting

the establishment and Gender equality in a global perspective. Development


of a network of child-care facilities. Lastly, it provides for special protection to

women during pregnancy in types of work proved to be harmful to them.

In terms of regional mechanisms, the Protocol to the African Charter on

Human and Peoples’ Rights on the Rights of Women in Africa (The Maputo

Protocol) guarantees women equal opportunities in work and career

advancement and other economic opportunities. In this respect, the Maputo

Protocol calls for promotion of equality of access to employment; promotion of

the right to equal remuneration for jobs of equal value for women and men;

and transparency in recruitment, promotion and dismissal of women and

combat and punish sexual harassment in the workplace. In addition, the

Maputo Protocol guarantees women the freedom to choose their occupation

and protects them from exploitation by their employers violating and exploiting

their fundamental rights. It also creates conditions to promote and support the

occupations and economic activities of women, in particular, within the

informal sector, while establishing a system of protection and social insurance

for women working in the informal sector and sensitising them to adhere to it.

It guarantees adequate and paid pre and post-natal maternity leave in both

the private and public sectors. It recognises and enforces the right of salaried

women to the same allowances and entitlements as those granted to salaried

men for their spouses and children.

As regards the sub-regional mechanisms, the SADC Protocol on Gender and

Development does not define the term ‘workplace gender equality’, but

provides

definition of related terms. Under Article 1, paragraph 2, this Protocol defines

the term ‘gender equality’ as ‘the equal enjoyment of rights and the access to

opportunities and outcomes, including resources, by women, men, girls’ and

boys’. In this same provision, the term ‘gender equity’ is defined as ‘the just

and fair distribution of benefits, rewards and opportunities between women,

men, girls’ and boys’. The term ‘gender mainstreaming’ is defined as ‘the REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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process of identifying gender gaps and making women’s, men’s, girls’ and

boys’ concerns and experiences integral to the design, implementation,

monitoring and evaluation of policies and programmes in all spheres so that

they benefit equally’. Lastly, the Protocol defines the term ‘gender sensitive’ as

acknowledging and taking into account the specific gender needs of both men

and women at all levels of planning, implementation, monitoring and

evaluation’.

Under DRC law, despite the fact that the term ‘workplace gender equality’ is

not specifically defined, Act No. 15/013 of 1 August 2015 laying down detailed

rules for the fulfilment of women’s rights and gender equality provides a

definition of related terms, in the same way as the SADC Protocol referred to

above. The term ‘gender equality’ is defined as a state of being equal in terms

of enjoyment of rights and access to opportunities and outcomes, including

resources, by women, men, girls and boys. The term ‘gender equity is defined

as just and fair distribution of benefits, rewards and opportunities between

women, men, girls and boys. The term ‘gender parity is defined as functional

equality that consists of equal representation between men and women in

accessing decision-making bodies at all levels and in all areas of national life,

without discrimination apart from the principle of the number, it also mentions

conditions, positions and placings. It is clear from the above definition that

workplace gender equality mainly focuses on giving women and men access

to equal opportunities so that they may enjoy the same rewards and resources

regardless of gender. In other words, these legal provisions enshrine the

principle of equality and the prohibition on discrimination on grounds of a

person’s gender.

Section 2: The principle of equality and prohibition of discrimination in the workplace


Legal doctrine considers that ‘the principles of equality and non-discrimination

can be regarded as the twin pillars upon which the whole edifice of the

modern international law of human rights is established’. These principles are

guaranteed by several international, regional and sub-regional instruments

relating to specific areas of human rights, as well as ILO Conventions, which

have been duly ratified by the DRC.

The DRC has also ratified ILO Equal Remuneration Convention, 1951 (No.

100) on 16 June 1969, as well as ILO Discrimination (Employment and

Occupation) Convention, 1958 (No. 111) on 20 June 2001. But, the country

has not yet ratified Workers with Family Responsibilities Convention (No. 156)

and Maternity Protection Convention (No. 183). Most of these instruments,

including the SADC Protocol on Gender and Development, give women and

men equal access to wage employment in all sectors of the economy. This

involves equal pay for equal work and equal remuneration for jobs of equal

value for women and men; the eradication of occupational segregation and all

forms of employment discrimination; as well as equal employment benefits.

Under DRC national law, several pieces of legislation in force ensure the

principle of non-discrimination and equal treatment in the workplace on the

basis of the constitutional provisions, which enshrine the principle of equality.

Indeed, the Constitution of 18 February 2006, as amended and supplemented

to date enshrines the principles of equality and non-discrimination.20 More

specifically, the Constitution enshrines, under Articles 12 and 14, the

principles of equal rights, opportunity and sex. And, under Article 13, the

Constitution provides for free access of women to professional activities while

excluding discriminatory measures in this area.

Under the provisions of Article 36, paragraph 3, the Constitution provides that

‘no one may be harmed in their work because of their origin, sex, opinions,

beliefs or socio-economic conditions’. This constitution provision further

stipulates that all Congolese have the right and the duty to contribute through REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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their work to the national construction and prosperity. It is therefore forbidden

to harm any Congolese citizen in his/ her work, particularly because of his/ her

gender. In addition, based on Article 14 of the Constitution, Act No. 15/013 of

1 August 2015 laying down detailed rules for the fulfilment of women’s rights

and gender equality sets out terms and conditions for the fulfilment of

women’s rights and gender equality.

Under Article 20, Act No. 15/013 of 1 August 2015 prohibits any discrimination

in employment on the basis of sex, particularly based on a worker’s marital

status, family situation or with regard to women, on their pregnancy status.

Prohibition of this form of discrimination shall apply to any harmful practice

related, in particular, to hiring, assignments, conditions of employment, pay

and other benefits, promotion and termination of the employment contract.

The State encourages, through incentive measures, employers hiring women

to remedy existing inequalities and adopting policies to better reconcile family

and professional responsibilities such as flexible and variable working hours,

full-time and part-time employment, other work and social security conditions.

Thus, the labour Code as amended and supplemented to date proclaims the

principle of equality and non-discrimination as regards the scope of the labour

laws, the definition of a worker and the determination of wages. In addition,

under Article 62, the Labour code provides that sex, marital status, family

responsibilities, pregnancy, childbirth and its consequences shall not

constitute a fair, just or reasonable ground for dismissal or termination of

employment.

However, the Labour Code as amended and supplemented to date does not

expressly define discrimination in the workplace, but contains provisions

relating to the principle of non-discrimination. Under the provisions of Article

128, paragraph 2, the labour Code considers that maternity should never be a

source of discrimination in the area of employment. This provision further

prohibits employers from requesting a pregnancy test or a certificate attesting REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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or not the state of pregnancy of a prospective female employee prior to

extending an offer of employment. However, the requirement of such a

pregnancy test or a certificate should be limited to work that is totally or

partially prohibited for pregnant women, nursing mothers or to work involving a

known or significant risk to the health of the woman or child. In the same vein,

Act No. 15/013 of 1 August 2015 laying down detailed rules for the fulfilment

of women’s rights and gender equality prohibits employers from discriminating

against workers on grounds of gender, based in particular on marital status

and family situation or regarding women, based on their pregnancy.

Furthermore, Act No. 13/013 of 1 June 2013 pertaining to the status of

national Police career personnel prohibits, under Article 19, any discrimination

between candidates on the grounds of their gender, etc. Similarly, Act No.

13/005 of 15 January 2013 pertaining to the status of members of the DRC’s

Armed Forces prohibits the taking of discriminatory measures within the

armed forces on the basis of specific grounds, including gender.

It is worth noting that the prohibition of discrimination in the workplace shall

apply to any harmful practices related in particular to hiring, assignment of

duties, working conditions, remuneration and other employment benefits,

promotion as well as termination of the employment contract. In terms of

social security, all workers governed by the provisions of the labour Code

shall, without distinction of gender, be covered by the compulsory social

security scheme established by institutional legislative Decree of 29 June

1961 pertaining to social security. However, the law requires that these

employees be employed, primarily, in the DRC on behalf of one or several

employers, notwithstanding the nature, form, validity of the contract, the

nature and amount of wages.

Section 3. Women’s work regimeThe Congolese legislator has enacted rules that define women’s work regime.

These two schemes take into account their physical constitution, sensitivity, REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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responsiveness and reactions. Female employees’ work regime is determined

by Articles 128 to 132 of the Labour Code on the one hand, and by Articles 4

to 23 of Ministerial Order No. 68/13 of 17 May 1968 determining the conditions

of work of women and children, on the other hand. It includes working time as

well as types of work authorised and unauthorised for women.

The DRC has made satisfactory progress towards enacting and implementing

legislation to ensure gender equality in female workforce participation. In order

to address the issue relating to workplace gender equality in the DRC, this

critical analysis focuses, on the one hand, on the husband’s authorisation

before entering into an employment contract (1), which regarded as gender-

based discrimination and, on the other hand, the prohibition of women from

carrying out work that exceed their strength, and work that is hazardous or

unhealthy (2).

In fact, the DRC national legislation contained certain provisions, which

contravened the principle of non-discrimination in the workplace. For instance,

the old labour legislation, i.e. Legislative Order No. 67/310 of 9 August 1967

pertaining to the Labour Code, had enshrined the principles of marital

opposition and inability of married women to enter into employment contracts.

Under Article 3 (c) of the old Labour Code, a married woman could validly

enter into an employment contract, unless the husband expressly opposed it.

In addition, Act No. 81/003 of 17 July 1981 governing the status of career

members of the State public services contains a specific provision, which is

clearly discriminatory against married women. Pursuant to the provisions of

Article 8, paragraph 8 of this Act, a married woman shall not, without prior

written authorisation of her husband, be recruited as career member of the

State public services to perform public service duties. This provision confirmed

the legal incapacity of the married woman enshrined in Articles 448 et seq. of

the Family Code of 1987. Under the provisions of Article 448 in particular, the

1987 Family Code required a married woman to obtain her husband’s

permission for all legal acts in which she incurs a personal obligation. REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

41

However, these discriminatory provisions are now repealed by new provisions,

which suppress entirely marital authorisation for married women.

written authorisation is no longer required for a married woman to be recruited

as career member of the State public services to perform public service

duties.

Unfortunately, despite this development in the right direction, the 2002 Labour

Code implicitly introduced the system of marital authorisation prior to entry into

an employment contract. Such is the meaning to be given to Article 6,

paragraph 1 of the 2002 Labour Code, which provides: ‘A person’s ability to

offer his or her services shall be governed by the law of his or her country, or if

the nationality is unknown, by DRC law.’ In the DRC, such ability was

regulated by Act No. 87/010 of 1 August 1987 pertaining to the Family Code,

which provides, under article 448, that ‘a woman must obtain the permission

of her husband on all legal deeds, which require her to provide a service that

must be given in person’. It is clear from the combination of Articles 6 of the

2002 Labour Code and 448 of the 1987 Family Code that Congolese women

needed their husbands’ permission before entering into an employment

contract. Without such permission, the employment contract was supposed to

be declared void.

Now, it appears that the issue of the married woman’s ability to enter into an

employment contract belongs to the past. Not only was Article 448 of the old

Family Code unconstitutional, but it also put the DRC in conflict with numerous

international commitments on human rights, in particular with the International

Covenant on Civil and Political Rights (ICCPR), the African Charter on Human

and Peoples’ Rights (the Banjul Charter), and the CEDAW. As mentioned

above, all these international instruments explicitly or implicitly prohibit all

forms of discrimination against women, including married women. Clearly, this

refers to the DRC State’s obligations in connection with civil and political rights

as well as economic, social and cultural rights under international human


rights treaties, which must take precedence over any national provisions that

would conflict with them.

In addition, Article 1 paragraph of the Labour Code as amended and

supplemented to date, provides that all provisions thereof shall be applicable

to all workers and to all employers, regardless of gender, civil status, etc.

Therefore, the Labour Code’s provisions shall automatically apply equally to

men and women, and to all women, whether married or not. Moreover, a

person’s ability referred to under Article 6 paragraph 1 of the Labour Code, is

seen today as regulated by the DRC specific labour law, i.e. the labour Code,

which provides, under Article 6, paragraph 2, that a person who has attained

the age of 18 years shall have legal capacity to enter into any employment

contract. Therefore, whether married, divorced, widowed or single, an 18-

year-old Congolese woman may freely enter into an employment contract. To

this effect, no husband’s authorisation or opposition is required.

Unlike a doctrine that considers that the Family Code, specifically Article 448,

is the law applicable to married women’s ability in labour-related matters, a

more recent doctrine asserts that it is rather the Labour Code that shall be

applicable as a specific law in labour-related matters in the DRC. This theory

is based on the Latin maxim, ‘Specialia generalibus derogant’ (‘The specific

derogates from the general’). This maxim means that where there is a conflict

between a general provision or rule and a specific one, the latter must prevail

over the former. It is worth noting that the specific provision or rule is

considered an exception to or special application of the general provision or

rule.

Indeed, under the principle of specificity, where the Labour Code imposes, by

way of a formal provision, a solution that is in conflict with that of the Civil

Code, the latter must be ruled out. Admittedly, in practice, it is observed that

married women’s freedom to enter into employment contracts is effectively

exercised only with the consent, even tacit, of their husband. The REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

43

stubbornness of the woman facing her husband’s opposition may cause

misunderstandings that can lead to family arguments or even family breakups.

Therefore, some employers are wrong to insist on requiring the husband’s

authorisation of female jobseekers when they declare themselves to be

married persons. Moreover, it is unlawful for an employer to take pregnancy

into account in refusing to employ a woman and seek to determine whether an

applicant is pregnant. Similarly, women cannot be required to reveal the fact

that they are pregnant, whether they apply for a job or are employed in one.

The Labour code as amended and supplemented to date provides, under

Article 62, that sex, marital status, family responsibilities, pregnancy, childbirth

and its consequences shall not constitute a fair, just or reasonable ground for

dismissal or termination of employment. The Kisangani and Matadi Courts of

Appeal upheld this Labour Code provision respectively in cases of Bitwisila

versus Bambino School and Zaïre Gulf Oil and PHI versus Ngandu.

The Labour Code and some regulatory texts contain protective standards for

working women that seem to be contrary to the principle of equal treatment of

men and women enshrined in domestic legal instruments and international

conventions duly ratified by the DRC. Indeed, under Article 128 of the Labour

Code, some types of work are prohibited for women by way of a ministerial

order, issued following an opinion issued by the National Labour Council.

Thus, ministerial No. 68/13 of 17 May 1968 prohibits any employer from

employing women in work exceeding their strength, exposing them to high

occupational risks. To this end, under Article 18 of the Ministerial Order No.

68/13 of 17 May 1968, women are prohibited from being assigned to regular

manual transport of loads.

The prohibition imposed on women to perform work exceeding their strength,

and hazardous or dangerous or unhealthy work, undeniably undermines the

principle of equal treatment between women and men. Such prohibition shall

be regarded as discriminatory and in breach of Article 12 of the Constitution REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

44

proclaiming equality of all citizens before the law. It is for this reason that

many respected legal scholars call for the principle prohibiting women from

performing certain jobs to be repealed as unconstitutional and non-compliant

with international instruments ratified by the DRC. In fact, an equal opportunity

should be given to job seekers because any exclusion made on the basis of

sex nullifies or impairs equality of opportunity or treatment in employment or

occupation.

Under DRC law, women are only eligible for light, safe and non-hazardous

jobs that may be carried out during the day or at night. It is worth noting that

Act No. 16/010 of 15 July 2016 amending and supplementing the 2002 labour

Code brings important innovations in terms of women’s access to professional

activities. Such innovations include the possibility for women to perform night

work, as well as the possibility for pregnant women to suspend their

employment contract without this being considered as a cause for termination.

Unlike the old Article 125, the new amended provision of Article 125 of the

labour Code allows women to perform night work in public or private industrial

units. Thus, the provision of Article 13 of Ministerial Order No. 68/13 of 17 May

1968 determining the conditions of work of women and children, which

prohibits women, regardless of age, from performing night work in industrial

production units shall become null and void. If men are allowed to work at

night for an extra pay, the same goes for women, as they are no longer

prohibited from being employed during the night in any industrial undertaking.

ILO Night Work (Women) Convention (Revised), 1948 (No. 89), as duly

ratified by the DRC since 20 September 1960 and which prohibits night work

for women, should therefore be amended. The concept of night itself is

defined differently by the current DRC labour law depending on whether it

applies to men or women. For men, night refers to the period of time between

7 p.m. and 5 a.m. and for women it is defined as the period of time between 6

p.m. and 6 a.m.REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

45

While the actual working hours of female employees are the same as those of

their male counterparts, it shall, however, be accompanied with one or more

interruptions of at least one hour of rest if it exceeds 4 hours of actual work

per day. This rule is not applicable in many companies. In addition, for female

employees, working in excess of statutory working time is limited to one hour

per day, resulting in their working hours not exceeding 9 hours per day.

Women employed in domestic work may, however, work 54 hours a week.

This shall be regarded as time of attendance amounting to statutory working

time and paid on the basis of 8 hours of actual work per day. Such is the

reason why this time is referred to as the working-time equivalency. This

regime is open to criticism in the sense that it discriminates against women

employed in domestic work. It is unfair and must be abolished. Besides, it is

wrong for women employed in domestic work to be regarded as contract

workers. On the other hand, a woman who nurses her child shall be entitled,

in all cases, to two special rest periods a day, of half an hour each, to enable

her to nurse her child. These rest periods shall be paid as working time.

Lastly, the labour Code gives any pregnant woman with her condition

medically confirmed, the right to terminate her employment contract, without

prior notice and, by virtue of her condition, will not be required to pay any

compensation for contract termination.

Section 4. Sexual harassment in the workplaceIt is acknowledged that gender inequality is evident in sexual harassment and

bullying, all-too-common experiences in many workplaces. Sexual harassment

at work is, indeed, another serious problem and important legal issue

particularly affecting working women in the DRC. The Ministry of Labour

acknowledges, in its explanatory note, that sexual harassment is one of the

evils that have taken up residence in the work environment in the DRC.


According to a study conducted by the Ministry of Health with fifteen public

and private companies in the city of Kinshasa from 13 to 17 September 2010,

64 per cent of women have experienced sexual harassment in the workplace.

It is argued that sexual harassment is regarded as a form of sex discrimination

prohibited under existing laws. The 2002 Labour Code provides, under Article

73, that any act of sexual harassment committed by the employer or his/ her

agent towards an employee in the workplace shall be regarded as gross

misconduct justifying termination of the employment contract by the employee.

Under these circumstances, the employer shall be ordered to pay out

damages to the employee. Similarly, under Article 74 of the 2002 Labour

Code, any act of sexual harassment committed by the employee towards the

employer or his/ her staff shall be regarded as gross misconduct justifying

termination of the employment contract by the employer. In this case, the

employer may claim compensation from the worker for the harm directly

caused by the worker’s gross misconduct. Ministerial Order No.

12/CAB.MIN/TPS/114/2005 of 26 October 2005 prohibits any act constituting

sexual or moral harassment in labour relations, particularly in terms of

learning, hiring, compensation, training, assignment, transfer, termination or

renewal of the contract.

Under Article 4, Ministerial Order No. 12/CAB.MIN/TPS/114/2005 gives

anyone that is the victim of sexual or moral harassment the right to terminate

their contract for gross misconduct at expense of the other party. Despite the

fact that the relevant case law does not specifically refer to sexual harassment

in the workplace, it has, nevertheless, been held that acts of wickedness or

lack of integrity must be regarded as gross misconduct and may, as such,

legitimise termination of the contract that binds the parties. Moreover, it has

been held that gross misconduct is a single act of misconduct, which, after it

has been committed by one of the parties, may provoke unsustainable and

harmful psychological situation between parties rendering the continuation of

contractual and / or professional relations morally impossible.REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

47

The DRC labour law considers gross misconduct as any fact or fault that

immediately and definitively renders the continuation of the labour relationship

impossible. It involves such a deterioration or termination of the relationship

between the parties that maintenance of the employment or contractual

relationship is rendered impossible even for the duration of the notice.

It has been held that an employer who alleges the worker’s gross misconduct

in order to terminate the employment contract must provide proof thereof.

Failing this, such termination of the contract would be unfair. It goes without

saying that sexual or moral harassment or bullying will be proved by any legal

means. However, if bullying can be easily proven, in particular, by comments

from the employer and other doings and actions, possibly in front of

witnesses, the same would not apply for sexual or moral harassment. In some

jurisdictions, proceedings involving sexual harassment are always held in

camera. This might present a real challenge given that sexual harassment

rarely presents clear physical evidence and the only proof could be the word

of the alleged victim against the word of the alleged perpetrator. The law

provides no clear indication of the ways and means of proving cases of sexual

or moral harassment.

ConclusionIn the DRC, despite progressive labour legislation and policy prohibiting

gender discrimination in the workplace, as described in this paper, the gap is

still prevalent in the workforce. Many women continue to face discrimination in

all employment practices and terms and conditions of employment, including

hiring, wages, promotion, training opportunities, benefits as well as job

conditions. In addition, women continue to experience sexual harassment at

the workplace, whether in physical, verbal or non-verbal way or other ways

based on sex affecting their dignity. This reflects gender inequalities, which is


mainly due to women’s subordinate status in such a male-dominated society

and has a negative impact on women's participation in the labour market.

4.2 Naming and Shaming as an Effective Tool to Curbing Sexual Harassment in Public Institutions: The Malawian Experience

AbstractThis paper shares stories of three courageous Malawian women who

pioneered the concept of, ‘naming and shaming’ to curb sexual harassment.

Their stories are published in the Malawi Labour Law Reports, available to

members of the general public. They form a big part of the Malawi

Jurisprudence on gender and work. These women took senior officers in the

office of the Ombudsman, the Malawi Electoral Commission and the Malawi

Stork Exchange, to the Industrial Relations Court at a time when it had just

opened its doors. They defied societal expectations on how women should be

treated in the workplace. Their boldness has liberated women and opened

doors for them to seek redress. The public exposure has, among other

advantages, acted as a deterrent factor to potential perpetrators.

Background to Concept of Naming and ShamingThe Malawi legal system does not recognize the concept of naming and

shaming as a deterrent mechanism to curb acts of non-compliance with the

law. The concept does not appear in any piece of legislation or policy. It has

not been a subject for public debate, except in one instance involving

employers who failed to remit pension contributions to pension managers in

contravention of the Pension Act 20102. Notwithstanding this state of the law,

this paper argues that the Malawi Constitution, when read and interpreted

broadly and purposively, provides for situations where, State institutions shall

progressively adopt and implement principles of non-discrimination and ‘such

other measures as may be required in order to actively promote the welfare

and development of women to attain gender equality.REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

49

It is argued that the Constitution envisaged progressive activism as a means

of accelerating gender equality in a society which still regards women as

inferior to men, women as chattels, women as belonging to the kitchen,

women as child bearers and minders and nothing more, women as

subordinate to men, women as not deserving pleasures and the good things in

life, women not deserving good education, employment, business and that

women do not complain, they take their grievances in their stride as part of

being a woman among other beliefs. It is the view of this paper that it was not

the duty of the Constitution, to spell out in specific terms what form, ‘such

other measures as may be required’ would take? This was left open to State

institutions and other stakeholders to fill in. For example, nineteen years after

the Constitution was enacted and after much debate, lobbying and canvassing

a piece of legislation was enacted to deal specifically with sexual harassment.

This is one justification supporting the view that, ‘naming and shaming’ can on

the basis of the Constitution, be used to obtain gender equality for women and

men. Eradicating sexual harassment in the workplace in Malawi will not be

achieved by only using the Gender Equality Act. This is because of several

factors, for example, low levels of education for both men and women,

especially women, low levels of understanding of the law, fear of courts,

complex court processes, lack of resources to access courts, poverty,

generally women’s poor self- esteem, fear of stigma6 and culture. It is

therefore imperative that ‘other measures’ suitable for Malawi environment be

tested and pursued towards achieving zero tolerance to sexual harassment.

Naming and shaming, yield instant result on the offender and would be

offenders. It is a cheaper means of getting result than going through the legal

route. The news spreads faster than would be the case with other

enforcement mechanisms. The news can be disseminated in any language

therefore reaching most of the population. At policy level, the government

saves resources because the offenders and would be offenders need not REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

50

necessarily spend time in prison in order to reform. Named and shamed high-

profile individuals get their punishment through the embarrassment,

discomfort, anger and fear that they are likely to experience. It is argued in this

paper that the respondents in the three pioneer cases were State agencies,

sued in that capacity, hence the individual offenders did not have to bear any

costs of the litigation or suffer any personal financial or physical setback or

discomfort. The only punishment that could affect them personally would be

the one suggested by this paper, naming them in order to shame them. Once

identified, the society plays the role of reprimanding, reproaching, censuring,

controlling, influencing and supervising them.

Malawi Electoral CommissionThe Malawi Electoral Commission was taken to court by one Miss Alice

Nazombe. The case was registered as Nazombe v Malawi Electoral

Commission. The Executive Management of the Malawi Electoral

Commission is headed by the Chief Elections Officer.

In the reported case, the Chief Elections Officer, Mr Chimwaza, was assigned

a Personal Secretary, Miss Alice Nazombe, who had gotten to the post

through competitive interviews. She was confirmed in her position in 2001. On

25 July 2002 she received a memorandum from her immediate boss, Mr.

Chimwaza transferring her to serve the Deputy Chief Elections Officer, which

office was at the time not occupied. Miss Nazombe’s junior was appointed to

take the position of Personal Secretary to the Chief Elections Officer. In due

course, Mr. Chimwaza asked Miss Nazombe to surrender a cell phone which

she was using by virtue of her position as Personal Secretary. On 13

November she got another letter from Mr Chimwaza advising her to transfer to

the Audit Office and serve as copy typist. This is what broke the camel’s back.

She inquired from Mr. Chimwaza why she was being demoted and why her

entitlement to cell phone was taken away. Mr. Chimwaza did not bother to

respond. This is when Miss Nazombe (hereinafter referred to as the applicant) REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

51

took to the courts. It was in the same year that the Industrial Relations Court

had just been established on permanent basis. The claim was based on unfair

labour practices under section 31 of the Constitution. The court noted that

although the applicant did not cite the provision as the basis of her claim, it

was clear from the pleadings that the claim was one based on section 31 and

the court so allowed it after counsel for the respondent had raised an issue on

the matter.

The particulars of the applicant’s claim were that:(a) Being treated unfairly so that she can resign from her job

(b) Denying her suitable facilities to perform her job

(c) Denying her seminars and allowances

(d) Assigning her to a junior office

It was the evidence of Mr. Chimwaza as a witness of the Malawi Electoral

Commission (hereinafter referred to as the respondent) that he acted in the

manner complained of because the applicant was not performing to his

satisfaction. He said the peak of her non- performance was established at the

lake resort district of Mangochi, where she had gone to work. They had a

misunderstanding about allowances. He averred that the applicant had acted

rudely towards him. He reasoned that she had lost respect in him and that he

could no longer work with her. Hence her demotion to the office of his deputy.

It should be noted that the applicant went to court unrepresented. She argued

her case herself without any assistance. The respondent was represented by

counsel. After hearing evidence from both sides, the Chairperson of the court

found for the applicant. In his judgment he made ten findings.

Relevant to this paper are the following findings: That courts have a pivotal role to play when it comes to constitutional

matters. The courts should take proactive role in order to help citizens

of a country realize their rights;REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

52

That acts of moving the applicant to a junior office and withdrawing her

cell phone constituted constructive demotion and was therefore unfair

labour practice;

That the allegation that the applicant was rude and insubordinate was

not supported by evidence;

That as a public officer the respondent was obliged to respond to the

complaint by the applicant on her unfair treatment; and

The respondent was a judge in his own case. He laid a charge against

the applicant and made a unilateral decision without hearing the

applicant’s side or affording her a fair hearing. This was an act of unfair

labour practice.

After making these findings the court ordered the respondent to re-instate the

applicant into her original position of Personal Secretary to the office of the

Chief Elections Officer.

Lessons from this caseThe Chairperson did not find that the conduct of the respondent constituted

sexual harassment. He however observed that, “it would appear as if there is

something hidden between these two parties, that is, the applicant and the

Chief Elections Officer, which thing does not come out clear in the open”

(page 471). This is a loaded observation made after the Chairperson

assessed the demeanour of both parties. It is however not clear until now

what that ‘hidden thing’ was. For purposes of this paper, the lesson that can

be learnt is for persons holding senior public offices to be transparent,

accountable and able to justify their actions. They hold their office on trust and

it is their responsibility to act in a manner that instils public confidence in the

office. They must act within the law.


The Malawi Stock ExchangeThe Executive Management of the Malawi Stock Exchange is headed by the

Chief Executive Officer. In this reported case, the Malawi Stock Exchange

was taken to court in the matter of Chinkondenji v Malawi Stock Exchange.

The applicant Mrs. Veronica Chinkondenji was employed as an Administrative

Assistant. She fell sick. She had to undergo a procedure called D&C, a minor

operation that saw her being admitted to hospital. After her discharge and

check- up the doctor recommended that she be on sick leave. She

communicated all this information to her boss, the Chief Executive Officer, Mr.

Tom Mpinganjira. On return to work, fourteen days after the sick leave, she

found that her office had been assigned to someone else. When she enquired,

she was advised to take up the reception area and work as a receptionist.

She was not pleased with the arrangement. She asked that she be reinstated

in her office but Mr. Mpinganjira did not attend to her demand. This prompted

her to lodge a complaint in court. Her case was registered as IRC Matter

Number 20 of 2002. She claimed that she had been demoted because of

illness. Just like the previous case, it was lodged immediately after the court

was set up. The respondent argued that the applicant had not been demoted.

She was entitled to the same benefits as she was before she was assigned

reception duties. Nothing in her terms and conditions of employment other

than the office had changed. They argued that they employed a temporary

secretary to cover the applicant’s absence. It transpired in evidence that

previously the applicant had suffered a major illness that necessitated an

operation. She had a tumour in the womb. The incident that led to her

absence leading to her removal from her office also involved reproductive

parts of her body. There was no justification for her to be victimized because

of these problems. They were common problems affecting women.


After the evidence had been led by both parties, the court made a decision

that the applicant had made her case. The respondent was ordered to re-

instate the applicant to her original office and a further order restraining the

Chief Executive Officer, Mr. Mpinganjira, from psychologically harassing the

applicant.

The following were the reasons for the decision: A case of demotion is made out where an employee is asked to

perform duties in an office of a lower rank even though her salary and

benefits remain unchanged; and

It is unfair labour practice to make a decision that adversely affect an

employee based on unsupported medical assessment.

Lessons from this caseBy their biological nature women suffer from certain illnesses that men do not.

It would be absurd and unfair to treat women unfairly on the basis of this

biological state. It was fair that the court took into account this fact by

mentioning the problem in the judgment. The applicant was entitled to fair

treatment despite her health problem. Just like in the previous case, the Chief

Executive Officer through the board made unilateral decision that affected the

employment status of the applicant. This was held to be an unfair labour

practice.

The case did not make any reference to sexual harassment although it did

refer to, ‘psychological harassment’. The Employment Act 2000 provides for

sick leave. Every employee is entitled to minimum of four weeks sick leave on

full pay and eight weeks sick leave on half pay during each year. Upon return

from sick leave the employee is entitled to her office and benefits. What

transpired in this case was contrary to this provision and contrary to the

Constitutional right to work.


Office of the OmbudsmanThe third case involves the Office of the Ombudsman and concerned the

Ombudsman himself. It was registered as Kamkosi v Office of the

Ombudsman.

It was Mrs Rose Kamkosi’s (hereinafter referred to that applicant) evidence

that she served the Ombudsman, Mr Enock Chibwana as his Personal

Secretary. The office was based in Lilongwe. They sometimes worked in out

stations like Mzuzu where the office had a guesthouse. On this occasion, the

applicant and the Ombudsman were working in Mzuzu until 5.00pm when the

Ombudsman went to the applicant and said, “Rose, are you tired? - be frank?

I want us to do some work this evening”. The applicant answered by saying

‘we shall see’. Later that evening the two had their dinner with the rest of the

members of staff and retired to bed. The Ombudsman bid good night to

everyone before retiring. He did not mention the purported work to the

applicant. The applicant proceeded to sleep.

Upon returning to Lilongwe, the applicant did not find the Ombudsman. She

was informed that he had travelled to Blantyre. She was then advised that the

Ombudsman no longer needed her services. That she should move to another

office. This was a makeshift office which had been created just for her. The

reason for the decision to move her was that the Ombudsman had complained

that while in Mzuzu she had not spoken to the Ombudsman well. When she

was asked about working in the evening, her response was not offensive. The

applicant was shocked. She asked the Ombudsman to forgive her, for the

response in Mzuzu. The Ombudsman did not attend to the apology. This

prompted the applicant to seek legal redress.


It was revealed in court that this incident in Mzuzu was not the first attempt by

the Ombudsman to ‘work’ with the applicant in the evening. In 1999 when the

applicant was attending a course in Blantyre, the ombudsman used to send

her invitations to have dinner with him. She turned down his invitations. After

turning down these invitations the relationship between the applicant and

Ombudsman became strained. The respondent created hostile working

environment for the applicant. He eventually demanded that the applicant be

moved to another office and opted to work without a secretary. The court

analysed the evidence from both parties. The Ombudsman did not attend

court in person. He opted to send his representative from the human resource

office to speak for the office. The court found that a case of sexual

harassment had been established.

The reasons for the decision were as follows: Sexual harassment at the workplace can take various forms. In this

case, it was recognized as violence against women;

Acts constitute sexual harassment when the victim has reasonable

grounds to believe that her objection would disadvantage her in

connection with her employment including recruitment or promotion or

when the conduct creates a hostile working environment;

The applicant was subjected to a hostile working environment due to

her strong stand not to give in to her boss’s demands to have dinner

with him. The invitations for dinner were unwelcome and constituted

sexual harassment;

Fair labour practice requires that before an employer takes any

disciplinary action, other than dismissal, the employer should act

reasonably;

The applicant had legitimate expectations which included a good office,

good furniture, a telephone, travelling allowances and high status of

Personal Secretary. The respondent unilaterally deprived the applicant


of all these benefits and expectations. This was a violation of the

applicant’s constitutional right to fair labour practice and lawful,

procedurally fair administrative action as enshrined in the Constitution;

The applicant was not afforded an opportunity to explain her side of the

story and to bring any mitigating circumstances. This was a violation of

the rules of natural justice which require that a person should not be

condemned unheard;

The applicant was subjected to degrading treatment. She was put in a

makeshift office that had no facilities, including suitable secretarial

furniture;

The applicant did not establish constructive dismissal because there

was no termination of the employment contract; and

The order sought by the applicant to be transferred to another

constitutional body required the court to carry out a thorough enquiry as

to its practicability.

Lessons from this caseThe court considered the facts and made a bold finding that the facts

established sexual harassment although the applicant did not plead sexual

harassment. Although at the time the Malawi laws did not have a definition of

sexual harassment, the court was resourceful and applied definition from other

sources, in this case from the Convention on the Elimination of Discrimination

against Women (CEDAW). This is called judicial activism and it is highly

commendable because it is aimed at righting the traditional wrongs against

some disadvantaged groups in a society.

Sexual harassmentThe definition of sexual harassment in the Gender Equality Act (hereinafter

referred as GEA), is in section 6. It provides that, “a person commits an act of


sexual harassment if he or she engages in any form of unwanted verbal, non-

verbal or physical conduct of a sexual nature in circumstances in which a

reasonable person, having regard to all circumstances, would have

anticipated that the other person would be offended, humiliated or

intimidated”. The Malawian society is dominated by male decision makers at

both government and local level. These traditions regard women as inferior

and subordinate to men. This reasonable person standard has its origins from

England and Wales whose customs are different from those in Malawi.

Therefore, it probably unfair to subject the assessment of sexual harassment

to a reasonable man test in Malawi.

Laws are supposed to move with times and must be adapted to suit local

traditions, cultures, values, morals and beliefs of what is wrong or right. The

standard of reasonable person as understood in common law countries is a

wrong standard for Malawi in sexual harassment cases because in general

the Malawian culture does not respect women. Women are still regarded as

men’s property. Low literacy levels and economic disempowerment of women

place them in a disadvantaged position regarding cases of sexual

harassment. It is an insult to subject their fate in sexual harassment cases to a

reasonable person’s standard. It does not make a difference if that reasonable

person is a man or woman because the chances are that these cases will be

handled by men either in the formal or informal justice system.

It is a legal requirement under the GEA that public office must be occupied by

not less than forty percent women. The High Court is at thirty- seven percent,

women representation. As the enforcement machinery to enforce the

provisions of the GEA it is imperative that the appointing authority bridges this

gap to validate the spirit of the Constitution and the GEA. It is also a

requirement under the GEA to formulate flexible procedures and fees regime

in all courts that allow for easy access to justice by vulnerable groups. A case

should not fail on the basis of technicality. It is the substance of the matter REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

59

which is critical. Judges ought to give facts priority and not make decisions in

a vacuum when issues of human dignity are at stake.

It serves no good hiding behind archaic excuses that the ‘law has no eyes’. If

the legislature thought the law cannot see it would not have made provisions

in the law on affirmative action. This is why courts like the IRC have made

tremendous inroads in access to economic justice for women through its

deliberate policies of creating simple and straightforward procedures,

minimum registration fees policy, women first and speedy disposal of cases.

Further, a combination of considering cases from a human rights perspective

while maintaining the supremacy of substance/ facts over technicality has

helped the court reach out too many disadvantaged court users especially

women.

ConclusionIn conclusion, this paper has highlighted the importance of empowering

women economically either through gainful employment or productive

businesses. It is only where women are empowered economically that they

can attain full autonomy over their lives and matters that affect them. It is not

enough to just eliminate sexual harassment in the workplace. Research at the

Industrial Relations Court (hereinafter referred to as IRC) shows that the Court

has consistently applied the law to give effect to the objectives of the

Constitution on the question of non-discrimination and equal access to

economic resources. The court has found that women can enter into contracts

in their personal capacity to advance their economic empowerment and that

women can marry, establish a family and still earn a living through gainful

employment. The IRC endorses the participation of women affected with

HIV/AIDS in economic development through employment. It also found that

procreation is a natural process and that women must not be discriminated

against on this basis when it comes to their career advancement. IRC


promotes conducive working environment for women so that they can freely

enjoy their economic rights and freedoms by punishing institutions and

employers that practice, encourage or condone hostile working environment

including cases of sexual harassment.

4.3 An Evaluation of the Impact of Female Private Security Guards Unions in Africa: The Case of Botswana, Namibia, and South

Africa

AbstractThis paper explores reasons why it has been difficult for female security

guards to unionise and even when they are unionised, their associations are

ineffective and are not taken seriously by both African governments and

security companies’ management. Specifically, this paper explores the

implications of this weak unionisation and even worse non-unionisation on

labour relations in Africa. Unionisation in the private security sector is major

problem world over partly because of the nature of the sector itself and also

because of the autonomy of company owners when it comes to issues of

collective bargaining. The voice of women in a male dominated private

security sector is not only weak, in a majority of cases is not heard at all

mainly because of cultural beliefs and as a result of the absence of women

advocacy on labour relations. Also lack of Industrial Relations regulatory

bodies is yet another challenge that affects African governments on Labour

relations that affect women in the private security sector compound the

problem of women in the private security companies.

Introduction• Trade unionism is a masculine affair; hence many women shy away

from active participation.


• According to the existing literature, there is no trade union that

represents women in any sector in Africa.

• Yet women are the majority in a number of federations and trade

unions.

• except in the private security sector where men are dominant gender as

demonstrated in the next section.

Historical background• Starting in the twentieth century, women began to become more active

as industrial labourers in the South African economy.

• They began to take issue with their unacceptable working conditions

and decided to take action against them by means of unionisation.

• Sexual abuse, minimal pay, unfair demands, and societal perception of

female inferiority could no longer be tolerated and motivated the

victimized women to fight for rights and respect in the work place.

• The leaders of the movement, quickly found that the most effective way

to fight for their rights was through unionisation.

• Female leaders also had to fight gender discrimination within the

unions.

Employment equity representation in Botswana & Namibia PSS

Botswana / Namibia South Africa

• General trade unionism very

weak(Nationally)

• Private security sector-No

trade union for women

• No employer organisation

• Employee/women rights are

• There are a number of

federations in the sector

• Significant number trade

unions (14) representing PSS

employees across sector

• Employer organisations (4)


non-existent

• Regulation of this private

security sector is not enforced

• Meanwhile abuse of women in

the workplace continues

unabated

• Labour Relations Act is very

clear on issues of EE rep &

collective bargaining

• But then How is women

representative in the T/U

leadership?

Challenges faced by women in T/Unions• African communities are generally patriarchal in nature.

• Women’s oppression occurs within the context of unequal gendered

power relations.

• In Africa, most programmes and activities, such as collective

bargaining, do not take account of the specific needs of women

members.

• There is also an active and direct domination over women through

sexual harassment and open discrimination, especially in terms of

recruitment and promotions

• There is no platform where young women can interact and network with

other women who are in a higher social, economic and political

leadership

Implications• Where there is no rule of law, there is anarchy, even in the workplace

• In the absence of African governments intervention in the area of

women unionism exploration, sexual abuse, unfair labour practice will

continue

• ILO interventions are needed in a majority of cases e.g. Botswana and

Namibia cases,REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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• However, the ratification of ILO Conventions does not always translate

into implementation.

• African women in the PSS Women will continue to live in fear and

become victims of injustice until someone addresses the issue of

unionisation.

Conclusion• Both Botswana and Namibia governments need to demand registration

and labour audit reports from time to time.

• These countries ought to review of company legislations to demand full

responsibility in terms of Ee welfare such workplace democracy and

equity.

• Even SA is advance in terms of labour relations…does it mean

women’s interests and aspirations are heard…without their

representation in the trade union leadership?

• Is the Botswana, Namibia and South Africa cases a representation of

the Africa countries in terms of labour practice?

• Lack of women in the PPS poses a great threat to workplace

democracy and labour peace in general.

• Women ought to be given their constitutional rights, labour rights and

the opportunity to be heard.

4.4 It doesn’t have to be a gender thing: Gender and the male nursing experience

AbstractInformed by feminism, gender equality strategies mainly focus on empowering

women to take up positions and be involved in male dominated spaces. Over

the years, national policies and formal regulations have been revised

worldwide to eliminate all gender discriminatory clauses. Nevertheless, gender


stratification still persists as men and women dominate specific spaces in

society. The nursing profession is one of the sectors in which gender

stratification is profound. This paper argues that any effective gender equality

strategy should not only focus on changing national policies, organizational

practices or formal regulations which are gender discriminatory in nature but

should also put into consideration all social practices or dimensions in which

gender inequality is being produced and duplicated. By focusing on

empowering women and engendering male dominated fields, for example,

female dominated fields like nursing are neglected and remain gendered.

Through in-depth interviews, this paper explores men’s experiences of the

nursing profession in Johannesburg, South Africa. The results show that male

nurses undergo a gendered experience throughout their training and clinical

work. Thus, male and female nurses practice gender by gendering themselves

and each other hence gender inequality is reproduced. Outside the workplace,

the gender identity of male nurses is also affected as they are accorded

stereotypes such as ‘being gay’ for pursuing a career in a profession which is

historically and traditionally considered to be feminine.

IntroductionOver the years feminist theories have shown that patriarchy is a philosophy

which privileges men and discriminates against women. Hence gender

equality remains the main focus in sustainable social development programs.

Gender mainstreaming has been a central approach in advocating for gender

equality since the United Nations Fourth World Conference on Women in

Beijing in 1995.The International Labour Organisation (2009: 6) defines

gender mainstreaming as “a strategy for making the concerns and

experiences of women as well as of men an integral part of the design,

implementation, monitoring and evaluation of all policies and programmes in

all political, economic and societal spheres, so that women and men benefit

equally, and inequality is not perpetuated”. Accordingly, governments across


the globe have come up with policies to support this cause. Given the fact that

women have historically had limited access to power and opportunities

compared to men, most policies attempting to address gender equality rightly

focus on women. For example, the South African Women Empowerment and

Gender equality Bill of 6 November 2013 encourages gender mainstreaming

in public and private sectors to reduce disparities between men and women -

with a strong emphasis on women empowerment and the integration of

women in all male dominated sectors. This is commendable given the

historical and continuing disadvantages experienced by women in patriarchal

societies (Connell, 2002). However, for real gender equality to be achieved, it

is important for gendered notions about work to be addressed (Walby, 2003).

This is especially important because men do not benefit equally from male

gender privilege (Whitehead, 2001; Connell, 2000) as factors like race, class,

status, age and physical disability influence how power is distributed among

men and also how they benefit from the gender privilege.

The rationale for this article stems from the observation that, where gender

mainstreaming is mentioned, there is little or no indication of how to support

and integrate men in the nursing profession. Gender mainstreaming should

not only be about increasing women’s participation but also ensure that both

men’s and women’s anticipations, experience, knowledge and interests are

included in policy planning and implementation. The continued gender

stratification in caring professions like nursing coupled by the increasing

demand of nurses worldwide has aroused research interests among scholars

in South Africa and beyond (Marks, 2000; Lupton, 2006). While previous

research focused on the genderedness of the nursing profession and how to

become a male nurse, this article explores how gender inequality in the

nursing profession is perpetuated and how it impacts the way in which men

experience the nursing profession. An analysis of the different ways in which

men experience gender and how they negotiate their identity in female


dominated spaces is crucial as it informs policy in terms of identifying men’s

needs and areas that require intervention.

Gender and the Nursing profession in South AfricaIn South Africa, gender categories of masculine and feminine are dominant

and diverse in all cultures. During the colonial era, apartheid and the liberation

struggle, the focus was on awareness and eradication of racial segregation

(Horowits, 2001). Little attention was given to other oppressed groups like

women, children and marginalised men. The structures of colonialism and

apartheid undermined the position of women and children in society. Hutson

(2007) and Khunou (2012) agree that the conceptualisation of gender in South

Africa was highly influenced by the principles of colonialism, apartheid regime

and the multi-cultural beliefs of the South African community. During

colonialism and apartheid, written laws like labour laws defended and

supported men more than women. The education system was built in such a

way that it promoted men more than women (Hutson, 2007). Although women

started relocating to urban areas during the colonial and apartheid systems of

government in search of work, laws could not allow them to get good jobs

(Hutson, 2007).

In Post-apartheid South Africa, the government committed itself to protecting

human rights for all oppressed groups and the issue of gender equality

emerged. The constitution was changed and the founding principles of the

constitution included human rights, equality and freedom for everyone.

Section 9 of the constitution provides for freedom from unfair discrimination

based on gender, sex, pregnancy, marital status and many others (ANC,

2012). The call for gender equality influenced the formulation of policy and

registration in key economic development areas like education and

employment (Women Department, 2015). However, despite the government’s

efforts to combat gender inequality and all forms of oppression and


discrimination, gender inequality persists in some sectors like education and

the labour market. In education, for example, more women enrol at tertiary

level as compared to men. But there are low numbers of women in technology

and science studies. Fields of study at tertiary institutions are still gendered

such that women dominate feminised courses like social work, nursing and

hospitality while men dominate masculinised courses like engineering and

computer sciences.

Although the number of women recruited in the labour market has improved,

women still dominate the low status jobs with low remuneration as compared

to men. Women dominate the caring jobs, services sector and low-skilled jobs.

Due to their gender privilege, men dominate high-skilled labour with high

remuneration.

Gender and the nursing professionThe caring professions like nursing, social work and primary school teaching

are gendered and considered as feminine in nature. Hence nurses have

battled to have their worth and specialised knowledge and skills recognised

(Camilleri and Jones, 2001). The nursing profession is undervalued and hold

low status in society due to its connection to feminine attributes of caring. In a

patriarchal society, women are regarded as inferior to men so anything

connected to feminine characteristics might as well be considered inferior

(Bryson, 1992 in Camilleri and Jones, 2001: 28). Accordingly, men would

always want to distance themselves from caring work because doing so in a

patriarchal society would make them look weak and more feminine.

Nightingale’s principles and practice created an image of a nurse as

subordinate, nurturing, humble and self-sacrificing (Barrett-Landau, 2014).

Marks (2000: 1) argues that; “since the days of Florence Nightingale, the icon


of modern professional nursing, nursing leaders have insisted on the intrinsic

link between nursing and femininity. Not only has nursing been regarded as

typically women’s work”. In contemporary society, the public image of the

nurse focuses on those characteristics traditionally endorsed as being

feminine. The gendering of the nursing profession also influences the nursing

education which focuses on training women to become nurses. Nevertheless,

studies (Khunou, 2012; Simpson, 2004; Williams, 1995) have shown that men

have historically existed in gender atypical professions like nursing in small

numbers. These studies indicate that due to their gender privilege, men in

female dominated occupations are channelled into managerial positions with

high remuneration packages compared to women.

The nursing profession in South AfricaThe Republic of South Africa Nursing Act number 33, (2005) defines nursing

as a caring profession practised by a registered person, which supports, cares

for and treats a health care user to achieve or maintain health and where this

is not possible, cares for a health care user so that he or she lives in comfort

and with dignity until death. According to the Act, nurses in South Africa fall

under three categories. First, professional or registered nurses who undergo

four years of training. Midwives fall under the category of professional nurses.

The second category is of staff or enrolled nurses with two years of training.

The last category is of auxiliary nurses, also known as nursing assistants with

one year of training (Rispel, 2015). These nurses form the largest group of

health service providers in South Africa and their impact is tremendous.

However, despite the government’s remarkable efforts to bring about gender

equality and human rights for all, the nursing profession remain gendered.

Although the number of male nurses has increased over the years, they

remain very few as compared to female nurses. According to the statistics

provided by the South African nursing council for the year 2015, the numbers


of female nurses superseded the numbers of male nurses by far. Table 1.1

below shows the number of male and female nurses in each category for the

Gauteng province.

Gender Registered Enrolled Auxiliaries Total Female 33308 16134 17971 67413 Male 2462 1335 1207 5004 Total 35770 17469 19178 72417

As shown in Table 1, the total number of female nurses for the Gauteng

province in 2015 was 67413 while the total number of male nurses was 5004.

This confirms how gendered the nursing profession in South Africa is. Nursing

in South Africa has been the main provider of employment opportunity to

women both black and white (Marks, 2000). The gendered nature of the

nursing profession in South Africa is one aspect that has remained unnoticed

and unchallenged for centuries (Marks, 2000).

The gendered nature of the nursing profession has its own consequences,

one of which is the lack of nursing personnel in hospitals. According to Rispel

(2015), there is what she calls a nursing crisis in South Africa characterised by

the shortage of nursing personnel. Statistics provided by the South Africa

Nursing council show that the ratio between the number of nurses and the

population in South Africa is too big.

Becoming a male nurseMaking a choice to pursue a career in nursing might not be easy for men

considering the nature of the nursing profession which is dominated by

women. The nursing profession has historically been perceived and

stereotyped as feminine. Traditional gender role ideology and discourses

perceive caring as a feminine role hence “the caring image of the profession

has been used to symbolise the epitome of femininity” (Zamanzadeh,

2013:49).


The study findings indicate that there is a relationship between attitudes

towards gender roles and men’s career choices and approach to work. This

finding affirms Correll (2001) assertion that cultural beliefs about gender

constrain the early career-relevant choices of men and women. She argues

that "gender beliefs bias self-perceptions of competence” (Correll, 2001:1724).

At the same time cultural expectations of competence justify inequalities in

goal achievements and career choices.

It doesn’t have to be a gender thingAlmost all participants in this study were of the view that career choice

shouldn’t be about gender. Gone are the days when professions depended on

whether you are a man or woman. Although five participants were black South

African men, who originally came from the cultures that value traditional

gender role attitudes, circumstances surrounding their upbringing and the

society in which they lived made them to embrace an egalitarian attitude

towards gender roles. While the traditional gender role ideology puts much

emphasis on distinct roles between men and women, the egalitarian gender

role ideology accentuates no boundaries between men and women in terms of

the roles they play in society. As such, they willingly accepted the challenge of

joining the nursing profession despite being mostly perceived as a women’s

profession.

Gender and the male nursing experienceResults from the study indicates that men undergo a gendered experience

both in training and when performing their job. The idealised traditional

meanings of femininity and masculinity do not just disappear by the presence

of men in a female dominated profession. The hierarchical and

complementary structure of the gender relations is still maintained when men

enter the nursing profession. The idealised meanings of femininity and

masculinity influence interpersonal relationships, social structure and


organisational structure (Schippers, 2007). The study’s data upholds the

assumptions made by social constructionists (Risman, 2004; Martin, 2003)

who perceive gender as a social institution that has a social structure with

related practices, which comes with privilege, subordination, social

expectations and practices. This gender institution exists and influences our

daily lives and the running of social organisations. The gender institution is

internalised and used by individuals to identify themselves hence it influences

individual behaviour, social interaction and expectations. The gender

institution also has a structure that would not disappear “when men and

women were distributed across the variety of structural positions that organise

our social world” (Risman, 2004:439). Placing men in women’s position does

not take away their gendered individual selves, idealised expectations and the

gendered organisational culture. Male nurses as well as female nurses gender

themselves and have gendered expectations of each other. Thus, the

gendering practices and practicing of gender significantly influence the way

male and female nurses experience gender.

Gendered nursing rolesThe idealised meanings of masculinity and femininity provide a rationale on

how the nursing profession is structured. They justify the unequal job

description and nursing departments. According to study results, it is indicated

that when men enter the nursing profession they identify themselves with jobs

or departments that are more masculine in nature. Participants in this study

reported that most of the men in nursing prefer working in departments, which

do not require basic nursing like bathing patients and changing bed linen. Men

choose to work in departments like psychiatry, pharmacy and theatre where

there is less contact with patients. Study results indicate that men are moved

to positions where there is no basic nursing as compared to women. Thus,

there is gendering of the nursing roles, departments and positions. Men

gender themselves by choosing masculine roles, departments and positions

and they gender women by letting them do feminine roles like basic nursing REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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roles of bathing patients and changing linen. Female nurses also, gender male

nurses by letting them do jobs which they perceive to be masculine like lifting

heavy patients. Doing gender and the gendering practices are problematic

because they perpetuate the genderedness of the nursing profession and

hence maintain gender inequality.

ConclusionThe study findings have brought to light some of the factors that have

contributed to the prolongation of gender inequality in the nursing profession.

Details relating to the factors that motivate men to enter and stay in the

nursing profession have been presented. The study has also unpacked ways

in which gender inequality is perpetuated in the nursing profession by

gendering practices and practicing of gender and that men undergo a different

(privileged) experience in female dominated occupations as compared to

women in male dominated occupations. Study results confirmed that due to

factors that intersect with gender, men do not benefit equally from the gender

privilege, however, they do benefit more than women do and the nursing

occupation is no exception. This study provides a platform for further research

that could aim to explore patient’s perceptions and experience of male nurses.

The public perception of male nurses also needs to be explored and how the

presence of more male nurses could influence the impact of the nursing

profession to the society.

SUB THEME THREE (3) – PUBLIC SECTOR EMPLOYMENT RELATIONS IN AFRICA

5.1 PUBLIC SERVICE EMPLOYMENT RELATIONS IN SOUTH AFRICA

Abstract


This paper covers the South African case study on Public Sector Employment

Relations. It gives the general overview of the legal framework that regulates

public service employment relations and demonstrate the growing power of

trade unions. It also covers proposed strategies by the public service to

reduce strikes specifically in the public educations sector. The paper also

interrogates the remuneration trends in the South African public service and

gives the holistic overview of the available public service collective bargaining

platforms and framework. It also covers an overview of performance

management in the South African public service and discusses platforms for

dispute resolution.

IntroductionSouth African Labour Relations has gone through a lot of transition over the

years. The labour relations act 66 of 1995 offered protection to all employees

including those that were previously not covered. The act sets out the laws

that govern labour in South Africa and is guided by Section 27 of the

Constitution, which entrenches the rights of workers and employers to form

organisations for collective bargaining. Together with the Basic Conditions of

Employment Act, it also ensures social justice by establishing the rights and

duties of employers and employees. It also regulates the organisational rights

of trade unions deals with strikes and lockouts, workplace forums and other

ways of resolving disputes. It provides a framework for the resolution of labour

disputes. The public service is also regulated by the Public Service Act which

also sets out some of the important laws for the employment conditions of the

public service in South Africa, particularly with regard to terms of office,

disciplinary procedures, retirement and the dismissal of public service

members.

Every time we speak of South African Labour relations, one can’t resist to

mention the apartheid era, just to point out the evolution of the labour relations


by comparing the past to the current situation because these current policies

are influenced by actions that were designed to address social injustices and

inequalities of the apartheid era.

It has always argued that, the South African Labour Relations Act is favouring

labour and therefore offer favourable conditions for workers and in the

process, empowering the trade unions. It has also been said to have favoured

the trade unions and extended favourable rights to trade unions. It is a general

knowledge that trade unions played a crucial part in fighting the apartheid era

as a result, trade union movement in South Africa is extremely powerful. The

South African labour force has a high proportion of unionised employees and

strong legislation supporting unionisation. The political alliance between the

biggest union confederation (COSATU) and the ruling ANC also demonstrate

the power and influence of trade unions in the political landscape of the

country and labour policies.

Legal Framework Regulating Public Employment RelationsThe South African Constitution supersedes all other acts of the country and all

South African statutes must conform to the basic principles contained in the

Constitution. The Constitution provides clear guidelines with regards to

employment relations. Section 23 of the Constitution speaks to the labour

related provisions and it stipulates that, everyone has the right to fair labour

practices, workers have the right to form and join a trade union, to participate

in the activities and programmes of a trade union and to strike, every

employer has the right to form and join an employers’ organisation and to

participate in the activities of an employer's organisation. Every trade union

and every employer’s organisation have the right to determine their own

activities, to organise, to bargain collectively and to form and join a federation.

Every trade union, employers’ organisation and employer has the right to

engage in collective bargaining.


The Labour Relations Act is a centrepiece of the labour law in South Africa

and all labour laws are subordinate to the LRA. The main purpose of the

Labour Relations Act is to advance economic development, social justice,

labour peace and a democratisation of the workplace by fulfilling the primary

objectives of the Act. Primary objectives of the Labour Relations Act is to

realise and regulate the fundamental rights of workers and employers in the

Constitution.

Basic Conditions of Employment Act (BCEA) is to advance economic

development and social injustice by establishing and enforcing basic

conditions of employment. Its primary objective is to give effect to and regulate

the right to fair labour practices as contained in Section 23 (1) of the

Constitution by establishing and enforcing basic conditions of employment and

to give effect to obligations incurred by South Africa as member state of the

International Labour Organisation.

Employment Equity Act is to promote equal opportunity and fair treatment

and with the inclusion of the Affirmative Action, also assist to social injustice

created by the apartheid. Affirmative Action is a strategy and process aimed at

transforming socio-economic environments which have excluded individuals

from disadvantaged groups in order for such disadvantaged individuals to gain

access to opportunities based on their potential.

The Increasing Power of Public Sector UnionsLabour unions have played an integral role as a voice for social transformation

in South Africa. During apartheid, their objectives were distinctly political. Their

formal influence grew with the deregulation of black trade unions in the early

1980s.Post-apartheid labour laws – such as the Basic Conditions of

Employment Act of 1997, the Labour Relations Act of 1995 and the

Employment Equity Act of 1998 – have been designed to protect workers from

historical discrimination. They also empower unions in defence of their

members.REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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Unions have increased their influence in the workplace. Membership statistics

also indicate that unions are still considered relevant. It is believable that the

benefits of union membership differ by sector. The alliance between the

governing African National Congress and the Congress of South African

Trade Unions suggests that the public sector and unions share a common

interest in enabling and implementing democratic-era policies. This includes

enforcing labour laws and fairness towards workers. The benefits of

unionisation and collective bargaining are therefore far more pronounced in

the public sector. This underlines the government’s commitment to

implementing its policies among its own employees. Unionised public-sector

workers are also far more likely to have secure working conditions than

private-sector and non-unionised workers.

South Africa’s public sector have suffered a lot of strikes across all sectors.

The education sector has arguably been one that have suffered the most

during the industrial actions. As a result, there have been propositions that are

aimed at reducing strikes in that sector.

Strategies to prevent strikes in the Education SectorIn an effort to prevent strikes in the education sector, there have been calls

from political parties to declare education an essential service. In 2013, the

then ANC secretary-general Gwede Mantashe said the party would leave no

stone unturned to make teaching an essential service, education must be a

priority. He also stated that, when you disrupt education you are not

threatening life and death, but you are disrupting the future prospects of the

country. The proposal was however attacked by teacher unions who

described it as unconstitutional.

In December 2017 the DA presented its essential service in education

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The Labour Relations Act recognises the constitutional right to strike, but

subjects the right to a number of limitations, including the provision that no

person may take part in a strike if that person is engaged in an essential

service. The International Labour Organisation (ILO) has determined that it is

reasonable to limit the right of certain education sector employees to strike

and the DA agrees that this limitation is needed.

According to the ILO, the right to strike might be restricted in the public service

only for public servants exercising authority in the name of the state, or in

essential services. Compulsory interest arbitration has been mooted before as

an answer to South Africa’s particularly damaging public-sector strikes and

has much in common with declaring these jobs “essential services” where the

right to strike is overridden by public interest in uninterrupted service.

Remuneration in the Public ServiceOn average, public sector workers get paid more than their private sector

counterparts. According to research published by the Development Policy

Research Unity from the University of Cape Town in 2014, the real monthly

wage of an average public-sector employee is R11, 668 compared to R7, 822

for an average private sector worker. The report stated that public sector

workers are more unionised than private sector workers, which gives them

more power to negotiate wages. In addition, public sector wages have less

dispersion than private sector wages, indicating a lower level of wage

inequality within the public sector. This is because public sector workers are

more unionized than private sector workers, which gives them more power to

negotiate wages.

These general annual salary adjustments include the cost-of-living

adjustment, annual pay progression and grade progression. Employees

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progression will be awarded to qualifying employees in terms of the specific

Occupation Specific Dispensation. The purpose of the annual cost-of-living

adjustments is to preserve the buying power of the employees, in order to

ensure that their salaries are not eroded by inflation.

Employees in the Public Service qualify for a guaranteed package that

includes basic salary, the annual service bonus that equals an employee’s

one-month salary payable in the public service as a 13th cheque and the

employer contribution to the Government Employees Pension Fund. All public

service employees appointed on permanent basis are required as a condition

of service, to become members of the Government Employees Pension Fund.

The State provides medical assistance in a form of subsidies for employees in

the public service and as well as to retired employees who belong to

registered medical schemes and who are eligible in terms of the policy

governing post-retirement medical assistance. A housing allowance is also

payable to public service employees.

The combination of salary adjustments, improved benefits and upward

progression has resulted in a large increase in remuneration levels in the

public service over the past decade. Over the last decade, negotiated annual

cost-of-living adjustments have exceeded Consumer Price Index (CPI)

inflation. In some years, this resulted from agreements set well above the

prevailing inflation rate. In order to enable government to recruit and retain

professionals, the wage agreement provides amongst others, for the

development of occupational specific dispensations for identified categories of

staff.

The Occupational Specific Dispensation (OSD) was introduced in 2007 for

public sector employees in South Africa which is unique to each identified

occupation in the public service. The purpose of the OSD was to improve

government's ability to attract and retain skilled employees through increased

remuneration. The OSD was to raise salary packages of designated skilled REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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public servants in line with those in the private sector. Previously, employees

in the public service were remunerated by a single salary structure which did

not adequately address the diverse needs of occupational categories in the

public service.

The OSD was introduced through the adoption of a collective agreement

within the framework of the Public Service Coordinating Bargaining Council

(PSCBC). PSCBC Resolution 1 of 2007 provided the framework for

occupational specific remuneration and career progression dispensations to

address unique remuneration structures, consolidation of benefits and

allowances into salary, frequency of pay progression, grade progression

opportunities, career pathing, and required levels of performance

(performance-based progression). Since PSCBC Resolution 1 of 2007 was

agreed to, several resolutions have been entered into in the various sectoral

bargaining councils of the public service.

Equal Pay for Work of Equal ValueSection 6(1) of the Employment Equity Act prohibits unfair discrimination in

any employment policy or practice, on one or more of the grounds listed in the

section, or on any arbitrary ground. These grounds include, for example, race,

gender, age, language and sexual orientation. The inclusion of section 6(4) in

the Employment Equity Amendment Act, 2013 does not change the law in

substance but accommodates claims of equal pay for work of equal value in

the general prohibition against unfair employment discrimination.

Section 6(4) provides that a difference in terms and conditions of employment

between employees of the same employer performing the same or

substantially the same work or work of equal value that is directly or indirectly

based on any one or more of the grounds listed in subsection (1) or any other

impermissible or arbitrary ground is unfair discrimination. If it is established

that the work concerned is the same, similar or of equal value and that there is REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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in fact a disparity in remuneration, it must be proven that the disparity

constitutes unfair.

Collective BargainingIn 1995 a new Labour Relations Act (66 of 1995) was passed. It extended

collective bargaining rights to all employees, including civil servants. It

reconstituted industrial councils as bargaining councils (BCs) and made

provision for public service bargaining councils. The dramatic rise in the

number of employees covered by BCs in the public service between 1995 and

2004 was due to the establishment the PSCBC and the four designated

Sector Councils.

The PSCBC is an independent forum where the employer (state) and the

biggest unions in the Public Service, meet to negotiate and sign collective

agreements that regulate the terms and conditions of public servants. The

provincial structure of the PSCBC (Provincial Chambers) deals with matters

that are affecting the provincial administration, such provincial transversal

policies and any matters of mutual interest directly affecting the province.

Sector Councils deal with matters that are specific to the relevant sector.

The four sector councils are the Education Labour Relations Council (ELRC) which focuses on the education sector; the Safety & Security Sectoral

Bargaining Council (SSSBC) which serves the Police; Public Health and

Social Development Sectoral Bargaining Council (PHSDSBC) serving the

health sector and social development; and The General Public Service Sector

Bargaining Council (GPSSBC) which covers everyone else not covered under

any of the above-mentioned sector councils. The public service bargaining

structures excludes public servants employed by the municipalities which are

covered by South African Local Government Association (SALGA) and

members of the South African National Defence Force and employees of the

National Intelligence Agency and the South African Secret Service.


Threshold and organisational rights in the Public ServiceIn order for a trade union to qualify to be admitted to the PSCBC, it must meet

a threshold of 50 000 members and be admitted at the sector council. In

addition, in order for any union to participate in sectoral collective bargaining,

it must meet the sectoral threshold as determined in the constitution of the

relevant sector council. In terms of organisational rights in the workplace,

trade unions who are admitted as parties to the PSCBC are granted the

organisational rights in section 12, 13, 14 and 15 of the LRA in the relevant

workplace. Those trade unions that are not admitted as parties to Council but

jointly meet 75% of the Admission threshold, shall be granted the

organisational rights in section 12, 13 and 15 of the LRA in the relevant

workplace.

Admission of a registered trade union to the PSCBC does not mean that

organisational rights at the relevant workplace are automatically considered to

such a union. The registered union that seeks to be granted organisational

rights, must serve on the employer a notice to exercise one or more of the

organisational rights conferred by the LRA in the workplace within the public

service. The notice must comply with the provisions of section 21(2) of the

LRA.

Dispute Resolution in the Public ServiceThe principle of labour relations granting rights to employees to voice their

dissatisfaction with their employer and employers have an obligation to ensure

that such dissatisfaction is investigated. If the dissatisfaction is justified, the

employer must ensure that appropriate remedies are implemented. The

prevailing legislation further confers the right upon employees to have their

dissatisfactions considered by independent and impartial bodies, such as the

PSCBC and the relevant sectoral council. It is considered a fair labour relation

practice that grievances are resolved at the lowest level possible.


As mentioned, in the public service perspective, in an event of a deadlock or

dissatisfaction between the employer and the employee in trying to resolve a

grievance, the next available platform will be the bargaining council. This

platform is offered by the Public Service Coordinating Bargaining Council or

sectoral bargaining councils. The PSCBC has jurisdiction over collective

agreements concluded at its level and sector councils also have jurisdiction

over collective agreements concluded by the relevant sector.

The Education Labour Relations Council (ELRC) covers the Department of

Education as employer and educators employed in terms of the Educators

Act.

The Safety and Security Sectoral Bargaining Council (SSSBC) covers the

South African Police Service (SAPS) as employer and employees appointed

under the South African Police Service Act. The Public Health and Social

Development Sectoral Bargaining Council (PHSDSBC) covers the Department

of Health and Department of Social Development as the employers and all

employees employed in the Department of Health and employees employed in

the Department of Social Development under the Public Service Act. The

General Public Service Sectoral Bargaining Council (GPSSBC) covers the

state as an employer and all employees who do not fall within the scope of

ELRC, PHSDBC and SSSBC employed under the public service act.

Conclusive remarksThe public sector is much unionised and union members made almost up to

70% of all public sector’s formal workers in 2014.The rise in public sector

unionisation is proportionate with the increase in public sector employment.

Public sector trade unions dominate union membership in South Africa. The

increasing power of public sector trade unions has been argued to be the key

drive to better remuneration, benefits and stable working conditions in the

public service. The alliance between the ruling party ANC and the largest

federation of trade unions (COSATU) have rendered more power and REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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influence to trade unions in labour relations specifically in the public service

and shows commitment of the ruling party to the welfare of workers.

Public sector unionisation seems to be much more effective than the private

sector and has undoubtable yielded more positive results. The Employment

Equity Amendment Act, 2013 has accommodated the principle of equal pay

for work of equal value. The public service act is an important legislative

framework that provides guidelines for public service employment. In addition,

the public service has a much-matured collective bargaining structure which is

fully used for the benefit of public workers. For a long time, public sector has

been characterised by strikes particularly during periods of wage negotiations

and these strikes have been argued to have brought service delivery to a

standstill. Disputes over wages, bonuses and other compensation matters

remain the main cause of strikes in the public service.

5.2 A COMPARATIVE ANALYSIS OF PUBLIC UNIONS ENGAGEMENT IN TODAY’S WOKPLACE IN SELECTED INDIAN OCEAN STATES

AbstractThis research addresses the influence of public sector unions in the Indian

Ocean and the trends that are likely to influence them in their engagement at

the workplace. A few key issues have been developed to understand the

influence of public trade unions in the Indian Ocean Islands. They are

bargaining power, innovation, employee protection and employee

engagement. Bargaining power of public trade unions in the Indian Ocean do

vary. In settled economies like Mauritius and the Seychelles, public unions do

fight for their employee rights but this remains stronger in Comoros and

Madagascar due to their prevailing economic situation. Innovation in public

union organisations remain broadly similar in all nations under the survey like

the use of information technology, flexible working hours and work-life


balance. Regarding employee protection, scores were moderate although all

island state constitutions had legislations favouring them while their

application differed. Employee engagement was considered as moderate in

most island states considered from the point of employees at board level and

in key decisions while public unions timidly engaged women in prominent

positions in public unions.

Problem StatementThis research addresses the influence of public sector unions in the Indian

Ocean and the trends that are likely to influence them in collective bargaining.

It is an admitted fact that public unions are strong in most societies since they

are supported by the government and legislation that abound employee

relations. Indian Ocean Islands like the Republic of Mauritius, Madagascar,

the Seychelles, Reunion Island and Comoros have broadly similar

employment relations structures that are mainly guided by the International

Labour Organisation (ILO) initiatives. In between, each government has its

own style of managing the public sector while it is clearly seen that public

bodies operated within a well-defined framework. The central issue posited

that public-sector unions in the selected environments predominate over

private unions owing to advantages like their desire to attract and unionise

members, freedom from the State to recruit members and engage them in

union activities as well as permanent and pensionable jobs that create

security on behalf of the incumbents. As such, public unions remain strong in

the selected environments, are likely to grow steadily in size while they might

not enjoy the same dynamic involvement as private sector organisations. The

question here is that although size matters, it does not reflect a clear

statement of public sector influence over private ones. Today’s unions are

challenged with upcoming issues like reviewing their bargaining power,

developing better employee engagement, seeing that they can adopt


innovative tools to attract and retain members and also engage them in a

more concrete way to ensure their sustainability.

Bargaining PowerA key determinant in trade union power today is their bargaining power. It

illustrates the extent to which unions can bargain collectively with

management. Craver (2008) suggests that representative unions can no

longer sit down with employer agents and simply negotiate the terms they

would prefer to have. In the global economy, they must understand the impact

of their bargaining decisions on firm competitiveness. Public unions are today

keener to bargain with the government as it is their main employer. Quite

often, public unions bargain on key issues like wages, conditions of work and

their right to freedom. In recent times, public unions have apprehended to

some extent the privatisation of certain ministerial departments. This has been

evidenced by the State’s decision to corporatise departments that were either

ineffective in the past or that might have the chance to operate independently

with some good financial support. Unions have viewed privatisation as

negative in most countries under study. Makgetla (1995) argues that while

privatisation might bring greater commercial efficiency, it is typically at the

price of service delivery and developmental priorities. For example, in

Mauritius, the privatisation of water services has been considered as negative

by public associations.

The threat of having a price spike following such a measure has sparked

interrogations both from public unions and society in general. Another issue

that regards the bargaining power of public unions come from the fact that

work conditions are changing in a fast-developing world economy. The 9-4

work concept has been replaced by newer issues like flexible work, working at

odd hours and also providing constant 24/7-hour service to the population.

Such behavioural aspect to change has been noted in most island-nations

under study. REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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New conditions entail longer time at work, adjustment to new work structures

coupled with some impact on work-life balance. In such conditions, workers

unite with their union official to decide upon the direction that the unions are

likely to take. Bargaining power of public trade unions in the Indian Ocean do

vary. In settled economies like Mauritius and the Seychelles, public unions do

fight for their employee rights whenever there are problems facing them. The

legislation wants to make workers feel free to participate in union activities

without fearing that such acts might not be accepted by their employers

(International Cooperation Unit, 2009). In Reunion Island, bargaining power is

stronger as the country follows French legislation with more freedom like

legalised strike action. Madagascar and Comoros, being less financially-

endowed states, have public unions more in crisis situations compared to

Mauritius and Seychelles.

Employee ProtectionPublic union organisations in the island nations of the Indian Ocean follow

broadly similar patterns. Employee protection is supported through permanent

jobs, decent salaries for employees and lower mobility around jobs. Employee

protection might be enhanced if this would address upcoming issues like

ageing, social security and pension schemes. In Mauritius, pension schemes

are paid by officials, the same applies to Reunion Island through ‘côtisation’. It

remains to be seen how employee protection becomes a key bargaining tool

for public unions in the Indian Ocean. Employee protection could have been

taken for granted in a near past where public jobs were fully supported by

government

This was a key attraction factor but, as times changed, with an increasing

public debt ratio to Gross Domestic Product, governments found it hard to

maintain the existing privileges of public employees. To this extent, employees

experienced a certain waiving off of the privileges that they considered as REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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‘sacrosanct’ in the past. Governments in the Indian Ocean have considered

this aspect particularly in the public service which is an important employer in

most countries in the research. There might possibly be lifelong occupations in

the public service but the guarantee is affected by increasing costs of

operation of government services, bureaucracy and inherent inefficiencies

coupled with poor innovative work concepts. Legislation has been reviewed in

Mauritius in 2008 to re-engineer concepts like work conditions, like the right of

employers to lay off workers without less strong argument or pre-requirement

(Employment Relations Act, 2008). Public unions claim that job protection

needs to be consolidated or re-instated as a means of protecting employees.

Privatisation is always considered as a threat because of the change in status

that employees experience and the challenge in work conditions that they face

when their jobs are run either under ‘corporatisation’ or ‘merely under private

hands. Governments also need to safeguard efficiency – that is, ensuring that

the benefits are obtained at the lowest cost (OECD, 2010).

The extension of the retirement age is another hot issue that affects public

unions today. Developed economies like Reunion and Mauritius face the

threat of a galloping aged population resulting from the economic

development that they have undergone over the years. With stable economies

emphasised by higher spending on social security, these economies now

consider the ‘ageing’ factor as a threat. Workers in better health are capable

of staying longer at work and living healthier on being busy at work. There is

some degree of apprehension regarding workers likely to stay longer at work.

Pensions will be only paid if they retire from work and the fear could be that

unexpected circumstances might all too suddenly prevent such employees to

continue working. There is no guarantee that all types of public employees

might stay in good health or remain fit. Quite recently, an eventuality of raising

the retirement age further by two years in Mauritius immediately drew great

concern from public unions about employee protection so far granted by the

public service.REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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Employee EngagementEmployee engagement refers to the extent to which employees are involved in

public sector unions. Macey and Schneider (2008) view employee

engagement as the positive feelings that employees have towards their jobs

and the motivation and effort they put in. So far, with established parameters

for union creation, operation and management, engagement is focused only

on union leaders. Employee engagement is in context limited to indirect

participation like payment of union membership fees and benefiting from

public sector welfare. Engagement is considered more in the form of the

membership of employees but, in States like, the Seychelles and Madagascar,

higher engagement is seen from the economic standpoint of the countries.

The case differs in Mauritius where such engagement is more visible during

collective bargaining concerning wage rises but not in work conditions.

Employee engagement has been an interesting concept among insular

societies. From a historical point of view, labour was imported to such

economies under ‘indentureship’ or slavery. With time passing and industrial

development shaping up the economies, employee engagement has been a

factor sought to create high level of employee identity at work. In modern

settings this becomes a priority because the greater the employee identifies

himself with the job he undertakes, the more he is likely to feel satisfied at

work. Here, the onus of bringing satisfaction of the employee rests upon them

because they are endowed with the representation of employees and

ascertaining how far they might be engaged. If management takes the

responsibility for work engagement, trade unions need to see how they might

benefit from engagement.

To sit at the board level as employee representative is a positive aspect that

public unions might like to see. Further, to find out how to engage employees

in union concerns is another important challenge. Public unions have been REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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seen as ‘one man show’ organisations with influential leaders but with

dwindling attendance in trade union meetings or demonstrations, it has

become imperative to call back employees to support the unions. In stable

economies with well-structured arguments to support and represent the

employee, employees feel a low sense of engagement despite the fact that

they are knowledgeable of problems likely to affect them. Kosuta (2010) states

that engagement becomes a cultural tool in the organisation that sifts and

measures employees, replacing some of the old standards used in

government for evaluation purposes. It would be interesting to integrate

gender as part of employee engagement in this endeavour. Very often women

are not engaged in public unions at the strategic level and sit merely as

members. The opportunity that unions give to women in becoming full-fledged

members and active participants in the public union is a matter that could be

linked with innovation. It is not enough to say that merely increasing the

number of women at union board level will address the problem but the fact of

having women in corporate union boards allows unions to innovate. Gender

issues like women empowerment, welfare and health regarding the female

gender, contemporary issues sexual harassment, single-parent family,

women’s health, could be prioritised on the agenda representing women. In

substance, the agenda looks so fulfilling that this form of engagement brings

some degree of social integration at work. Although this might not sound as a

novel instrument of public unions in advanced countries, the board

representation of public unions also needs some consideration here. The

‘macho’ factor representing male dominance in unions needs to be effectively

addressed. Female engagement is low and merely cosmetic in most States

under study.

The taboo effect of not representing women in unions could be a factor

illustrating the weakness of public unions to innovate. At the private level, the

discrimination remains visible while the gap in gender representation is

minimised in the public sector. There have been few initiatives given to better REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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represent women in public unions and it remains to be seen whether the role

is merely cosmetic or simply a representation of ‘feminism’ on board. As the

public sector is generally less discriminatory compared to its private

counterpart, it can be reasonably said that there is room for improvement in

the public unions and possibly an innovation on bringing the gender ratio a

little more equitable in public unions. Saks (2006) comments that engaged

employees are more likely to have a high-quality relationship with their

employer leading them to also have more positive attitudes, intentions or

behaviours.

Limitation and ConclusionIt is not altogether easy to create a research instrument in evaluating trends in

public sector engagement in employment relations in more than one country.

Specialists from different countries might be needed for insightful research.

This paper seeks secondary information available from websites and selected

research articles that purport the contribution of public sector unions to the

respective economies. It makes an appreciation in the form of comparative

checks among the countries in the survey. It is generally seen that the well-

organised structure of public unions in each of countries in the Indian Ocean

allows room for a good and appealing union membership. The stability is

caused by the surrounding conditions of employment, government job, public

sector framework support and decent wages. This trend is likely to

predominate over private unions that are shrinking in size and less likely to

grow.

Private unions will matter more in economies like Madagascar or Comoros

given their existing economic condition while public unions might have an

extended power over them in Mauritius, Reunion and Seychelles. Insofar,

public union engagement still prevails but will be forced to become stronger

with changing times like privatisation, foreign direct investment and a more

precarious economic environment that calls for higher privatisation. Through REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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tradition and history, public unions will remain strong but their long-term

sustainability is still under question. Schillinger (2005) summarises that in

many countries trade unions remain an important political force which has to

be taken into account by the political power holders. Despite their massive

membership losses, trade unions continue to be one of the very few societal

organisations in Africa with a sizeable constituency, country-wide structures

and the potential for mobilising members on social or political matters.

5.3 THE MAURITIAN PUBLIC SECTOR

Public Sector comprises• The Civil Service

• Parastatal Bodies

• Local Government Institutions

• State Owned Enterprises

Upcoming Public Service Bill• The need for a Public Service Act is strongly felt

• The expectations of trade unions are high.

• We are looking for consultations with government on this particular

issue.

• We want to be put in the picture by having access to a copy of the Bill.

Social Dialogue

• There are several forums for regular consultations

• Most of the time the views are not taken on board

• The National Economic and Social Council has been dismantled

Privatisation

• Outsourcing

• The threat of privatising a large chunk of the public service is looming REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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• TiSA: Trade in Services Agreement

• TiSA is a threat to the population

• Anti TiSA platform

SUB THEME FOUR (4) – SOCIAL SECURITY AND PROTECTION IN AFRICA

6.1 Towards a rights-based social protection system in Botswana

AbstractSocial protection in Botswana has metamorphosed through a number of fairly

distinct phases. The paper unpacks the distinct features of each phase and

urges the government to embed social protection in the country’s constitution

to realise a truly rights-based social protection system. During the pre-

Independence (Botho) Phase (1900-1965) Botswana (then Bechuanaland)

functioned as a British Protectorate and a majority of the people relied largely

on a non-formal social protection system predicated on a subsistence

economy. The system, driven by the notion of botho, tended to be self-

regulating, with emphasis on solidarity and cooperation, imploring individuals

and families to care for the needy in their midst out of a moral obligation

(Rankopo et al 2007). The system flourished both during the colonial era and

in the early years of independence.

The post- Independence phase ran between 1966 and 1975. At independence

in 1966, the country was counted among the poorest nations of the world. A

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government interventions in both economic and social welfare issues

(Ntseane, 2007). The country operated with grossly insufficient resources with

service provision being apparently ensconced in the notion of charity. Where

charity is the guiding philosophy, provision of resources is at the discretion of

the state (Plagerson, 2014) meaning, in the case of Botswana, only the

deserving poor received handouts. Thus, only a limited number of people

across the country received benefits (Bitso, 2012). The state, with limited

consultation, decided to whom, and for how long, a social protection benefit

would be granted. The state also decided on the nature and size of the

benefit.

The promulgation of the 3rd National Development Plan (1970 – 1975),

appeared to further propel the charity philosophy, with the government

expressing its intention to introduce a formal social protection system.

Initiatives introduced included a Home Economics Unit, Youth Brigades, Youth

Clubs, and the Basarwa Development Programme (Ntseane, 2007). The

discovery of massive diamond deposits in the 1970s ushered in an era of

significantly improved resource base which set the tone for improved social

provision (Bauer & Taylor, 2005). The National Development Plan period

1973-1981 inter alia, witnessed the launching of a social protection regime

that would address the prevailing social challenges, including poverty and

destitution (Ntseane & Solo, 2007).

A period which can be referred to as the ‘caring state’ phase ran from 1975 to

1997. Thanks to the diamonds boom, the government gradually shifted from

providing social protection on the platform of charity to embracing the caring

state philosophy. The Nordic Welfare States have carried the label “caring

states’ (Leira, 1994) because of their commitment to catering for the basic

needs of all their citizens. In the case of Botswana, the notion of a caring state

philosophy is aptly articulated in the country’s Vision 2016 (launched in 1997),

one of whose pillars emphasized the need to promote á ‘compassionate, just

and caring nation’. This policy document spelt out the country’s preferred REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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development path, with a brief including a resolve to advocate for the

provision of “an adequate and dignified safety net for those who are in poverty

in a way that does not encourage dependency and provides a means of

escape from the poverty trap and a return to productive society.

The current phase can be said to have been launched around 1997. Through

good governance and fiscal discipline, Botswana has transformed itself from

one of the poorest countries in the world to attaining upper middle-income

status. In the 1990s the country’s real GDP growth averaged 8.5 percent and

remained buoyant at 6 per cent in the 2000s (RHVP, 2011). Today, Botswana

is one of the few countries in Africa that self-finance (its) social protection

programmes (4% of GDP in 2012/2013). While considerable numbers of

citizens have benefited from a wide range of policies and acts that address

social protection, shortfalls have been identified and these have included lack

of effective monitoring and evaluation mechanisms, lack of clear mechanisms

for effective redistribution of the national wealth, lack of coordination, poor

implementation, ineffective utilization of resources and lack of accountability.

Conclusionwhile enormous progress has been made in efforts to provide comprehensive

social protection in Botswana, challenges remain evident. It is the argument of

the author that, to make marked headway, it would be pertinent for the

authorities to ensure the social protection system is embedded in the country’s

constitution as such a move would ensure the government can be held

accountable. This, in turn, would ensure that decisions such as who gets what

benefits and for how long, would then not remain simply a preserve of the

state alone. The country would have realized the seemingly elusive goal of a

rights-based social protection system.


6.2 Social Security, Gender and Legal Plurality: a challenge for harmonisation in Southern African development community

IntroductionThe Southern African Development Community (SADC) comprises 15

countries in Southern Africa that came together in 1980 with the initial aim of

coordinating development projects in order to minimise dependence on the

then apartheid South Africa. In 1992 the regional group gained legal autonomy

and has since operated as a regional block on much broader issues than

before. SADC’s main objectives include to achieve development and

economic growth, alleviate poverty, enhance the standard and quality of life of

the people of Southern Africa, support the socially disadvantaged through

regional integration; and to strengthen and consolidate the long-standing

historical, social and cultural affinities and links among the people of the

region. The objectives are based on principles of sovereign equality, solidarity,

human rights, democracy and rule of law among others. One area that the

group has been working in harmonising its standards and regulation is in

social security and gender.

Increasing levels of poverty and calls for the reduction or elimination of

poverty have brought the subject of social security to the fore. The ILO

(International Labour Organisation) has also contributed to increasing interest

in the area under its programme on extension of social security to the informal

sector in Africa and the Global Campaign on Social Security and Coverage for

all in Africa. Within the region the SADC Charter of Fundamental Social Rights

in SADC highlights the importance of social security as one of the human

rights under serious threat. The formation of a grouping of specialists in social

security in the SADC region has given extra impetus to social security as an

urgent area in need of transformation and harmonisation. This paper

highlights some challenges to harmonisation of regulation on social security

and gender in the SADC region. The paper argues that efforts to harmonise REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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regulation of social security in the region are characterised by a lack of

appreciative empirical data and takes a legal centralist approach, among other

issues, which fail to reflect the lived realities of the majority in the region,

especially women and may therefore not lead to the intended transformation.

The majority of women in the region continue to survive risks of life and

subsidise most of the formally recognised forms of survival despite serious

exclusion and exploitation. Such survival is taking place within a context of

complex plural regulatory frameworks that engender differential social security

and insecurity.

Unless the harmonisation process reflects this reality, it will only perpetuate

the gap between practice and rhetoric and the gender disparities in social

security. The paper contends that the harmonisation process should be based

on grounded inquiries on people’s experiences in surviving risks of life; reflect

the plurality of the systems including the regulatory frameworks and how these

differently impact on men and women.

Situational Overview• Increasing levels of poverty - increasing vulnerability to shocks and

risks of life within the region with the majority of people struggling to

survive: more women than men.

• Causes of increased vulnerability are gendered, historical and multi-

faceted: political, economic, social and legal factors.

• Initial conceptions of social security (ILO): coverage predominantly

focused on employment and the formal sector and therefore excluded

women more than men.

Causes of exclusion of women in SP• The restriction of coverage to employees;

• conceptualisation of social security from a male bread winner model

and economic dependence for women; REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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• intra-household gendered inequalities in access to resources

• the distinct labour market experiences of women and life cycle events;

• non- recognition of work done by the majority of women (unpaid work)

and the burden of care work on women

• Gender neutral laws and regulations

It is important for the region to:

• build consensus on broadening the concept of social security from a

gender perspective in view of existing gender inequalities

• challenge restrictive and exclusionary traditional male breadwinner,

female dependent conceptions of social security

• pay attention to how the social security responses meet needs based

on people’s own experiences especially unpaid work of women.

Harmonisation: SADC Social Charter• Article 10: Member States shall create an enabling environment so that

every worker in the Region shall have a right to adequate social

protection and shall, regardless of status and the type of employment,

enjoy adequate social security benefits.

• Article 16 of the Social Charter provides for the development of

institutions and structures which shall promote social legislation and

equitable growth.

• The gender dimensions of the harmonisation process on social security

are dealt with from an equality and non-discrimination perspective under

Article 6 of the Social Charter consistent with SADC Gender and

Development Declaration.

Code of Social Security in SADC• SADC Code elaborates on the provisions of the Charter of Fundamental

social rights in SADC.


• It provides for social allowances, social assistance, social insurance,

social protection and social security for all genders, age groups and

disabilities among others. (broadened concept of social protection)

• Equal coverage of and access to social security – including equality in

receiving social security benefits – between men and women, (formal

equality).

• States should support gender sensitisation in the social security system

inclusive of addressing women's special needs and circumstances, and

introducing appropriate affirmative action programmes (substantive

equality)

• States should abolish all discriminatory laws, customs and practices in

their respective social security systems. (Culture)

• Adopt and promote policies that ensure that workers, particularly female

workers, are able to balance occupational and family obligations. (care

work).

Conclusion• Harmonisation from a gender perspective is imperative for the region

• Progress has been made with the development of the Code

States must address issues of exclusion of the majority of women with a focus on:

• Inclusive conceptions of work – include women’s unpaid work

• Publicise care work as it overburdens women

• Right to social security and right to culture / religion

• Strengthen inclusive and universal social security programmes

6.3 Social assistance national legal frameworks in Africa: constitutional and statutory perspectives*


Overview and backgroundThis chapter reflects on different dimensions of the legal framework pertaining

to social assistance in Africa. The introductory part makes some remarks

about the understanding of what a rights-based approach to social assistance

implies. This is followed by a reflection on the value of a legal framework for

social assistance. In this regard, emphasis is placed on the role of African

constitutions, as well as laws and other legal instruments. The penultimate

part contains a reflection on accountability mechanisms, including among

others the role of supervisory institutions, governmental and parliamentary

oversight, the developing area of social accountability, and the importance of

well-developed complaint and appeal mechanisms. Some conclusions are

drawn in the final part.

Especially during the last two decades, social assistance schemes, as is the

case with universal, conditional and unconditional non-contributory

programmes, have been introduced or expanded on a comprehensive scale in

Africa. The impact of many of these programmes has been extensive. The

income protection they have provided has significantly contributed to reducing

poverty, increasing school attendance, improving health outcomes, reducing

child labour and enabling some beneficiaries to engage in entrepreneurial

activities. Moreover, the indirect or distributional role of these schemes has

been remarkable, as the income received through non-contributory

arrangements has been instrumental in supporting many family members.

A rights-based approach to social assistanceThe recognition of social security (also in the form of social assistance) as a

human right and its incorporation in international and African legal instruments

is discussed in some detail below. Here it is important to note that this is

closely associated with what has become known as a rights-based approach

to social security (and therefore also social assistance). The notion of a rights-


based approach has been described in different ways by authors. In essence,

in relation to social security (and social assistance) this approach implies that:

• social security should be considered as a right and entitlement and

not just a matter of charity; citizens should therefore be able/enabled

to claim and enforce their entitlement to social security;

• there is an obligation on states to recognise, guarantee and protect

social security;

• certain core obligations and minimum standards may be expected in

assessing the compliance with the obligation to provide social

security, in particular in relation to vulnerable groups; and

• there is a deliberate focus on mechanisms to keep those who design

and deliver social security accountable and to involve those affected

by and benefitting from social security interventions.

Essence of a rights-based approach• Social security should be considered as a right and entitlement and not

just a matter of charity; citizens should therefore be able/enabled to

claim and enforce their entitlement to social security;

• There is an obligation on states to recognise, guarantee and protect

social security;

• Certain core obligations and minimum standards may be expected in

assessing the compliance with the obligation to provide social security,

in particular in relation to vulnerable groups; and

• Those who design and deliver social security should be kept

accountable and involve those affected by and benefitting from social

security interventions.

African Constitutions: Social assistance and welfare anchored in African Constitutions


40 coun-tries

14 coun-tries

ConclusionsThe AU's Social Policy Framework (2008: par 33(a)) urges the recognition of

social security as a state obligation, with provision therefor to be made in

national legislation. Simultaneously, increasingly in many African constitutions,

the right to social protection generally and social assistance in particular, has

come to be appreciated as a human right. This implies that, in addition to the

notion of this implying a state obligation, this right accrues to individuals and

can be enforced as such. These developments, alongside several other

considerations discussed in this contribution, underscore the importance of

adopting an appropriate legislative framework. In this way, the social

assistance legal and policy framework in African countries contributes to the

notion and impact of a rights-based framework for social assistance. Important

achievements have been made; additional reforms will support the further

unfolding of this in Africa.

African countries that place social assistance in a rights-based framework,

effectively acknowledge that users of the system – e.g. applicants for and

beneficiaries of social assistance transfers – are not mere passive recipients

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adopting a rights-based approach is an expression of respect for human

dignity and transforms users of the system into active participants.

6.4 The Façade that is Social Security and Protection in Malawi:Who is Benefiting?

AbstractSeven years after the enactment into law of mandatory, universal social

security and protection system in Malawi, the majority of the workers are yet to

benefit. The system was hurriedly put in place without considering the

negative economic environment in which most employers were operating in.

Further, the system was almost dumped on employers and workers, most of

whom were ill-prepared for its administration. The default rate of the

mandatory contributory pension and non- contributory gratuity schemes is

overwhelming. Overseer and enforcement institutions, like the Reserve Bank

of Malawi, Ministry of Labour and the Industrial Relations Court face

implementation challenges. The Reserve Bank of Malawi, which is the

supervisory institution, is threatening non-compliant employers with penalty

interest on arrears on contributions while social partners are calling for law

review. This paper argues that threats and law revision will not bring benefits

to the worker. The system has failed. It needs major overhaul.

BackgroundSocial security refers to national mandatory contributory or non-contributory

social protection schemes. These are normally based on the principles of

universality (i.e. covering the whole of the country’s population) and unified

general coverage against the risks of illness, accidents, old age,

unemployment etc and loss of revenue occasioned by family responsibilities.

According to the definition, social security is not restricted to employment or

labour matters only. It has a wide application that covers all sectors of human


life including work life, health, housing, family responsibilities, disability,

dependent children, old age, etc.

In Malawi, the only form of State sponsored universal social security is in the

health sector, where public health facilitates provide free health services.

Other forms of social security applied in Malawi by the State are not universal

because they are administered in selected districts or areas for special

interest groups; the poorest members of the society. These groups have no

means to income security. These schemes are usually time specific and

temporary in nature, for instance, direct cash handouts3, food for work, school

feeding, Kuzigulira malo (allocation of land), agricultural subsidy, farm input

subsidy programme (fisp) and similar programmes aimed at cushioning

members of the society from the hazards of social insecurity in times of crisis.

This paper discusses in general terms the status of social security and

protection in Malawi. It is an overview discussion because the system is fairly

new and in the process of developing. The paper opines that the Malawi

Government has, for a considerable period of time, been contemplating

providing social security and protection to its people. What has been a

challenge is perhaps the form that the system should take. This is evident

from the labour legislation that preceded the pre-Constitution Employment Act

of 1966, namely, the Employment Act of 2000 (hereinafter referred to as the

Act of 2000) in which without any preamble or elaboration the legislature

introduces social security in a number of provisions. Within the Act of 2000 the

legislature provides for payments to be made to employees after termination

of employment. However, these payments could not be referred to as a form

of social security.

They were more of lump sums of money received by an employee after a

period of service with an employer. There was no form of regulation on the

conduct of this lump sum other than that it should be paid within a specified REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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time. It was paid depending on manner of termination meaning that some

employees were excluded from receiving it although they may have earned it

due to length of service with one employer. The only form of secured earnings

which did not depend on manner of termination were pension funds. However,

provision of pension scheme was at the discretion of the employer through

contract.

After much controversy on the law as it stood on these terminal pay-outs, the

legislature amended the Act of 2000 to make for provision for situations where

an employee would be entitled to a pay-out after termination of employment

regardless of the manner of termination and regardless of whether or not their

contracts provided for pension. This amendment has characteristics of social

security and protection. This view is buttressed by the fact the Act of 2000

itself seems to have social security and protection at the back of its mind

although the concept is not articulated.

This view is also confirmed when one considers that the amendment comes

on the background of global call, through the International Labour

Conventions and Standards of the International Labour Organisation (ILO) for

all States to conform to international standards on social security and

protection. At regional level, SADC also calls for its members to establish and

maintain a system of social security. Of the different kinds of social security

schemes or systems available to a State, it seems that Malawi chose to go for

employment driven social security scheme as its tool to complying with the

international standards; the mandatory National Pension Scheme.

Social protection schemes prevailing on the labour market are meant to

provide workers with income security. Income security in Malawi has since

2010- 2011 become mandatory. It is covered in three schemes namely;

contributory payment (pension), non-contributory payment (gratuity or

pension) and punitive payment (severance allowance). These schemes are

aimed at cushioning the working class and their families from risks of illness, REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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accidents, old age, disability, orphan hood, unemployment etc. This Paper

analyses and discusses the various provisions of the Employment

(Amendment) Act 2010 (hereinafter referred to as Act of 2010) which purports

through its characteristics, to cater for social security and protection in Malawi.

The paper argues that from a practical view point, social security and

protection in Malawi is a façade. The reasons for this view are as outlined

below, in the form of legislation and how it is applied in practice, the Industrial

Relations Court cases, on disputes relating to pension, the role of the

executive arm of government through the line Ministry on supervision for

compliance and to some extent, and in considering the question of who is

benefitting from the pension regime, the paper looks at the role of insurance

companies and banks.

General Challenges on ImplementationBased on the case study above, clearly there are challenges with the

operation of the National Pension Scheme. The view is supported by random

interviews and media reports that show that the main challenges relate to:

(a) Complicated legal requirements;

(b) low levels of awareness of the procedures;

(c) non-placement of employees on pension;

(d) non-placement of employees on group life insurance policy;

(e) non- remittance of contributions;

(f) harsh economic environment;

(g) Rising arrears owed by government;

(h) Complicated Institutional framework; and

(i) Poor operating environment, among others.


The law itself is not self -regulating. There is constant reference to other

pieces of legislation, directives and enforcement agencies. The law has

created various institutions for purposes of managing, administering and

enforcing the law. This has created bottlenecks in as far as operation of the

scheme is concerned. Beneficiaries are at the mercy of these institutions,

starting from the employer at the point of creating the pension to remission of

the funds to administrator and to application for payment and complaint

mechanism.

Employers Consultative Association of Malawi (ECAM), the umbrella body of

employers’ organizations in Malawi is a relevant player in operation of the

Pension Act. It confirms that lack of awareness is hindering operation of the

scheme. The Vice President of the association, Mr. Sean Longwe, is reported

to have said that as a player, “we have a strict responsibility to stakeholders

such as the regulator to ensure compliance. It is our prerogative to continue

enhancing the capacity of employers on matters relating to the workplace. We

have a duty to collect as much information through continuous consultation

with members for us to advance issues of interest to relevant bodies.” He then

urged employers to remit pension contributions to avoid penalties. The

pension fund regulator acknowledges challenges relating to awareness. Some

employers argue that, failure to comply is a result of lack of awareness of the

procedures that must be followed to conform to the new pension

requirements. This explains lack of remittances.

The rate of non- remission is high considering statistics from the Reserve

Bank of Malawi which indicates that as at December 201713, pension

contributions stood at Malawi Kwacha 5.2 billion. Although this was an

improvement from the previous report, the default rate based on non-

remittance was higher with some employers still remaining with a significant

amount of contribution arrears, which stood at Malawi Kwacha 9.8billion in


Dec 2017. This negatively affected accumulation of pension contributions,

(page 27 of the report).

As a result of this default, the Reserve Bank of Malawi has threatened to

Name and Shame Defaulters. “The Reserve Bank of Malawi has warned that

it will name and shame companies that are not remitting pension deductions

to fund administrators. The central bank says this is one way of alerting

employees that their employer has been playing with their retirement savings.”

“Employers should remit contributions promptly within 14 days to avoid being

penalized. The bank will increase compliance inspections in conjunction with

Ministry of Labour, Youth, Sports and Manpower Development …and will

publish a list of all non-complying employers in the local print media and

prosecute them” (page 14).

Apart from non-remission of funds, the report also shows that pension fund

growth is affected by counterparty default, market risks, volatility of asset

prices, downward revision in the policy rate, re-investment in interest bearing

assets etc. Pension Fund Managers share the views of the Reserve Bank of

Malawi. One of the biggest insurance companies in Malawi, Nico Life

Insurance Company’s, Chief Executive Officer, Mr Eric Chapola, was said to

have decried the rate of non- remittances. He advised that if the contributions

are not remitted, the employee would get less returns as they would miss out

of investment interest. He called upon employers to remit the funds so that the

money can be invested and yield high returns which would ensure that after

retirement an employee maintains a working-class lifestyle.

The business community has attributed non-remittances to harsh economic

environment of doing business in Malawi. This is echoed by views of the

President of the Indigenous Business Association of Malawi (Ibam), Mr. Mike

Mlombwa, who said that operating environment remains tough for local

businesses, characterized by shrinking business opportunities and

unfavourable borrowing terms16. He lamented that, “from a theoretical point of REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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view, one could argue that things are heading in the right direction by just

looking at inflation, interest rates and other indicators. But from where we are

seating, the practical point of view, things are not working. There is no

business. Businesspersons are just walking around just like mad men. Every

day we are getting complaints that things are not okay”, (at page 11).

The private sector has also bemoaned the rising arrears owed by

Government. The Malawi Government is the biggest customer for the private

sector businesses. However for some time the private sector, through the

Malawi Confederation of Chambers of Commerce and Industry (MCCCI) have

decried the tendency of Government not to pay for goods and services

rendered to it by private businesses. It is reported that the private sector is

owed Malawi Kwacha 206 billion in unpaid arrears. This state of affairs is

contributing to the worsening economic conditions experienced by employers

in business. The International Monetary Fund (IMF) is reported to have raised

serious concerns about the situation, (Business News, The Nation, 20 April

2018).

The harsh economic environment has forced many companies to restructure

their organisations by downsizing the workforce. Business News in The Nation

of 11 April 2018, reported of retrenchments at Nampak Malawi the largest

paper and board packaging company in Malawi established in 1969 and

registered under the Companies Act. It is reported that it has retrenched

almost half of its workforce. The reasons cited for restructuring are poor

operating environment, shrinking market, competition and energy /power cuts.

The Ministry of Labour, Youth, Sports and Manpower Development confirms

the trend. It reports that 3000 workers were laid off in 2016/2017. Currently,

thirty-six companies have expressed intention to the Ministry to retrench their

employees. This is just a tip off the ice berg as most employers retrench

without notifying the Ministry. Therefore, there is no way of knowing the exact

figure.REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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ConclusionThe case study is proof that the National Pension Scheme, which is the

chosen form of social security and protection in Malawi is facing various

challenges. These range from lack of awareness of the law to harsh economic

environment. The current default rate in pension remittances is an indication

that employees or their families are not benefitting from the scheme. The

scheme is not performing to the requisite standard. The Malawi Government

may wish to redesign the scheme so that it complies with international and

regional standards on provision of social security and protection to its citizens.

SUB THEME FIVE (5) – EMERGING ISSUES IN LABOUR LAW

7.1 The Right to Indefinite Employment of Temporary Employees in South Africa: Is the Model Effective and Viable?

Introduction

On 27 April 1994, South Africa became a constitutional democracy with a

universal franchise. The Constitution is the supreme law of the country. Its

constitution contains a Bill of Rights. Section 23 of the Constitution of South

Africa provides that “Everyone has the right to fair labour practices.” Despite

this provision only persons defined as employees are protected by labour

legislation. Certain employees are furthermore excluded from the operation of

labour legislation, although they fall within the statutory definition of

“employee”. These include members of the National Defence Force, the

National Intelligence Agency, the SA Secret Service and SA National

Academy of Intelligence. In an ideal labour market employee would obtain a

job commensurate with their skills and experience and be given opportunity to

develop as well as fair wages and conditions of employment

.


In an imperfect market those conditions are present for a small section of the

workforce – mainly high-income earners. For less skilled labour market

participants few prospects of success exist and they have a limited potential to

improve their economic welfare. They also face considerable risk in regard to

employment security and working conditions. They are consistently in a

precarious and vulnerable position in the labour market. In order to hold and

protect vulnerable employees, the state needs to legislate for protection and

job security. This paper highlights one aspect of protection, namely fairly

recently introduced in South Africa – namely protection against temporary or

fixed-term employment by employees becoming deemed permanent as a

result of the operation of law.

The model of protection introduced in South Africa will be explained and

consideration will be given to the exceptions regarding fixed-term employees

being deemed-permanent. The protection is aimed at vulnerable employees.

In this paper we also consider whether the test for vulnerability in South Africa

is sufficiently robust – which may also be implemented in other countries.

Fixed-term employment

Fixed-term employees as atypical and contingent employees are in a

particularly weak bargaining position in an employment relationship. It has

become common practice to treat fixed-term employees differently to their

permanent colleagues. The Labour Relations Amendment Act of 2014, which

took effect on 1 January 2015, introduced provisions to give labour broking

employees, employees employed on fixed-term contract, and part-time

employees’ greater protection than that which was previously afforded to

them.


The provision relative to fixed term contracts do not:

• Apply to employees earning more that the statutory threshold (presently

R205 422.30) per annum;

• An employer that employs less than 10 employees, or that employs

more than 50 employees and whose business has been in operation for

less than two years; and

• An employee employed in terms of a fixed-term contract, which is

permitted by any statute, sectoral determination in terms of the Basic

Conditions of Employment Act or collective agreement.

The exclusion of employers employing less than 10 employees and those

employing more than 50 employees and whose business has been in

operation for less than two years are mainly aimed at providing flexibility for

small and medium enterprises. In terms of section 198B (3) an employer may

employ an employee on a fixed-term contract or successive fixed-term

contracts for longer than three months only if either the nature of the work is of

a limited or definite duration or the employer can demonstrate a justifiable

reason contained in section 198B (4) of the Labour Relations Act.

• Replacing another employee who is temporarily absent from work;

• Employed on account of a temporary increase in the volume of work

which is not expected to endure beyond 12 months;

• Student or recent graduate who is employed for the purpose of being

trained or gaining work experience in order to enter a job or profession;

• Employed to work exclusively on a specific project that has a limited or

defined duration;

• A non-citizen who has been granted a work permit for a defined period;

• Employed to perform seasonal work;

• Employed for the purpose of an official public works scheme or similar

public job creation scheme;


• Employed in a position which is funded by an external source for a

limited period; or

• Has reached the normal or agreed retirement age applicable in the

employer’s business.

It is notable that the list of examples is not a closed list and an employer may

employ an employee for a limited duration so long as there is an objectively

reasonable ground to do so. It is required that longer, permissible, fixed-term

contract must be in writing and the reason for the longer term must be stated.

If the requirements in section 198B (3) are not met the employee is deemed to

be employed on an indefinite basis. An important further provision (section

198B (8)a) is that an employee who is employed for longer than 3 months

must not be treated less favourably than an employee employed on a

permanent basis performing the same or similar work unless there is a

justifiable reason for different treatment. Justifiable reasons that could be

relied upon are seniority, experience, and length of service, merit, quantity or

quality of work performed or any other non-discriminatory reason. Another key

provision is that employers must provide employees employed on fixed-term

contracts and permanent employees with equal access to opportunities to

apply for vacancies at the employer. Moreover, where a fixed-term contract

exceeds 24 months an employee is entitled to an amount equal to one week’s

remuneration for each completed year of employment. This provision is similar

to the severance pay provision in the Basic Conditions of Employment Act.

It is also important to note that section 198B (6) provides that an offer to

employ an employee on a fixed-term contract must be in writing and also state

the reason for that contract. Section 198B (7) further places the burden of

proof on the employer in the event that there is a dispute relating to a fixed-

term contract in that it provides that the employer must prove that there was a

justifiable reason for fixing the term of the contract and that the term was

agreed upon.


Part-time employment

Section 198C of the LRA deals with part-time employees who earn below the

threshold. A part-time employee is defined as an employee who is

remunerated wholly or partly by reference to the time that the employee works

and who works less hours than a comparable full-time employee.

This section does not apply to:• Employees who earn more than the threshold;

• Employees who ordinarily work less than twenty fours a month for an

employer;

• During the first three months of continuous employment with an

employer;

• An employer who employs less than 10 employees or who employs less

than 50 employees and whose business has been in operation for less

than two years unless the employer conducts more than one business

or the business was formed by the division or dissolution for any reason

of an existing business.

In order to ensure that part-time employees are not subjected to differentiated

treatment when compared to full-time employee’s section 198C (3) (a) of the

LRA provides:

Taking into account the working hours of a part-time employee, irrespective of

when the part-time employee was employed, an employer must:

• Treat a part-time employee on the whole not less favourably than a

comparable fulltime employee doing the same or similar work, unless

there is a justifiable reason for different treatment.

This section like section 198A (5) of the LRA also refers to the phrase "on the

whole not less favourably". Section 198C (6) of the LRA sets out the

requirements that must be considered when making a comparison with a full-

time employee. The part-time employee must choose a full-time employee


employed by the employer on the same type of employment relationship who

performs the same or similar work in the same workplace or if there is no

comparable full-time employee in the same workplace, then a comparable full-

time employee employed by the employer in any other workplace. The

comparable full-time employee must be in the same workplace as the part-

time employee except where there is no comparable full-time employee in the

same workplace then the employee may identify a comparable full-time

employee who is employed by the employer in any other workplace.

Sections 198A, 198B and 198C of the LRA state that an employee must be

treated "on the whole not less favourably" and "not less favourably" unless

there is a justifiable reason for the different treatment. To this end, section

198D (2) of the LRA provides that a justifiable reason would include that the

different treatment is as a result of the application of a system that takes into

account the following:

• Seniority, experience, length of service;

• Merit;

• The quality or quantity of work performed;

• Any other criteria of a similar nature; and such reason is not prohibited

by section 6(1) of the EEA.

Sections 198A (5), 198B (8)(a) and 198C (3)(a) of the LRA dealing with equal

pay for temporary service employees, fixed-term contract employees and part-

time employees do not require the respective employees to prove unfair

discrimination in order to succeed with an equal pay claim in terms of either

section. The sections further do not require an employee to prove a prima

facie case of discrimination before the burden will shift to the employer to

prove that the discrimination is not unfair as there is a justifiable reason for the

differentiation. Section 198D (2) provides examples of what would amount to a

justifiable reason and requires that such reason should not be prohibited by

section 6(1) of the EEA. The interpretation that one gains from this section is

that the employer will have to prove that the ground is not prohibited by REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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section 6(1) of the EEA as it is the one who would have to advance a

justifiable reason for the differential treatment in order to successfully defend

an equal pay claim in terms of sections 198A (5), 198B (8)(a) and 198C (3)(a)

of the LRA, respectively. This would mean that an employee's burden of proof

will be limited to the following:

a) In terms of section 198A (5) of the LRA an employee will have to prove the

following:

• that he/she is not excluded from the protection of the section;

• that he/she is deemed to be an employee of the client in terms of

subsection 3(b); and

• that he/she performs the same or similar work as an employee of the

client but is treated on the whole less favourably.

b) In terms of section 198B (8)(a) of the LRA an employee will have to prove

the following:


• that he/she is employed on a fixed-term contract for longer than three

months; and

• that he/she performs the same or similar work as a permanent

employee of the employer but is treated less favourably.

c) In terms of section 198C (3) (a) of the LRA read with section 198C (6) of the

LRA an employee will have to prove the following:


• that he/she is employed as a part-time employee; and

• that he/she performs the same or similar work as a comparable full-time

employee of the employer but is treated on the whole less favourably.

Once the employee has discharged the onus as set out above, then the onus

will shift to the employer to prove that there is a justifiable reason for the

different treatment and that the reason is not prohibited by section 6(1) of the

EEA. This is a marked difference as opposed to how an equal pay claim

would be dealt with in terms of the EEA. In terms of the EEA a claimant would

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(arbitrary ground). Section 198D (2) of the LRA does not require the employee

to prove that she was unfairly discriminated against by the employer as it

merely states that the justifiable reason advanced must not be prohibited by

section 6(1) of the EEA which states the following:

No person may unfairly discriminate, directly or indirectly, against an

employee, in any employment policy or practice, on one or more grounds,

including race, gender, sex, pregnancy, marital status, family responsibility,

ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV

status, conscience, belief, political opinion, culture, language, birth or on any

other arbitrary ground.

This would mean that the employer will have to prove that the justifiable

reason is not prohibited in terms of section 6(1) of the EEA as it is the party

that will advance reasons for the different treatment. This is confusing as it is a

departure from the EEA with regard to proving an unfair discrimination claim.

Sections 198A-198C of the LRA thus contains a novel equal pay legal

framework which does not require an employee to prove that she is paid less

as a result of the employer discriminating against her unfairly. It is the

employer who bears the onus to prove that the differential treatment is based

on a justifiable reason and such reason is not unfairly discriminatory.

Vulnerable Employees.

Attempting to define vulnerable arrangements in a manner that is sufficiently

flexible to reflect the realities in employment the ACTRAV symposium has

devised a definition that accounts for two contractual categories and four

working-condition categories that characterize vulnerable work:

Contractual arrangements:


• The limited duration of the contract (fixed term, short-term, temporary,

seasonal, day labour and casual labour)

• The nature of the employment relationship (triangular and disguised

employment relationships, bogus self-employment, subcontracting and

agency contracts)

Precarious conditions: Low wage

Poor protection from termination of employment

Lack of access to social protection and benefits usually associated with

full-time standard employment

Lack of or limited access of workers to exercise their rights at work

It seems therefore that vulnerability in employment consists of two parts (1)

monetary vulnerability that is earning below the threshold and non-monetary

vulnerability, which satisfies the other criteria in the definition above.

Non-standard employment encompasses part-time work, employment on a

short term or time-limited contract basis and employment through temporary

employment services as well as own account self-employment. On-vulnerable

employment or standard employment is an employment relationship that is

fixed-term or permanent with earnings above the earnings threshold.

The ThresholdTo distinguish between vulnerable fixed-term employees who enjoy the

protection of section 198B of the Labour Relations Act the earnings threshold

provided for in the Basic Conditions of Employment Act of 1997 is used. In

order to evaluate the scope of protection of atypical employees in South Africa

it is necessary to investigate this yardstick of vulnerability. Recognising the

legacy that apartheid legislation had on the employment of mostly black


workers the BCEA was introduced with the purpose of ensuring social justice

through the establishment of basic standards for employment regarding issues

such as leave, working hours, and other conditions of employment including a

mechanism to establish by means of sectoral determinations minimum wages

in unorganised sectors employing vulnerable workers.

The provisions of Chapter 2 of the BCEA containing maximum hours of work

per day and week extra pay for overtime (which needs to be agreed upon) and

work on Sundays and Public holidays are only applicable to employees who

earn remuneration equal to or below the threshold. Section 6 of the BCEA

provides for the Minister of Labour to periodically publish the earning threshold

on the advice of the Employment Conditions Commission (ECC) that limits the

legislative protection offered to workers earning above the threshold. This

earnings threshold was first introduced in 2002 and it was set at the earnings

level of a public-sector manager earning R89 445.00 at the time. The current

threshold stands at R205 433.30 per year. As a result of the promulgation of

the earnings threshold the BCEA excludes all workers who earn in excess of

the threshold from the provisions prescribing ordinary hours of work, overtime,

compressed working week, average hours of work, meal intervals, daily and

weekly rest periods, the double pay for work on Sundays, night work, and

work on public holidays. (These protections are also not applicable to senior

managerial employees and employees engaged as travelling sales staff and

employees who work less than 24 hours per month.

The amendment to the Labour Relations Act as well as the Basic Conditions

of Employment Act in 2002 also introduced a statutory presumption of

employment, which applies to persons earning less than the earnings

threshold. A person earning below this amount and who renders service to

another is presumed, regardless of the form of the contract, to be an

employee if one or more of several factors is or are present in the relationship.

In this context then, the threshold is also used to assist vulnerable workers

who are treated as contractors by employers who wish to escape the REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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consequences of protection in terms of the Labour Relations Act in 2014

taking effect on 1 January 2015.

At the Employment Conditions Commission, the statutory commission

advising the Minister inter alia on the amount the threshold should be

members representing employers in South Africa raised the concern that the

threshold amount may be too high, in that it appeared an arbitrary

determination of vulnerability from the outset.

As a result, the Department of Labour upon the request of the ECC appointed

the Development Policy Research Unit of the University of Cape Town to

analyse the impact and effectiveness of the earning threshold. The research

aimed at understanding the impact of the earnings threshold on providing

protection to vulnerable workers, the robustness with which the threshold is

determined, whether the earnings threshold is set at a level that correctly

distinguishes between vulnerable and non-vulnerable workers, the impact of

the threshold on employment and the relevance of the application of the

threshold in a rapidly-changing labour market. The research concluded that

the purpose of the earnings threshold is to address the lack of bargaining

power amongst workers. By offering these workers legal protection in the

workplace, their vulnerability is reduced. Since the threshold had been

irregularly adjusted to account for inflation and its level has diverged

significantly from the earnings of a public-sector manager.

It follows that there is currently no robust decision rule on which to determine

a threshold. What is apparent is that the threshold is successful in identifying

and covering many vulnerable employees. The recommendation was that the

real level of the threshold should not be changed. However, if a robust

decision rule were to be developed that could accurately identify employees

with weak bargaining power, and if this could be mapped accurately to

earnings then the threshold should be adjusted. In principle is then, an

earnings threshold may be used effectively to grant tenure to vulnerable

employees, but a robust decision-making rule needs to be developed.REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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ConclusionThe amendments to the Labour Relations act 66 of 1995 must be lauded for

giving protection to vulnerable employees, namely the fixed-term and part-

time employees. By limiting recourse to fixed term contracts to 3 months or

less and by also requiring that there must be justifiable reason for fixed-term

contracts that are longer than 3 months, the Act gives effect to

Recommendation 166 (Termination of Employment Recommendation, 1982

No 166) of the ILO.

This is also achieved through providing that fixed-term contracts that are

longer than 3 months without any justifiable reason are by operation of law

deemed to be of indefinite duration. Also, the amendments also protect fixed-

term and part-time employees from being subjected to less favourable

treatment when compared to employees employed on a permanent basis and

full-time employees. This gives full effect to the constitutional right to equality.

By providing protection only to employees earning below the threshold it can

be argued that the amendments to a certain degree to not fully give effect to

the constitutional right to everyone as envisaged by the Constitution of the

Republic of South Africa. Also, by not limiting the period that an employer may

extend successive fixed term contracts for justifiable reason, a potential

loophole could be created for employers to renew fixed –term contracts and

thus frustrate the objectives of the amendments. However, the amendments

provide much needed stability and job security to vulnerable employees.

It can also be argued that they are a step in the right direction towards fulfilling

and realising the Decent Work Agenda of the ILO.

7.2 Developments in identifying the true employer of the in the context of Labour Brokers


ABSTRACT

The paper considers the practice of labour brokering in South Africa and

Namibia which has undergone considerable changes in recent years and

discusses how these jurisdictions has responded to these changes. In doing

so it explains how the practice is statutorily regulated in the jurisdictions under

consideration. In the South African context, section 198 and 198A(3)(b)(i) of

the Labour Relations Act, 66 of 1995 is of particular importance and has been

the subject of recent court decisions and academic debate in as far as the

effect of the section on identifying the true employer in the context section

198A(3)(b)(i) is concerned. Thereafter, the paper discusses the current

position in South Africa and concludes with some recommendations.

INTRODUCTIONSince the 1990s, businesses in South Africa opted to introduce, rather

controversially, a triangular employment relationship into the labour market.

This triangular relationship is classically made up of the labour broker, the

client and the worker. Very often it would be the labour broker that would enter

into a contract with the worker. The labour broker would then enter into a

contract with the client. The worker is then made available to the client, yet

traditionally there was no contractual relationship between the client and the

worker. This untenable situation meant that workers in this triangular

relationship were considered vulnerable. For example, pension funds and

medical aid were some of the benefits that workers in this triangular

relationship were traditionally unable to access. For this reason, temporary

employment services (commonly referred to as TES) have undergone

substantial changes in recent years. The use of labour brokers has for a long

time been a contentious issue in the South African labour market with some

calling for a complete ban on the practice while others, for improved

regulation. The South African legislature opted for the latter. The paper also

considers how temporary employment services are regulated in Namibia. In


this regard, the concept of ‘labour hire’ will be explored as a comparator to

South Africa. It is noted that in 2007 labour hire in Namibia was banned, yet in

2009, the practice was re-instated without concomitant legislation. A ‘change

in the tide’ occurred in 2012 with the introduction of amendments to labour

laws, regulating labour hire in Namibia. As with the current situation in South

Africa, the amendments in Namibia seek to provide some clarity regarding the

true identity of the employer. It is to this extent that a comparative discourse is

provided.

On 1 January 2015, the amendments to the Labour Relations Act, 66 of 1995

took effect.2 For purposes of this paper, the amendment introduced by section

198A(3)(b)(i) dealing with temporary employment services or ‘labour brokers’,

is particularly relevant. Section 198A(3)(b)(i) envisages that the phrase

‘deemed employment’ relate to employees working for more than three

months as well as earning below the ministerial threshold. This section

provides as follows:

For the purposes of this Act, an employee-• performing a temporary service as contemplated in subsection (1) for

the client is the employee of the temporary employment service in terms

of section 198 (2); or

• not performing such temporary service for the client is-

• deemed to be the employee of that client and the client is deemed to be

the employer

This amendment sought to bring about improved regulation of temporary

employment services and enhanced protection to employees who find

themselves employed in such circumstances. It would appear that at its core,

the legislature, by introducing the amendments, intended to prevent clients

from circumventing their obligations in terms of labour laws. The Labour Court

and Labour Appeal Court has recently had the opportunity to interpret the

provisions of 198A(3)(b)(i) of the LRA in Assign Services (Pty) Ltd v CCMA

and Others and NUMSA v Assign Services and Others.REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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The judgment of the LC and LAC provides conflicting interpretations. The LC

held that section 198A(3)(b)(i) should be interpreted in a manner so as to give

rise to a dual employment relationship. The LAC rejected the dual employer

interpretation and held that the client of the TES was the sole employer of

placed workers. The judgment of the LAC was taken on further appeal to the

Constitutional Court. The Constitutional Court will need to determine the

proper interpretation of section 198A(3)(b)(i) and the effect thereof. This paper

considers the nature of the employment relationship in the context of section

198 and the effect of the parallel and dual employer interpretations in light of

the interpretive injunctions of the LRA, the relevant provisions of the South

African Constitution as well as international law. The authors argue that the

sole employer interpretation should be preferred as it results in improved

protection for employees in a manner that is consistent with the international

and domestic law. In the next section an overview of section 198A of the LRA

is given, after which a summary of the position in Namibia is provided. The

manner in which the South African courts have dealt with section 198A is then

considered, followed by a conclusion and recommendations.

THE INTERPRETATION OF S198A THROUGH THE CASES

Section 198A(3)(b)(i) gives rise to conflicting interpretations. The section is

peculiar in that it can be interpreted to mean that once the deeming provision

takes effect, the client becomes the sole employer of the placed worker (sole

employment interpretation). It could also be interpreted to mean that once the

deeming provision takes effect, the client and the TES are both considered

employers of the placed workers (dual employment interpretation). The issue

then is whether the provision has a substitution or augmentation effect. This

was precisely the issue for determination before the CCMA, the Labour Court

and the Labour Appeal Court. These dispute resolution fora have all provided

different interpretations to the section. The CCMA case will first be discussed,


followed by the decision of the Labour Court. Thereafter, an analysis of the

Labour Appeal Court judgment is then provided.

Assign services (Pty) Ltd v Krost Shelving and Racking (Pty) Ltd and National Union of Metal Workers of South Africa CCMA, 2015The applicant (Assign Services), referred a dispute to the Commission for

Conciliation Mediation and Arbitration (CCMA) relating to the interpretation of

section 198(3)(b)(i), ‘the deeming’ provision of the LRA. The applicant

(Assign) argued that the section should be interpreted in a manner that gives

rise to a dual employment relationship. In other words, both the TES as well

as the client should be regarded as the employers of the placed workers. The

respondent (NUMSA) argued that once three months has lapsed and it is

found that the employees did not render a temporary service as contemplated

in section 198A, the client must be considered to be the sole employer, thus

giving rise to a sole employment relationship. In considering the submissions

made by the parties, commissioner Osman opted for the sole employment

interpretation and found as follows:

In my opinion the deeming provision in Sec 198A(3)(b) should be interpreted

akin to how the law deals with the concept of “adoption”. In the case of

“adoption” a legal fiction is also created, in that for purposes of the law, the

adoptive parent is regarded as the parent of the adopted child. In this regard

the best interest of the child is considered to be in the scenario where the

adoptive parent is afforded full rights in terms of guardianship and/or all

obligations in terms of parenting and upbringing of the adopted child. The law

does not regard a biological parent and the adoptive parent as dual parents,

as doing so would lead to uncertainty and confusion. The commissioner was

also mindful of the challenges that could arise if the dual employment

interpretation is followed. For example, who bears the responsibility of

disciplining placed workers and which disciplinary code would be applicable?


Furthermore, how would re-instatement be affected in unfair dismissal

disputes? In addressing the issue of joint and several liability, the

commissioner found that, the fact that the employee has a choice of instituting

action against either the TES or client or both does not in itself elevate the

TES to the status of employer. The purpose, it was found, was to determine

liability. The commissioner also recognised that the relationship between TES

and client may continue, but for purposes of the Act, the client was deemed

the sole employer of the placed workers after the expiration of the three-month

period.

Assign Services (Pty) Ltd v CCMA and Others Labour Court, 2015 On review

in Assign Services (Pty) Ltd v CCMA, the Labour Court per Brassey AJ found

that the commissioner erred in law by making his finding and set aside the

award. The court held with reference to the concessions of the parties that

firstly, section 198(3)(b)(i) has the effect of the client becoming the employer

of the placed employee after three months has lapsed for purposes of the LRA

(and no other purpose) and that the client is not drawn into the contract

between the TES and the worker. Secondly, the “section does not serve to

make the client the employer for any purpose other than the operation of the

LRA.” For the court, nothing in section 198(3)(b)(i) has the effect of

invalidating the contract between the TES and the worker or detract from its

terms. The contract therefore remains in force. The court illustrated the

application of this interpretation by way of a few examples which is to the

effect that where a contract exists between the TES and placed worker, the

provisions of the contract must be complied with. Given the concessions made

by the parties, the court was of the view that the only issue for determination

was whether the TES continues to be the employer of the placed worker and

is concurrently vested with rights, obligations, powers and duties arising from

the LRA. The court could not find any reason why the TES should be relived

of its obligations due to the fact that the client acquires a set of parallel rights

and obligation relative to the employee. According to the court, the worker REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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becomes entitled to the statutory protection automatically as a result of

contractually engaging with the TES and in the courts view, there seem to be

no public policy considerations resulting in the placed worker having to

sacrifice these rights on the basis that the TES found placement at the client,

especially where the designation of the client is in the discretion of the TES.

The court accordingly found that a dual employment relationship exists.

The position of the LC is therefore that the deeming provision has the effect of

the client becoming the employee of the placed worker for purposes of the

LRA and does not invalidate the contract of employment between the TES

and the worker. The nature of the relationship between the TES and the

employee is also “indubitably one of employment”. NUMSA v Assign Services

(Pty) Ltd and Others Labour Appeal Court, 2017 On appeal in NUMSA v

Assign Services (Pty) Ltd,28 the LAC per Wagley, Tlaletsi DJP and

Phatshoane AJA overturned the judgment of the LC. The court commenced

by outlining the relevant constitutional and statutory interpretive injunctions in

the light of the purpose of the LRA and the provisions of section 198 as well

as the Explanatory Memorandum accompanying the LRA Amendment Bill and

found that “[t]he sole employer interpretation is consonant with the main thrust

of the amendments to s198 and 198A outlined in the Explanatory

Memorandum accompanying the LRA Amendment Bill as tabled in 2012 in

Parliament…”

The court held that in addition to the deeming provision, further measures

were introduced into section 198A to protect vulnerable employees. Such

measures include section 198A (4) which protects the employee deemed to

be the employee of the client against termination of the contract in order to

avoid the operation of section 198(3)(b) by declaring such a termination a

dismissal. In addition, section 198 (5) seeks to protect employees against

unfair discrimination by the client as far as treating the employee on the

whole, less favourably than an employee of the client, performing the same or REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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similar work is concerned. The protection against dismissal and unfair

discrimination held the court, does not mean that the deemed employee is

employed by both the client and TES, but must be interpreted as a measure

put in place to ensure that affected employees are not treated differently in

relation to other employees employed by the client and that these employees

“are fully integrated into the enterprise as employees of the client.” According

to the court, the protection provided takes into consideration the fact that the

contractual relationship between the client and the worker does not come

about by agreement, but by operation of law. It is on this basis according to

the court, that the dual employment interpretation is not consonant with the

context and purpose of the amendments.

In dealing with the issue of joint and several liability, the court held that the

fact that the employee may institute action against either the TES or client or

both is to be considered a measure to protect lower-earing workers and to

confine a TES to employing workers for temporary work as contemplated in

section 198A and that the joint and several liability provision have the

potential, after three months has lapsed, to discourage the TES from further

involvement in the administrative arrangements relating to the placed worker.

With regard had to the relationship between the placed workers and the client,

the court found that there is no provision in the LRA to the effect that the

contract of employment of the worker is transferred from the TES to the client

as is an invariable consequence of section 197. There is also no provision to

the effect that after the lapse of the three-month period contemplated in the

section, the client replaces the TES. The court found equally, that there is no

provision in the LRA to the effect that the TES and the client become joint

employers upon expiration of the three-month period. Neither do the

amendments stipulate that the client is added to the equation as an employer.

The purpose then is not to transfer the contract, but to create a statutory

employment relationship between the client and the worker.


Bearing the purpose of the amendments in mind as discussed above, the

intention said the court “must have been to upgrade the temporary service to

the standard employment and free the vulnerable worker from atypical

employment by the TES.” It would therefore make no sense if the TES were to

be retained in the equation indefinitely in circumstances where the client

assumed all the responsibilities previously held by the TES prior to the

expiration of the three-month period. The role of the TES then said the court is

that it “would be the employer only in theory and an unwarranted “middle-man”

adding no value to the employment relationship.” The court also recognised

that for various reasons and in accordance with established practice, the TES

may continue to pay the employee. In the event that such payment is not

forthcoming, the employee may institute action against the TES, client or both.

However, where the TES for some or other reason ceases to pay the

employee and the client pays the employee, the joint and several liability

would also cease to exist. The court asserted that it is important to note that

the employment relationship is created by operation of law between the client

and the placed worker and is independent of the relationship between the TES

and the worker, the dismissal of the worker by the TES does not affect the

employment relationship between the worker and the client.

CONCLUSION AND RECOMMEDATIONSIn the South African context, where the labour broker is the employer for the

first three months, and the client ‘deemed’ the employer after three months,

the client has the legislative duty, after the ‘deeming’ provision kicks in, to

employ the employee on terms and conditions that are on the whole not less

favourable than its permanent employees. This, according to Botes,37 seems

to strike a balance between flexibility in the labour market and the much-

needed protection for employees who are, or become, vulnerable in the long

term. In the short term of course, namely the first three months, of

employment, the employees are not protected against wage differentials until


such time that the minimum wage legislative framework kicks in. In Namibia,

labour flexibility is compromised. However, temporary employees are

protected against wage differentials the moment they are employed in the tri-

angular relationship. The built-in recourse to the common-law in relation to the

identity of the employee seems to provide a further safety mechanism in

distinguishing the employee from an independent contractor.

The Labour Appeal Court seems to avoid some pertinent concerns raised in

the Labour Court. In the first instance, the Labour Court, in addressing the

nature of the relationship between the TES and the worker post the ‘deeming”

provision, found that the contract between these two parties remains firmly

intact, and that the relationship is in fact one of employment. Surprisingly, the

Labour Appeal Court overlooked this issue and instead made the following

findings. First, it found that there is no provision in the LRA Amendment Act of

2014 to the effect that the contract of employment is transferred from the TES

to the client as is the case in instances of s197 transfers. Secondly, there is

also no provision to the effect that the client steps into the shoes of the TES

after the three-month period. Thirdly, there is also no provision in the

amendments that the TES and the client become joint employers on the

expiration of the three-month period. Lastly, the amendments do not stipulate

that the client is added as an employer. In this regard one can deduce that the

Labour Appeal Court focused on what the provision does not do, rather than

determining what the relationship of the TES and the worker post “deeming”

is.

It is also apparent from case law that the interpretation of section 198A(3)(b)(i)

of the LRA can favour either the dual employer or sole employer view. The

LAC opted for the latter and made use of the purposive method of statutory

interpretation to arrive at its finding. The effect of the LAC judgment as far as

the proposed interpretation of the deeming provision is concerned is that once

section 198A(3)(b)(i) is triggered, the worker employed by the TES becomes

the employee of the client. The sole employment interpretation is not without REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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challenges bearing in mind that the LC found that the contract remains fully in

force between the TES and worker while the LAC also recognized “that the

relationship between the placed worker and the client arises by operation of

law and is independent of the terms of the contract between the worker and

the TES. The LAC also recognized that the effect of the amendment was not

to transfer the contract, but to create a statutory employment relationship

between the client and the worker and that “the TES would be the employer

only in theory and an unwarranted “middle-man” adding no value to the

employment relationship.” Thus, the TES may terminate the contract it has

with the worker and this would not affect the worker’s employment relationship

with the client.

Pending the judgment of the recent Constitutional Court case of Assign

Services v NUMSA and Others,43 it seems likely that the sole-employer

interpretation would be the preferred approach. However, it remains to be

seen whether the judgment will also refer the mischief created by the

amendments, back to the legislature.

7.3 Unrepresentative Trade Union Representation in Individual Oriented Proceedings

Introduction

The Republic of South Africa on 27 March 2018 will be celebrating its 24 years

of democracy. The late former President Nelson Mandela in his much-

acclaimed speech delivered before sentencing in the famous Rivonia trial set

the tone for South Africa’s constitutional model of democracy. He passionately

stated that: “I have fought against white domination, and I have fought against

black domination. I have cherished the ideal of a democratic and free society

in which all persons live together in harmony and with equal opportunities. It is

an ideal which I hope to live for and to achieve. But if needs be, it is an ideal

for which I am prepared to die.” This is the spirit within which the Constitution, REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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1996 was adopted. Prior to the adoption of this Constitution, political leaders

like himself were in jail and the government of the day then was the Nationalist

Party (NP). This same NP were the architects of the apartheid laws that he

vehemently fought and yet he and the organization that he led, the African

National Congress, found it expedient to forge a future for all South Africans

that recognized and thus included them fully in this process. The constitutional

rights such as the rights to freedom of association, to organize and to engage

in collective bargaining were aspired for.

The Labour Relations Act (LRA of 1995) as a labour relations dispensation in

the country purports to give effect to the principles contained in the

Constitution. The system is voluntarist and bolstered by the qualified right of

trade unions to acquire organisational rights and to strike. The majority trade

unions through the model of collective bargaining that is strongly inclined

towards majoritarianism are able to bolster their dominance of the collective

bargaining space and to block trade unions unable to meet the threshold of

retrospectivity from being active in the workplace. This is in line with

majoritarianism.

The central question posed in this paper is whether the right to establish

thresholds and its consequent effect of limiting the right to freedom of

association of unrepresentative trade unions in the area of individual member

representation is:

• in line with the Constitution, 1996

• and international norms.

The appraisal is made up of four parts. The first constitutes an analysis of the

Constitution’s promotion of minority interests, be it through political or trade

union formations. The second part covers the principles of the ILO and how

far member states may limit the rights to freedom of association and may not

go insofar as the limitations infringements on do within the context of their

policy choices insofar as models of collective bargaining are concerned. The REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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final part concludes and reflects on deficiencies in the current collective

bargaining system insofar as freedom of association is concerned and to

provide suggestions on what requires to be done in the quest for the

protection and promotion of the right to freedom of association in the area of

individual representation.

The Organisational Rights Dispensation of the LRA of 1996Statutory rights serve as the organisational oxygen of all registered trade

unions. As succinctly mentioned by Mischke:

“organisational rights provide trade unions with the essential instruments for

not only securing an organisational foothold in the employer’s business, but

also laying the foundations for a future collective bargaining relationship with

the employer. These rights are also enjoyed by trade unions by virtue of

membership to the bargaining council. Where a trade union is a majority trade

union in the workplace, it will enjoy all these organisational rights. Where a

trade union is sufficiently representative it will enjoy some organisational

rights, with the exception of the right to elect trade union representatives and

the right to disclosure of information, which are rights enjoyed exclusively

majority trade unions.6 Minority trade unions have no organisational rights

afforded to them by the LRA. The organisational rights of the LRA are the

following:

• trade union access to the workplace (s 12 of the LRA);

• deduction of trade union subscriptions (s 13 of the LRA);

• trade union representatives (s 14 of the LRA);

• leave for union activities (s 15 of the LRA);

• and the right to disclosure of information (s 16 of the LRA).

There is no indication in the LRA of 1995 on what the actual percentage is to

be for trade union to be considered “sufficiently representative.” However, the

LRA does provide that when a trade union wishes to exercise organisational

rights, the arbitrator must seek to do the following:REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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• seek to limit the proliferation of trade unions.

• To seek to limit the financial burden which comes with if for employers

pertaining to the recognition of multiple trade unions.

• the arbitrator should take a basket of rather vague factors, such as the

nature of rights sought, the nature of the workplace and the sector, and

the organisational history of the workplace into account before granting

the rights.

Three methods are provided by the LRA for the acquisition of organisational

rights. Firstly, through lodging a dispute when the trade union is of the view

that they have a particular level of retrospectivity. The second is by virtue of

membership to a bargaining council.9 The third is through a collective

agreement. The majority trade union and employer or the bargaining council

have the option of entering a threshold agreement in terms of section 18 or 20

of the LRA of 1995. In this regard, section 18 of the LRA of 1995 provides on

the one hand that:

“An employer and a registered trade union, whose members are a majority of

the employees employed by that employer in a workplace, or the parties to a

bargaining council, may conclude a collective agreement establishing a

threshold of representativeness required in respect of one or more of the

organisational rights.”

On the other hand, section 20 of the LRA provides that there is no preclusion

to a collective agreement regulating all or some organisational rights through

an instrument other than section 18. This also means that the section 18

threshold agreement may inasmuch as it may be entered by a majority trade

union also be entered by an unrepresentative trade union. In South African

Correctional Services Workers Union v Police and Prisons Civil Rights Union

Labour Appeal Court (LAC),12 the Labour Appeal Court held that an

unrepresentative trade union that does not have organisational rights may

negotiate for these with the employer. This of course does not mean that the

employer will grant them. Commentators are ad idem that a dominant majority REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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trade union and an employer may want to use threshold agreements to

exclude rival trade unions, and thus disable unrepresentative trade unions

from getting the foot in the door. Brassey et al in this regard attributes this

exclusion as a manifestation of the principle of majoritarianism, which in terms

of the LRA allows for what he terms “connivance” between the majority trade

unions and employers to exclude rival trade unions. Du Toit et al do state that

section 18 of the LRA may prevent minority trade unions from “getting a

foothold in a workplace” and that this may potentially violate the basic rights of

employees and their trade unions. The effect of threshold collective

agreements is to effectively prevent trade unions from their registered activity,

which is preceded by the exercise of the right to elect trade union

representatives in terms of section 14 of the LRA of 1995 and related rights.

As alluded to, this right is exclusively acquired by a majority trade union or a

member of a bargaining council. This raises a problem for an unrepresentative

trade union, as employees who associate with them and who for example

constitute the requisite number of 10 members in terms of section 14(2)(a) of

the LRA may not be able to elect their trade union representative in a specific

workplace. This also compounds the right of the member to be represented by

such an unrepresentative trade union in disciplinary or grievance proceedings.

This in limits the right of the unrepresentative trade union to exercise its right

to freedom of association as safeguarded in international law. It is submitted

that the effect of the collective agreement is determinable in terms of section

23(1)(d) of the LRA of 1995 which provides as follows:

A collective agreement binds employees who are not members of the

registered trade union or trade unions party to the agreement…”


The Impact of Thresholds in Bargaining Councils

The constitution of the Public Service Co-ordinating Bargaining Council

(“PSCBC”) provides for two requirements before a trade union can become

member of the PSCBC:

Any single trade union party may apply for admission to the Council if it:

• meets the threshold requirement of 50 000 members; and

• is admitted to a Sectoral Council.”

One or more trade unions working together which are unable to meet the 50

000 threshold, will not be able to participate in the activities of the bargaining

council. Any trade union wishing to be a party to the PSCBC also needs to be

admitted to the relevant sectoral council before being admitted to the PSCBC.

The General Public Service Sectoral Bargaining Council (“GPSSBC”) is an

example of such a sectoral council and its constitution provides that only one

or more trade unions acting together that meet the threshold of 30 000

members may apply for admission to the GPSSBC. The bargaining council

system therefore precludes unrepresentative trade unions from engaging in

collective bargaining in so far as they are excluded from becoming party to the

statutory institutions which are established for collective bargaining. There is

no sustainable challenge to this state of affairs from the point of view of

collective bargaining and the power dynamics that go with it as this

phenomenon is informed by numbers.

The challenge lies with the impact that the collective agreement has on

matters of discipline or grievances. In this regard, the disciplinary code and

procedures for the general public service, which is embodied in PSCBC

Resolution 1 of 2003, provides that an employee who is subjected to a

disciplinary hearing may be represented by a fellow employee or “the

representative of a recognised trade union.” The “definitions” of PSCBC

Resolution 1 of 2003 define “recognised trade union” as “all unions admitted to

the PSCBC as well as any trade union that enjoys organisational rights from a


particular department (the latter union is recognised for the particular

department only).” An unrepresentative trade union does not fall under this

category as it is unrecognized.

The Rights to Freedom of Association, to Organise and to Engage in Collective Bargaining

The Constitution, 1996 does not provide for the rights to freedom of

association, to organise and to engage in collective bargaining to be subjected

to a threshold before being exercised. However, section 23 of the Constitution,

1996, envisages labour legislation that will regulate collective bargaining

subject to limitations to such legislation being compliant with section 36(1) of

the Constitution, 1996.In expounding on the right to freedom of association,

Justice Sachs in the Constitutional Court matter of SANDU v Minister of

Defence held that:

“the freedom of association that everyone has in terms of section 18 of the

Constitution and the right to fair labour practices in terms of section 23(1))

clearly entitle soldiers to set up a body like the South African National

Defence Union (SANDU union) to look after their employment interests.”

The view that everyone has this right is what leads to the conclusion that the

right to freedom of association is the springboard of the two other

constitutional rights, namely the rights to organize and to engage in collective

bargaining. In this regard, Cheadle states that the right to organise and the

right to collective bargaining are incidents of the right to freedom of

association. The Constitution does not make provision per se for these rights

are to be limited by means of trade union security arrangements or labour

legislation giving effect to these rights. Therefore, it can be argued that should

the LRA make provision for a model of democracy which does not permit

“every worker” the right to participate in the “activities and programmes” of its

trade union as provided for in section 23(2)(b), that such limitation could REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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possibly fail constitutional muster. Further, any trade union member’s right to

be elected as a shop steward, or to be represented at a hearing by a trade

union representative of choice, surely “constitute activities of trade unions”

which are to be protected by the Constitution, 1996. It is unfortunate that these

are only accommodated in the exclusive right to elect trade unions afforded to

majority trade unions. In the same vein, it can be argued that any provision in

labour legislation which permits agreements to be concluded by majority trade

unions and the employer that explicitly exclude minority trade unions from

engaging in trade union activities involving individual members of these

unrepresentative trade unions could be unconstitutional.

In relation to the right to engage in collective bargaining in terms of section

23(5) of the Constitution, 1996 this constitutional right belongs to “every

worker” and “every trade union.” It is only in the envisaged national labour

legislation that the issue of thresholds comes to the fore. In spite of the right to

establish thresholds, the national legislation also interestingly purports to give

effect to the Constitution and the principles of the International Labour

Organisation. The right to establish such thresholds would therefore require

compliance with the limitations clause of the Constitution, 1996 to pass

constitutional muster.

It is argued in this thesis that the fundamental labour rights in the Constitution,

1996 and the envisaged regulation of the right to engage in collective

bargaining cannot be divorced from the constitutional model of democracy and

international norms. It is submitted that trade unions on registration by the

national authority (Department of Labour) focus initially on recruitment and

growth and only after this growth would they be in a position to demand

incidental rights such as the right to organize and to subsequently to engage

in collective bargaining. The thesis identifies the disjuncture between the

rights to freedom of association, to organise and to engage in collective


bargaining and its ignorance of both the spirit, purport of the Constitution,

1996 and international norms. It is argued that the relevance of thresholds is

not only found in the sphere of collective bargaining, but also in the pure

exercise of the right to freedom of association and to partake in activities of a

trade unions at individual levels. The thresholds agreements that emanate

from the collective bargaining exercise and their effect may thus not comply

with the Constitution’s limitation provision and/or international norms. What

happened to Madiba’s fight against all forms of domination?

Recommendations and Conclusion

The organisational rights dispensation in the LRA of 1995 that provides for

thresholds agreements constitutes provisions which promote the principle of

majoritarianism. The model of collective bargaining itself, it can be argued to

be pluralist in form with a strong inclination towards majoritarianism, rather

than just purely majoritarian. The thresholds of representivity may be high or

low based on expediency. High thresholds may be aimed at ensuring that rival

trade unions are unable to establish themselves in the workplace including

even representing members who have exercised the right to freely associate

with them.

The ILO supervisory committees, namely, the CFA and the CEACR, without

imposing it on member states prefer the existence of a system where a unified

workforce is in place to engage in collective bargaining whilst maintaining a

reasonable level of pluralism to ensure that freedom of association thrives.

Unreasonably high thresholds of representativeness for the enjoyment of

organisational rights prevent unrepresentative trade unions from being able to

organise and to establish their mark, even on a minimal level, in the

workplace.

The amendments of the LRA of 1995 are seen as allowing non-majority trade

unions to acquire organisational rights exclusively enjoyed by majority trade


unions. However, there is no reconciliation between the powers of the

arbitrators and the strong majority trade union or bargaining council that would

insist on exclusion of rival trade unions through strike action. In light of the fact

that the LRA of 1995 is voluntarist in nature, this is surely not what the

amendments anticipated or indeed anticipate when they were introduced

whilst allowing the provisions on thresholds intact. The ILO principle is that

thresholds are relevant in collective bargaining on substantive matters. It has

been argued that organisational rights are not only relevant for collective

bargaining exclusively but are also equally applicable in the sphere of

enjoyment of the right to freedom of association. The spirit and purport of the

Constitution, 1996 promotes and protects the participation of minority political

parties in institutions of government. Further, the rights of minorities

irrespective of race, colour or creed are fully protected. It may be argued that

the rights of unrepresentative entities such as unrepresentative trade unions

should also enjoy the same promotion and protection.

This will ensure that they “get a foothold in the workplace.” Further to that they

put majority trade unions are It may therefore not be correct to have the status

of a trade union as a majority, sufficiently representative and minority trade

union being the determiner for the enjoyment of the right to freedom of

association. Organisational rights are the lifeblood of all registered trade

unions irrespective of numerical strength. The current organisational rights

dispensation does not see these as “serving to get the foot at the door” but

rather as rights enjoyed by the trade unions that are already recognized by the

employer. According to Mischke organisational rights provide trade unions

with the essential instruments not only to secure an organisational foothold in

the business, but also laying the foundations for a future collective bargaining

relationship with the employer.

The consequences of threshold agreements are that unrepresentative trade

unions become frustrated and resist the dominance by the majority trade REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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union to the extent that labour peace is compromised as was demonstrated by

the “Marikana massacre” and general violence in the recruitment arena.

Within the context of South Africa and its accommodation within the ILO

framework the denial of the right to represent members in a disciplinary

hearing or individual grievance may not pass constitutional muster as there is

no backing for it, both from a constitutional perspective or based on

international norms.

Now what?

What requires to be done in order address the negative impact of thresholds

of representivity for the acquisition of organisational rights is to:

• review the threshold provisions by ensuring that they do not affect the

right to represent members in disciplinary hearing or grievance;

• recognize the right to freedom of association of unrepresentative trade

unions and appreciate that organisational rights are incidents to it;

• recognize that organisational serve to realise the full enjoyment of the

right to freedom of association rather than just serve the enjoyment of

the right to engage in collective bargaining.

7.4. UBER DRIVERS: WHO IS (OR IS NOT) THE EMPLOYER - THE MOTHER COMPANY OR THE SUBSIDIARY?

Introduction

Reason for concern: Disruptive technologies have the potential of eroding

workers’ protection

Policy makers have reacted differently:

• Some countries ban Uber;

• Others leave it to the courts to decide;


• Some regulators have started working on the issue

Some commentators say:

• We need a new test;

• The current tests should be adapted – use the “functional” approach;

• The test should concern who is the “employer”.

HOW DOES UBER WORK?

Uber says:

• We act as digital agent, connecting clients with independent

contractors.

• We do not render transportation services.

• Costly taxi industry regulations don’t apply.

• Uber BV, the mother, is registered in Amsterdam, and

• a national subsidiary assists with admin.

• Uber does not own a vehicle but implements strict quality control.

• Uber receives a percentage of each ride.

Uber drivers:• We either own a vehicle, or drive for an Uber vehicle owner.

• Most often, the Uber driver does not know the difference between

UberBV and the local entity.

UBER IN SA

There are roughly 2 000 000 Uber drivers in the world and 4 000 in SA.

A number of assault cases have been reported in and around Gauteng

stations.


SA policy makers have not discussed changes to the LRA or Code of Good

Practice relating to gig workers.

A dispute has been lodged with the CCMA:

• Three Uber drivers’ apps “deactivated”. Is this a “dismissal”?

• Uber SA argued that all Uber drivers only contract with Uber BV.

• Despite not being joined, the CCMA applied the “reality of the

relationship”

• Held the three were drivers of Uber SA.

UWC Social Policy Unit, assisting Uber drivers, requested an Oxford

Research Project, under supervision of Prof Sandra Fredman, to compile a

comparative report covering 15 countries, states and regions. Some of the

findings were:

• No clear answers yet.

• UK Empl Tribunal, Swiss Social Sec - the national subsidiary the

employer.

• UK, France, Quebecq, Netherlands, Belgium – hiding behind multiple

employers rejected

• EU – Advocate General of ECJ favours Uber drivers as Employees

• Belgium – Labour Prosecutor argues they are employees.

• UK – Aslam on appeal, held treat Uber as a group.

CRITIQUE ON UBER SA

Firstly,S 39(1)(b)–(c) of the Constitution states that when:

“interpreting the Bill of Rights, a court, tribunal or forum. . . must consider

international law. . . and may consider foreign law”.


In K v Minister of Safety and Security the CC cautioned that it is important not

“to equate legal institutions which are not, in truth, comparable” (para 34).

However, “[i]t would seem unduly parochial to consider that no guidance,

whether positive or negative, could be drawn from other legal systems’

grappling with issues similar to those with which we are confronted” (para 35).

SecondlyRealising that there are complex employer models, a definition of “employer”

was introduced into the LRA in January 2015.

S 200B (1) of the LRA provides:

“‘employer’ includes one or more persons who carry on associated or

related activity or business … if the intent or effect of their doing so is

to … defeat the purposes of this act.”

10 years ago, in Footwear Trading CC v Mdlalose the LAC had already

concluded “that Fila and Footwear were separate legal personalities but the

effect of their actions was such that they were in effect joint or co-employers”.

Thirdly,Since the Constitution, 1996 there have been key extensions of the notion of

employee:

• 1999: The CC in SA National Defence Union v Minister of Defence held

that uniformed soldiers are “akin” to employees.

• 2003: a rebuttable presumption was introduced into the LRA and the

BCEA.

• 2008: the LC in Discovery Health v CCMA (LC) held that irregular

migrants may be classified as employees for the purpose of social

protection. REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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• 2008: the LAC in State Information Technology Agency (SITA) (Pty) Ltd

v CCMA held that the focus has shifted from the existence of a formal

contract to the presence of an employment relationship.

• 2010: the LAC in “Kylie” v CCMA held that despite the fact that Kylie

was a sex worker with no valid contract of employment, she was entitled

to unfair dismissal protection under the LRA.

ConclusionWe embrace innovative technological advances and new types of work,

However, what society do we want to see?

Tech entrepreneurs should not be allowed to circumvent their social

responsibilities by hiding behind smart apps.

Allow and encourage technological advances but regulate practices to prevent

exploitation of gig workers.

SUB THEME SIX (6) – MIGRANT LABOUR IN AFRICA

8.1. Labour migration & Ethical recruitment

Abstract Labour mobility remains a key element of social and economic development in

a global labour market where employers have recourse to foreign labour to fill

labour market gaps in various sectors and at different skills

levels, .Governments, employers and workers often depend on recruitment

agencies who play a critical role in organizing the supply for the growing

global demand for migrant labour, and the potential of migration to positively

impact on socio-economic conditions, in both countries of origin and

destination, is well-documented. However, in situations where labour

recruitment is not carried out in conformity with international standards,

workers may end up in exploitative or abusive working conditions. Businesses

themselves also face multiple risks when associated with unethical


recruitment, including practices such as document retention or the charging of

excessive fees to workers, which are linked to labour exploitation and human

trafficking.

Human trafficking and slavery still exist today. The majority work in the formal

economy – making the clothes we wear, harvesting the food we eat and

producing the goods we take for granted in our everyday lives. Many of these

victims are migrant workers, who leave their homes to travel to large cities,

industrial zones and across national borders in search of better employment.

Along the way, they can be exploited by unscrupulous labour brokers or

recruitment agencies that charge workers excessive fees, provide misleading

information about the job on offer, and in some instances seek to impose

control over the workers through measures such as holding onto a worker’s

identity documents. While exploitation may occur outside the knowledge of the

employer, it does not absolve a company from any responsibility, both socially

and legally. Over the years, many brands and their suppliers have been

damaged by allegations of human trafficking and slavery. Damage can include

reputational damage, financial losses, and legal action. While companies need

to protect themselves from this risk, there is also a real opportunity for them to

benefit from more ethical business practices.

Due to the scale of labour migration, the cross-border nature of the

recruitment process, and the wide range of abuses, from isolated and

relatively minor labour law violations to criminal exploitation, governments face

major challenges in regulating and monitoring affected industries, including

the recruitment and employment industries themselves. Although migration

does have the potential to contribute to poverty alleviation of workers, families

and communities, in the absence of well-planned and managed labour

migration, migrants in global supply chains remain particularly vulnerable to

modern slavery and related abuses. Governments are however also taking

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of the UN Convention against Transnational Organized Crime’s (UNTOC)

protocol on trafficking in persons and the African Union (AU) Commission

launched in 2010 its Initiative against Trafficking (AU. COMMIT). Similarly,

following the adoption of its Modern Slavery Act (2015), the United Kingdom

launched a Call to Action to end forced labour, modern slavery and human

trafficking (2017) endorsed by 36 countries.

Gradually recognizing their potential to be agents of change, businesses are

addressing these issues by amending their procurement and corporate social

responsibility policies. Consumers are increasingly questioning where their

goods come from and the conditions in which they are manufactured. Slavery-

like practices are exposed and shared quickly online. Companies that do not

map their own supply chain and monitor the performance of their suppliers

and contractors in terms of recruiting practices and workers’ welfare are

undertaking business risks. Reliance on suppliers engaged in exploitative

recruitment practices may result in supply chain disruptions when regulatory

action and legal sanctions are imposed on them. Most companies rely on

several layers of external recruitment agencies to hire migrant workers and to

manage the on-site workforce, leading companies to lose oversight and

control further down the supply chain. Recognizing this, many big brands have

developed policies and codes of conduct that require all suppliers to comply

with labour and human rights standards.

Under a business model where ‘the employer pays’ for recruitment, migrant

workers are protected from unscrupulous and unethical recruitment practices

which are paving the way into indebtedness and exploitative and hazardous

overseas working conditions. Companies that adopt responsible business

practices benefit from more productive workplaces, in which the rates of staff

turnover are low, there are fewer workplace accidents and less work

stoppages leading to improvements in quality, efficiency and productivity.

Similarly, companies that invest in better recruitment practices, and in

particular adopt the ‘employer pays model,’ tend to have workers that are REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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more motivated and better matched to their role, as workers will be chosen

based on competence and not on their ability to pay. This in turn helps attract

other motivated and skilled workers to the company. This not only protects

vulnerable workers from unscrupulous labour brokers and recruitment

agencies, but also leads to better recruitment processes in which workers are

better matched to their respective positions.

Recognizing that ethical recruitment and the principles of decent work are

integral to the eradication of modern slavery in supply chains, more and more

companies have corporate social responsibility (CSR) policies that address

labour and human rights risks in their operations and supply chains.

Companies seek to better manage and control these risks associated with

unethical recruitment practices by identifying and engaging likeminded

suppliers and responsible business partners. Implementing ethical recruitment

practices therefore also open access to potential new business.

The IOM approach to international labour migration is to foster synergies

between labour migration and development, and to promote legal avenues of

labour migration as an alternative to irregular migration. As such promotion of

ethical recruitment is an important area of IOM’s work. In that regard, IOM’s

International Recruitment Integrity System (IRIS) programme is designed to

support ethical recruitment of migrant workers. IRIS is a voluntary multi-

stakeholder certification system for labour recruiters currently being developed

by IOM and a consortium of stakeholders. It is comprised of an international

standard, certification scheme, and a compliance and monitoring mechanism.

IOM’s approach to Ethical Recruitment and Decent Work

Globally, IOM strives to protect migrant workers and to optimize the benefits of

well-managed labour migration for both countries of origin and destination, as

well as for the migrants themselves. In its labour migration programming, IOM

builds capacity in labour migration management for:


• migrants, their families and their communities;

• local and national governments;

• private sector entities such as employers and industry representatives,

labour recruiters and their industry representatives; and

• regional organizations.

The field of international labour recruitment has become a key focus of IOM’s

labour migration and migrant assistance portfolio. Ensuring that recruitment is

conducted in an ethical manner is integral to the protection of migrant workers

at all stages of the migration cycle and requires a collaborative effort of all

relevant stakeholders.

IOM’s approach to ethical recruitment and private sector engagement

Recognizing the potential of the private sector as a driver of change, IOM has

increasingly engaged with businesses that employ migrant workers within their

supply chains. IOM’s work with the private sector is guided by the Ten

Principles of the Global Compact, the Guidelines on Cooperation between the

United Nations and the Business Sector, and the United Nations Guiding

Principles on Business and Human Rights. In accordance with IOM’s Private

Sector Partnership Strategy 2016-2020, IOM has launched a number of

initiatives that are intended to provide private sector partners with practical

solutions for the implementation of ethical recruitment and fair supply chain

practices.

Previous efforts to address the root causes of human trafficking – i.e. the

demand for cheap labour – have rarely sought to engage private companies

as partners and parts of the solutions. IOM is helping companies in local

contexts to reduce risks of modern slavery, forced labour and human

trafficking within their company operations and supply chains through the

adoption of ethical recruitment and fair supply chain practices, by seeking to

meet specific needs of the business community, while promoting and


protecting the rights of vulnerable migrant workers. Accordingly, good

practices and the benefits of well-protected workers is presented in light of a

new “business case” for greater social responsibility of businesses.

Practical steps companies could take to improve their practices and those of their suppliers

• Commit: Integrate ethical recruitment into procurement and corporate

social responsibility policies and adopt “employer pays” principle

• Know your labour supply chain: Conduct initial mapping of supply

chain and identify whether there are migrant workers in supplier’s

factories; Commission an assessment of supplier’s recruitment

management systems; Commission an assessment of labour recruiters

• Promote and build capacity: Facilitate/co -organize workshops with

selected suppliers, suppliers’ labour recruiters and with company

business and sustainability teams

8.2 Migrant Labour in Africa (The South African Case Study)

AbstractThis paper is based on the South African case study on Migration Labour. It

covers the recruitment framework for migrant labour in South Africa. The

paper also covers the applicable regional framework agreement by SADC

countries of which South Africa is a member as well as the framework

agreements by the African Union and International Labour Organisation. The

paper interrogates all related South African Legal Framework applicable for

the protection of Migrant Labour rights including the South African

Constitution, the Labour Relations Act, Employment Service Act and

Immigration Act. The paper also demonstrates flaws in policy framework for

the exclusion of some categories of migrant workers in social security

benefits. The paper also deals with the recruitment practices of foreign

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African Public Service. The paper will also touch on the root causes of

emigration as per the South African White Paper on International Migration.

Introduction

Migrant Labour is not a new subject in South Africa. South Africa has been a

migrant-receiving country for decades and have been going on since the

mineral revolution of the late 19th century. The majority of those migrants

were from neighbouring countries within the Southern African region. Migrant

labour provided abundant cheap African labour for white-owned mines and

farms, and it continues to be significant in South Africa to this day. Regardless

of the general surplus of domestic labour, South Africa’s mining industry

employed mostly foreign workers since it was established in the late 19th

century until the beginning of the 21st century. Employment of unregulated

foreign labour enabled mine-owners to exploit the available manpower in

pursuit of maximum output.

Farmers seeking to avoid the South African employment practices

increasingly seek to employ migrant workers to whom they extend minimal

employment benefits. Since 2000, when Zimbabwe was plunged into an

economic crisis, the scale and nature of Zimbabwean migration to South

Africa has changed significantly, with increasing numbers crossing the border

and staying for longer. According to a StatsSA report on migration dynamics,

the consistently high rate of migration from SADC countries is due to a

colonial and apartheid-era regional “history of labour migration, especially

from Mozambique, Lesotho, Malawi, Zimbabwe and Swaziland.” The 2011

census reported that more than 75% of foreign-born (international) migrants

living in South Africa came from the African continent. African migrants from

SADC countries contributed the vast majority of this, making up 68% of total

international migrants. Immigrants from African countries outside of the SADC

region made up just 7.3% of all international migrants. The claim that


„foreigners‟ are taking jobs from South Africans is an argument that is always

made and possible the primary cause of the xenophobic attacks that have

been experienced in the country from 2008. In a country like South Africa that

is characterised by high unemployment means that more people are

competing against fewer jobs and the influx of emigrant workers only make

issues worse. The employment of foreigners is regulated by The Employment

Services Act 4 of 2014 of which came into effect in August 2015 and was

introduced to promote employment while simultaneously decreasing the

unemployment rates within the Republic.

The Immigration Act 13 of 2002 is also responsible for regulating foreign

employment in the Republic of South Africa. This act lays out the rules and

regulations for admission of foreigners into South Africa, their residence in

South Africa and their departure from South Africa as well as the ability for

foreigners to work within the Republic.

Root causes

The 2017 White Paper on International Migration has identified a number of

root causes for international migration. The 2017 White Paper highlights

significant policy gaps that exist in the management of integration for

international migrants, management of emigration and management of asylum

seekers and refugees. The following have been identified as some of the root

causes for migration:

International migration is regarded as a routine administrative function of the stateThe approach to international migration in the 1999 White Paper is largely

static and limited to compliance rather than managing international migration

strategically. As a result, there is a lack of a proactive management of

international migration and this does not advance the national security and

development agenda of the country. The focus is biased towards formal rights


rather than on understanding that international migration must be managed

professionally, securely and strategically to achieve national priorities.

The 2017 White Paper proposes that international migration must be

managed proactively and strategically in order to contribute to national

priorities, such as nation building and social cohesion, inclusive economic

growth and national security. South Africa needs to start a conversation on the

importance of international migration so that there can be consensus on its

contribution to meeting broadly supported national goals. This White paper

has also identified that, South Africa has not put in place adequate policy,

strategies, institutions and capacity for attracting, recruiting and retaining

international migrants with the necessary skills and resources.

Lack of a risk-based approach to international migration

The current policy relies on the mechanical application of rules to manage

risks, rather than the integrated intelligence-based approach that is best

practice globally. South Africa has consequently invested little in the effective

and secure management of international migration so that risks can be

evaluated and mitigated adequately. The capacity to analyse and take

strategic decisions is fundamental, together with the availability of the

necessary information from other departments, such as State Security,

Transport, the South African Police Service (SAPS), South African Revenue

Service (SARS), the Department of Trade and Industry and the Health

Department. In South Africa, risks have to be managed within the framework

of the Constitution and the human rights of both citizens and other nationals

must be respected and protected.

Little awareness of historical and geopolitical contexts


The 1999 White Paper was designed in response or to correct the apartheid

immigration legislation and it adopted the formal principles of immigration

administration that are promoted by the UN. It opened South African borders

to Africa and the world but reserved the right to immigrate largely to those with

high level skills or capital. Workers with low to mid-level skills from SADC

countries could only be recruited by farmers, the mines and other companies

under a temporary Corporate Work Visa that has its roots in the migrant

labour system. It was silent on the need to manage historic migration flows

from the SADC in a way that will break with the colonial past by promoting

regional integration and industrial development.

Lack of a holistic approach to immigration policy leading to policy gapsThe 1999 White Paper excludes policy on asylum seekers and refugees,

which is covered in the Refugees Act. The approach taken in the new White

Paper is that, international migration must be dealt with holistically, as many

aspects are interconnected and this manifest in concrete processes and the

lives of people.

Serious policy gaps regarding asylum seekers and refugeesAt the level of policy, legislation, strategy and systems, the asylum seeker and

refugee regime that was established through the 1998 Refugees Act has

serious gaps that have only been partially addressed through amendments.

Besides policy gaps, this points to the need for the state to move more quickly

to a more integrated and strategic approach to planning and budgeting.

Capacity constraints to manage international migrationThe limited capacity of South Africa to manage international migration is due

to a lack of appreciation of its positive role and strategic importance.

Contributing to the situation described above has been a tendency to regard

the Department of Home Affairs as the sole department responsible for the


management of international migration. This has contributed to the lack in

South Africa of approaches involving the whole of the government and civil

society, which is contrary to best practice globally. The 2017 White Paper

proposes that South Africa should adopt an approach to immigration that is

strategically managed and which involves the whole of the government and

society approach led by the elected government.

Regulation for employment of foreign workers in South Africa The employment service act of 2014, was introduced to promote employment

while simultaneously decreasing the unemployment rates in South Africa. This

act also sets out the rules and regulations for admission of foreigners into

South Africa, their residence and their departure as well as the ability for

foreigners to work within South Africa. The Employment Services Act aims to

support the employment of foreigners which is consistent with the provisions

set out in the Immigration Act. The Act define any individual who is not a

South African citizen or does not have a permanent residence permit in terms

of the Immigration Act, is considered a foreign national. According to the Act,

foreign nationals employed in South Africa will be protected by fair labour

practices and may only perform work as authorised in terms of their work

visas. If an employer employs someone without a valid work visa, there would

be consequences for that employer. Nevertheless, the employee will still be

entitled to enforce any claim that he may have in terms of any statute or

employment relationship against his employer. The Act also stipulates that,

employers are obliged to ensure that, they have exhausted all recruitment

efforts and ensure that there are no South African citizens or permanent

residents within South Africa with suitable skills to fill a vacancy before they

recruit a foreign national. Once a foreign national is employed, the employer

needs to prepare a skills transfer plan for that person in that specific position

and employers may not have a foreign national engage in work that is contrary

to the terms of his/her work visa. Section 1 of the South African Constitution of


1996 identifies the achievement of equality and the creation of a non-racial

and non-sexist society as one of the founding values of its constitutional

democracy. Section 9 also guarantees the right of every person not to be

unfairly discriminated against, directly or indirectly, on the basis of race,

gender, sex, pregnancy, marital status, ethnic or social origins, colour, sexual

orientation, age, disability, religion, conscience, belief, culture, language or

birth. The Equality Act 2000, prohibits unfair discrimination (on the grounds

listed above), as well as hate speech and harassment in accordance with the

Constitution. In addition to these provisions, South Africa is a party to a

number of international human rights instruments, which promote the right to

equality and non-discrimination.

Recruitment practices of foreign nationals in South AfricaIn South Africa, the employment framework for foreign nationals working in

South Africa requires employers to confirm with the department of Home

Affairs. If South African employers employs a foreign national, the employer

and employee have to confirm employment in terms of the Immigration Act.

This has to be done within 90 days of arrival and then annually, otherwise the

foreign national will face losing his or her work permit and compromising a

chance at permanent residence. Recent amendments to the draft immigration

regulations mean that if a foreign national overstay their welcome, on a valid

visa, they could be banned from the country for up to 10 years. There's a

heavy burden of proof on foreign nationals coming to work in SA. Foreign

nationals coming into South Africa on a general work permit must give the

director general of home affairs proof that the worker is still gainfully employed

and provide a job description for that employee.

If a foreign national comes in on a specials skills visa or quota work permit,

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qualifications, relevant experience and professional registrations, the latest

South African Qualifications Authority (SAQA) evaluation and registration, a

copy of their valid passport, and proof that they have secured employment in

South Africa. As part of the compliance process, the migrant worker must

provide a letter confirming continued employment, as well as a copy of the

contract. If there is a change of employment, a release letter is needed from

the previous employer as is a copy of the prior contract. The result of non-

compliance can see the permit voided, the employee excluded from South

Africa and cost the employer a great loss in terms of investment and talent.

Some employers don't tell the department that they employ foreigners and risk

heavy penalties if they are found in contravention with the act. In terms of

specialised skills, a quota work permit is the only way for companies to issue

contracts to suitable candidates. A foreign national doesn't need an offer of

employment to enter the country and employers are required to verify their

international qualifications and confirm membership to professional bodies.

The department of Public Service and Administration also regulates

recruitment and employment of foreign nationals in the public service.

Policy on the Employment of Foreign Nationals in the Public ServiceIn recent years, the Public Service has experienced a serious loss or shortage

of skilled staff in a number of key occupations. Whilst the mechanisms

intended for developing the necessary skills capacity within South Africa but it

have not yet been fully implemented, alternative measures need to be taken in

the interim to meet the human resource needs in the Public Service. One such

alternative is to recruit foreigners from abroad. Public Service is now faced

with the challenge to manage serious staff and skills shortages in a number of

occupations in the Public Service.

In order to address these challenges, in 2002 South Africa adopted a Human

Resource Development Strategy for the Public Service that defines a number


of strategies to be rolled out until 2006. This strategy also included a Scarce

Skills Development Strategy that calls for a number of activities to be

undertaken in regard to the recruitment and provisioning of scarce skills in the

Public Service. The Department of Public Service and Administration (DPSA),

being a stakeholder in improving human resource management throughout

the Public Service, developed a Policy on Employment of Foreign Nationals,

to establish a uniform approach and practice. The policy is to assist to recruit

and utilize foreigners to address staff and skills shortages in their areas of

operation.

The policy is based on the employment framework and provisions provided for

in the Immigration Act, 2002, the Public Service Act, 1994, the Public Service

Regulations, 2001 and other measures reflected in collective agreements and

determinations made by the Minister. Emphasis is placed on the concepts of

“critical occupations”

and “critical skills” as the basis for the application of the policy as well as the

need to comply with the Immigration Act, 2002. The policy also stipulates that,

foreign nationals must be employed in critical occupations as determined by

departments, South African citizens and permanent residents must receive

preference and the recruitment of foreign nationals can only be considered as

a last resort. Contracts of employment must provide for the transfer of skills to

South African employees and the standard recruitment processes and

approaches are to be applied, except that the Department of Foreign Affairs

must be approached to facilitate the process if recruitment takes place in

terms of treaties and bi–lateral agreements.

Human Trafficking According to the Southern Cross Weekly forms of human trafficking found in

South Africa include sex trafficking, child labour, domestic servitude, organ

smuggling, child-brides, illegal child adoptions, debt-bondage, forced


surrogacy, and the use of body parts for muti. NGO and law enforcement

officials indicate South Africans constitute the largest number of victims within

South Africa. South African children are subjected to trafficking mainly within

the country. Girls are subjected to sex trafficking and domestic servitude; boys

are forced to work in street vending, food service, begging, criminal activities,

and agriculture. Men were also identified as victims of forced labour aboard

fishing vessels in South Africa’s territorial waters.

According to the report produced by the Office to Monitor and Combat

Corruption by the US Department of State, young men and boys from

Lesotho, Mozambique, Malawi, Swaziland, and Zimbabwe voluntarily migrate

to South Africa for farm work, including cattle herding; some are subjected to

forced labour and subsequently arrested and deported as illegal immigrants.

Forced labour is reportedly used in fruit and vegetable farms across South

Africa and vineyards in the Western Cape. The research also stated that, the

Government of South Africa does not fully comply with the minimum standards

for the elimination of trafficking however, it is making significant efforts to do

so. In May 2013, the South African parliament passed the Prevention and

Combatting of Trafficking in Persons Act, which was signed by President

Zuma in July 2013.

South Africa remains a primary source, destination, and transit country for

human trafficking. Human trafficking occurs internally between its provinces,

as well as externally across its South African borders.

There are reports of criminal syndicates from Russia, Bulgaria and Nigeria

operating in this sector. Internally, victims are targeted from economically

poorer provinces such as the Eastern Cape, the Northern Cape, and the Free

State and brought to cities such as Durban, Johannesburg and Cape Town.

Externally, across borders, victims are targeted from countries with regions

embedded by their own socio-economic and political problems. The main

causes of human trafficking include South Africa’s socio-political and

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as well as the low levels or lack of education. Corruption in government

departments, within law enforcement units and border-crossing patrols also

plays a role in hindering initiatives to prevent trafficking.

The broad definition is that human trafficking is modern-day slavery.

Narrowing it down, one finds that human trafficking has many components to

it, unremunerated work, kidnapping of people and killing them for body parts,

prostitution, and drug peddling, among others. In June 2017, Mail & Guardian

reported that human trafficking was in the rife in South Africa. It became a

focus of attention following the introduction of the controversial visa

requirements. In addition, South Africa has signed a “Preventing and

Combating of Trafficking in Persons Act aimed at preventing trafficking. It

defines trafficking to include the recruitment, transportation, sale or harbour of

people by means of force, deceit, the abuse of vulnerability and the abuse of

power for exploitation.

Conclusive RemarksSouth Africa have a burden of being on the receiving end of international

migration and has been evidently struggling to manage migration into the

country. There is a lack of research to determine the impact of illegal

immigrants on the resources of the country. Acceptance of bribes by border

officials is the contributing factor to the high undocumented migrants in the

country. Although it’s only a drop in the sea, The Directorate for Priority Crime

Investigation (Hawks) have made numerous arrests of police and border

officials for extortion of money from foreign nationals attempting to enter South

African borders.

In terms of protection of migrant labour and social rights, South Africa have an

adequate legal framework that and there are consequences for non-

compliance, however there are cases of forced labour and human trafficking. REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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South Africa is struggling in curbing human trafficking, although there have

been a number of efforts and arrests in this regard, it is far from enough to

eliminate the problem. In spite of the high employment rate especially with the

unskilled workers, there is an addition of migrants who are also unskilled,

fighting for the same few opportunities. Some of the debates regarding the

xenophobic attacks that have been evident in the country argue that, labour

competition in the unskilled labour market might have aggravated the attacks.

8.4 Social security for skilled professionals from the perspective of GATS, the CFTA and African regional free trade and trade in

service agreements

Introduction

Internationalisation of work is invariably associated with the movement of both

skilled professionals and other workers. At times, unlike most other categories

of (documented) migrant workers, skilled professionals are left with limited

social security coverage. Their access to social security benefits and

portability arrangements is often uncertain, weak and complex. This paper

explores the impact on the social security position of skilled professionals,

emanating from the key international instrument in this regard, i.e. GATS (The

General Agreement on Trade in Services) (in particular Mode 4), but also of

the recently signed AU Continental Free Trade Agreement (CFTA) and sub-

regional free trade and trade in service agreements of EAC, ECOWAS and

SADC, supported by the overarching Tripartite arrangements in this regard,

encompassing these three RECs.

Discussion


The relationship between the relevant rules contained in these instruments

and national social security systems is a complex one. One of the applicable

rules employed in trade in service agreements is the Most Favoured Nation

(MFN) rule, which requires of a member state to grant equal treatment to

services and service suppliers of different member states. One of the

obligations imposed on member states is the national treatment principle –

member states must accord to services and service suppliers treatment of

other member states no less favourable than they accord to their like services

and service suppliers. On the face of it, in the case of GATS, public social

security provision, such as a national pension scheme operated by a public

institution, appears to be excluded from the purview of these rules and

obligations. Nevertheless, due to the lack of specific guidelines and of clarity

of definitions used, it appears that introducing a private element in social

security provisioning, such as an opportunity to opt out of a public scheme, or

utilising private service providers, may render the relevant scheme subject to

the MFN rule and the national treatment obligation, and may prove to be

irreversible, at least from a WTO/GATS perspective. This would, debatably,

have the consequence of opening up the supply of social security services to

competition from outside the country concerned. Also, problems may be

experienced if a country's bilateral social security agreements, providing for

example for exportability of social security payments, contain different

provisions for different member states. On the other hand, the operation of the

national treatment obligation may assist a temporary skilled migrant worker

who contributes to the host country social security system: the migrant worker

may be entitled to equal treatment with nationals of the host country, as

regards access to social security benefits. These issues in principle also arise

under the CFTA and African sub-regional instruments emanating from the

EAC, ECOWAS, SADC and the Tripartite.

Conclusions and recommendations


Free trade and free trade in services agreements provide no guaranteed

access for service suppliers. In fact, the frameworks by and large allow

countries to keep or impose restrictions, and by itself contains no specific

provisions for facilitated entry.

It has been suggested that:

• The term ‘temporary movements’ of natural persons should be clearly

defined (so as to avoid confusion with permanent migration rules and

regulations in the case of these international, continental and sub-

regional agreements. For example, increased movement of health

workers on a temporary basis is an integral component of service

liberalisation and is especially significant for the health sector because

of its labour-intensive character. The agreements, however, do not

provide any definition of the term “temporary”, often defining it

negatively as excluding permanent migration.

• Temporary service professionals who are subject to home country

social security taxes should be exempt from similar taxes and

contributions in the host country as long as their period of work in that

country is less than the period required to obtain benefits in the future.

In the case that the service provider becomes part of the permanent

labour market (or seeks residence) past contributions can be calculated

and deducted with interest at the appropriate time.

• Alternatively, according to Chanda, social security contributions may be

deducted from earnings in the host country while the service provider

remains there, but the deducted earnings should be reimbursed at the

time of the professional’s return to the home country so as to safeguard

against cases where the person might become part of the permanent

labour force.

• The criteria for recognising the qualifications and experience of affected

service providers, equality in their wage and remuneration and relevant

social security taxes and benefits should be clearly addressed in the

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• The scope of horizontal commitments, as is the case with the number of

sectoral commitments, should be increased.

• Looking at commitments under free trade and trade in services

agreements alone does not provide the full picture. For example,

several European countries have programmes for less skilled, short-

term foreign workers implemented on a bilateral basis (e.g. with Eastern

and Central European and North African countries) to mitigate

immigration pressures and which do not comply with the non-

discriminatory obligation of the said agreements.

• Many low-income countries would like to see more skilled professionals’

movements. India lead a group of countries hoping for a “GATS visa”

that would allow access to any WTO member country for one to three

years.

Most existing concessions have limited significance for developing countries

since their comparative advantage lies in medium and low-skilled labour-

intensive services – the limited commitments that have been made under

these agreements refer almost exclusively to higher-level personnel,

especially to intra-corporate transferees, whose mobility could also be related

to other provisions covered by these agreements, such as (under GATS)

Mode 3 (foreign direct investment).

SUB THEME SEVEN (7) – SKILLS DEVELOPMENT AND PRODUCTIVE

EMPLOYMENT IN AFRICA

9.1. SKILLS DEVELOPMENT IN SUB-SAHARAN AFRICA. IS IT

ADEQUATE

Paper:


The aim of the paper is to evaluate whether appropriate and adequate

technical and vocational education and training is taking place in Sub-Saharan

Africa (SSA) so that enough investment in high-productivity industries can

take place to enable the bulk of its citizens to lift themselves out of poverty

and lead prosperous and fulfilling lives. It is estimated that currently around 40

per cent of the SSA population live below the international poverty level.

Background: The African Economy and School EducationThe decolonisation of Africa commenced in 1957 when Ghana regained its

independence. Most African colonies thereupon regained their independence

during the 1960s. At first there was a sense of optimism that Africa, freed from

its shackles, would soar up and prosper, but these hopes were shattered as

the 20th century wore on. Dictatorships, military coups and corrupt leaders

became fairly common phenomenon. This condemned millions of Africans to

poverty while a small elite usurped the wealth. This lead The Economist of 13

May, 2000, to label Africa as “The Hopeless Continent”.

But the Economist got it wrong: the African economy surged upwards in the

2000s; so much so that 11 year later it boldly announced “Africa Rising” on its

front cover (The Economist, 3 Dec. 2011). This set off what Horman Chitonge

(2015) has labelled the “Africa Rising Narrative” (ARN). In his book, Economic

Growth and Development in Africa, he carefully assesses this narrative.

His evidence is mainly economic. He shows that gross domestic product

(GDP) grew sustainably from 2000 to 2007, then declined in 2008 and 2009,

but recovered to the same level as before from 2010 onwards (Chitonge

2015:240-241) He points out that there are growth disparities between

countries, but „the majority of countries experienced positive growth, with

some – such as Nigeria, Mozambique, Ethiopia, Rwanda and Angola –

recording an annual average GDP growth rate of over 7 per cent over the

2000-2010 period‟ (Chitonge 2015:240). However, there is also a negative

side: He shows that, from 1980 onwards there has been little progress on key REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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issues such as national savings, fixed capital formation and agricultural

production. Even more worrying, says Chitonge, is the lack of transformation

of the economies of most African countries. The manufacturing sector

„accounts for only a tiny section of the exports of most African countries. The

larger share of export earnings for most countries in Sub-Saharan Africa

(SSA) still comes from agriculture, where productivity is actually declining‟

(Chitonge 2015:245)

Where there is not an over-reliance on agriculture, there is an over-reliance on

the exports of oil, or minerals and metals such as diamonds, gold, copper and

iron ore,i.e. raw materials. For instance, oil accounts for 87% of Nigeria‟s

exports and 91.3% of Sudan‟s while copper for over 70% of Zambia‟s exports

(Chitonge 2015:245). Chitonge concludes that „growth seems to be

concentrated within the commodity and services sectors, with little or no

linkage to the rest of the economy – thereby creating two Africas: the new and

rising, and the old and stagnant‟ (Chitonge 2015:245). What Chitonge‟s

analysis shows is that most African countries, especially those that depend on

a single source of wealth, have not diversified their economies. They have not

succeeded in beneficiating the raw materials they export by developing

processing and productive capacities, i.e. by developing a manufacturing

sector. Instead they import the finished products from the countries to which

they export the raw material.

Chitonge and many other writers on Africa ignore another serious drawback:

The existence of a large informal sector and extensive informal employment.

Although reliable figures are hard to come by, some of the most convincing

evidence is that at least half, possibly two thirds, of Africa‟s labour force is

working informally. For instance, Palmer (2004:36) presents a table of the

informal sector contribution to urban employment in 17 African countries in

2000. It shows that informal employment as a proportion of total urban

employment in 5 countries ranged from 70 to 85 percent, in 8 from 30 to 69 REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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percent and in 4 from 15 to 29 percent. The average for the 17 countries is

52%. The five countries where informal sector workers as a percentage of

total urban employment was above 70% are Uganda (84%), Zambia (81%),

Ghana (79%), Gambia (72%) and Mali (71%). The 4 countries where it was

below 30% are South Africa (17%), Botswana (19%), Mauritius (24%) and

Morocco (28%).

The drawback of informal employment and self-employment is that it is mostly

situated in low-skill, low productivity and low pay enterprises. It is also not

regulated by the state or by collective bargaining agreements and institutions

such as trade unions. Working conditions are thus often poor and unsafe with

long working hours.

With regards to school education, the foundation on which sound VET is built,

the picture is also mixed. A recent World Bank Study (World Bank 2012) finds

that, over the past 20 years, educational levels have risen sharply across the

sub-continent. However, there is still a long way to go compared to what

Europe and Central Asia have achieved. Whereas in Europe and Central Asia

there was a gross enrolment ratio of 91% at upper secondary school level in

2009, in SSA it was only 21%. A further matter of concern is that children who

are at school are not receiving an education of sufficient quality. Combined

test scores from three international learning assessment programmes have

found that „Primary school students in low-income Sub-Saharan African (SSA)

countries have, on average, learned less than half of what is expected of

them‟ (World Bank 2012:6). It was also found that children from higher income

countries in SSA perform better than the average, while children from poorer

SSA countries perform worse.

Education in SSAEducation is the foundation on which technical and vocational training is built.

A recent World Bank Study (World Bank, 2012) contains considerable useful

and up-to-date information about the level of education in SSA. It finds that, REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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over the past 20 years, educational levels have risen sharply across the sub-

continent. However, compared to what Europe and Central Asia (E&CA) have

achieved, SSA still has a long way to go. Whereas in E&CA there was a gross

enrolment ratio of 91%at upper secondary school level in 2009, in SSA it was

only 21%. (World Bank, 2012:3, Figure 0.1). The low retention rate of schools

in Africa indicates that there is a high drop-out rate. The high drop-out rate

„could be an indication that the type and quality of schooling provided is

inadequate or does not meet the expectations and needs of students and

parents‟ (World Bank, 2012:3). The drop-out rates of children who are poor or

live in rural areas are among the highest.

Another matter of great concern is that even those children who are at school

are not receiving an education of sufficient quality. Combined test scores from

three international learning assessment programmes have found that „Primary

school students in low-income Sub-Saharan African countries have, on

average, learned less than half of what is expected of them‟ (World Bank,

2012:6). As is to be expected, children from richer countries perform better

than the average, while children from poorer countries perform worse. In spite

of the low standard of education, it is pleasing that empirical evidence

suggests that education of girls in particular, is correlated „with significant

health and social benefits‟ (World Bank, 2012:8).

On the other hand, it is extremely disappointing that the World Bank study

found that „the rise in educational attainment of the labour force in the region

appears to have had little impact on average labour productivity. The weighted

average labour productivity for Sub-Saharan Africa, across all sectors, has

remained at practically the same level since 1985. At the same time, the

average level of schooling has been increasing across the region. ‟ The World

Bank surmises that the lack of impact of rising education on labour

productivity could be due to the poor use of human capital (World Bank,

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State Policies on Skills Development in Botswana, Zambia, Tanzania and GhanaAlthough Johanson and Adams (2004) found that the most common form of

apprenticeship training in Africa takes place informally at the workplace, the

governments of many African countries have vocational training strategies and

programs in place. In this section I discuss the policies that Botswana,

Zambia, Tanzania and Ghana, four countries where I have conducted

research, have in place. The research was conducted during brief visits in the

countries over a three-year period from 2015 to 2017.

BotswanaThe skills development strategy of Botswana bears many similarities to the

South African National Skills Development Strategy. Its National Human

Resource Development Strategy (NHRDS) was approved by the Botswana

government’s Cabinet in January 2009 and officially launched in 2013 with the

passage of the Human Resource Development Council Act. The Act

established a Human Resource Development Council (HRDC) that became

operational on 8 November 2013. A key function of the HRDC is to formulate

Human Resource Development Plans for key sectors of the economy. To this

end it established Sector HRD Committees that have to produce sector-

specific HRD Plans to ensure a linkage between sector specific skills

demands and the supply of the necessary skills. No less than 12 sectors were

identified on the grounds of their strategic importance to the economy. The 12

sectors are: 1) Mining, Minerals, Energy and Water Resources, 2) Tourism, 3)

Creative Industries, 4) Agriculture, 5) Health, 6) Information and

Communication Technology, 7) Finance and Business Services, 8) Education

and Training, 9) Public Sector, 10) Transport and Communication, 11)

Manufacturing, and 12) Research, Innovation, Science and Technology. By


the end of 2015 the first seven sector committees had already been

established.

A Human Resource Development Fund (HRDF) has also been established.

The fund is to be used for training and is operated by means of a levy grant

system. Companies pay a levy into the Fund and are reimbursed the costs

they incur for training their employees. The size of the levy is based on an

employer’s turnover. If a company’s turnover is below P500,000 there is no

levy, if it is between P500,000 to P2billion it pays 0.2% of its turnover, and if in

excess of P2billion 0.05% of turnover. The amount that can be claimed for

training is very generous. It ranges from 7.5 times more than the levy for

training expenses below P1,000 to twice as much as the levy for expenses in

excess of P5,000.

Workplace training is encouraged as all workplace-based training costs are

refunded by the HRDC. In order to qualify for a refund a Workplace Skills

Training Plan has to be drawn up and approved before commencing on the

training (HRDC 2014:2-23). By 2016 three of the sectors, Agriculture,

Tourism, and Mining, Minerals, Energy and Water Resources (MMEWR) had

completed their HRD Sector Skills Plans and the HRCD had launched the

remaining five Sector HRD Committees. In addition, the HRDC signed a

Memorandum of Understanding with Statistics Botswana, Ghanzi Brigade and

the Barefoot College in Tilonia, India, where seven women from marginalised

communities were trained to become Solar Energy technicians (HRDC

2016:18-19).

The MMEWR Sector Committee identified skills deficiencies of TVET-trained

artisans, so it initiated an upgrade of their training with the assistance of the

Botswana Chamber of Mines in collaboration with the German Gesellschaft für

Internationale Zusammenarbeit (GIZ). The project was launched at the

Botswana College of Engineering Technology in Gaborone and the

Francistown College of Technical and Vocation Education. The total


enrolment for years 1 and 3 at Francistown was 160 and 72 at Gaborone

(HRDC 2016:22).

The mismatch of supply of graduates with demands from the economy in

Botswana has become a serious problem over the years. Hence both the

Tourism and Agriculture HRD Sector Committees paid special attention to this

problem. In tourism planning was done in partnership with the industry and

tertiary institutions and several of them formed partnerships with hotel in

Gaborone and Francistown. The Agricultural Sector Committee disseminated

its Sector HRD Plan to the Botswana University of Agriculture and Natural

Resources with the purpose of sharing with the University what the priority

skills are that employers need (HRDC 2016:23-24).

In order to empower workplaces to improve workplace learning the HRDC

introduced Work Skills Plans. During 2015 it conducted 10 Workplace

Learning workshops in various places across the country and paid workplace

visits to 19 industries. However, industries have been slow in embracing the

HRDC‟s policies and programmes as only 28 out of the 48 levy payer

industries submitted work skill plans (HRDC 2016:26-28).

The Botswana HRDC has launched itself well during the first three years of its

existence with an active and carefully thought out strategy. However, the

uptake has been low and its outreach and impact are still very limited.

ZambiaA major feature about the Zambian government’s policy towards skills

development is that it emphasizes entrepreneurial education and training as

much as it does technical and vocational education and training. This is

reflected in the very name of the authority in charge of skills development in

Zambia: It is called the Technical Education, Vocational and Entrepreneurship

Training Authority (TEVETA). The origin of TEVETA dates back to August

1994 when the Minister of Science, Technology and Vocational Training

appointed a national Task Force to review Government policy on technical

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necessary for the training system to meet new and emerging challenges in the

national economy.

The Task Force submitted its recommendations in January 1995 which the

Government used to draw up a new policy that gave equal emphasis to

entrepreneurial training by passing the Technical Education, Vocational and

Entrepreneurship Training Act, referred to as the TEVET Act No. 13 of 1998.

The Act led to the establishment of the Technical Education, Vocational and

Entrepreneurship Training Authority (TEVETA) whose responsibility is to

interpret and implement the TEVET policy. The functions of TEVETA include,

amongst others, to:

• Regulate and coordinate apprenticeship and trade testing facilities;

• Develop national curricula in consultation with all stakeholders;

• Set minimum standards and qualifications for any occupation, skill,

technology or trade for institutions in accordance with developments in

industry;

• Regulate and conduct national examinations relating to technical

education, vocational and entrepreneurship training;

• Approve curricula and standards of certificates in institutions

established or registered under this Act;

• Register institutions and cancel the registration of an institution

established under this Act (TEVETA 2018a).

Over the years TEVETA increased the scope of its operations. In May 2009 it

officially launched a TEVET Learnership Scheme on a pilot basis. The TEVET

Learnership Scheme „is a dual based learning pathway where the employer

becomes the experience provide to add value to the theoretical training

offered by training providers. A TEVET Learnership is therefore a training

method that combines theoretical training with relevant work experience. ‟ The

scheme was piloted by the Zambia National commercial Bank (Zanaco) as the

employer and three training providers (TEVET News 2009:3).


By 2016 TEVETA had accredited almost 300 training providers about a third

of which are public institutions supported by different ministries, including the

Ministry of Higher Education (CoL 2016: ii). On 11 November 2016 the

Minister of Finance announced the introduction of a Skills Development Fund

during the presentation of the 2017 National Budget in order to address

challenges of inadequate skills among craft individuals, artisans, technicians

and technologists. The Minister said that the introduction of the Skills

Development Fund was part of the long-term financing solution for technical

and vocational education and training (TVET). He added that the Fund would

be jointly managed with the private sector to ensure developed skills were

relevant to the requirements of industry (TEVETA 2018b).

In addition to TEVETA, the Directorate of Vocational Education and Training,

a department within the Zambian Ministry of Higher Education, administers

funding for 24 public training institutions. In 2012 there were approximately

35,000 students enrolled for institution-based training of which roughly 8,000

graduated at the end of the year (CoL 2016: ii).

According to the Commonwealth of Learning the TEVET system in Zambia

still faces a number of significant challenges, including the following:

• Training programmes that are not responsive to market needs;

• Low priority for training workers in the informal economy;

• Girls and women still do not have equal access to TEVET; and

• Poor quality of instruction because many teachers do not have recent

experience in industry and/or lack pedagogical qualifications

Tanzania

The Tanzanian Government adopted a different approach from Zambia to

skills development. It has drawn a strong and clear distinction between

vocational and technical education and training. Vocational education and

training (VET) constitutes a lower level of education while technical education


is at a higher tertiary level. This has led to an institutional split between VET

and technical education. VET is administered and implemented by the

Vocational Education and Training Authority (VETA) while Technical

Education is overseen by the National Council for Technical Education

(NACTE). VETA and NECTA offices are physically and geographically

separated from each other by about 10 kilometres. This approach has had

consequences for how Tanzanian technical and vocational education has

developed.

VETA was established by an Act of Parliament No. 1 of 1994, the Vocational

Education and Training Act. The Act charged VETA with the broad tasks of

„coordinating, regulating, financing, promoting and providing vocational

education and training in Tanzania. The history of VETA dates back to 1940

when the Apprenticeship Ordinance was enacted to guide training in industry.

‟ The National Vocational Training Division was established 34 years later in

1974 (VETA 2018). NACTE was established by The National Council for

Technical Education Act No.9 of 1997 with the function of registering and

accrediting technical institutions. By the end of January 2018, it had 571

institutions and university department on its registration list. Of these 425 had

been granted full registration status, 81 provisional, 7 were at preparatory

stage, and 58 were unspecified (NACTE 2018). In 2010 VETA conducted a

nation-wide tracer study for 2004-2009 graduates of vocational education and

training on Tanzania mainland. The sample consisted of 4,923 VET graduates

of which two-thirds were males and one-third females. It used two

questionnaires, one for VET graduates and the other for employers.

The study found that the ten most popular occupations ranked by the number

of graduates were, in order of ranking, 1) textile and clothing and tailoring, 2)

motor vehicle mechanics, 3) carpentry and joinery, 4) electrical installation, 5)

computer applications, 6) secretarial, 7) masonry and bricklaying, 8) welding

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distinct preference for certain VET occupations between female and male

graduates. Females‟ choice of preference were clothing and textile (43% of all

female graduates), business administration (18%), then hospitality and

tourism (12%). Males preferred motor vehicle mechanics (31%), construction

(30%), followed by electrical installation (VETA 2010:18-21).

Of the sample of 4,923 graduates 67.4% of the males were employed and

63.5% of the females. The major reason by far for being unemployed was

because they were in training although they would have preferred to work. Of

the unemployed males 47.5% were in training and unemployed females

33.6%. The second largest reason among both males (22.3%) and females

(32.1%) for being out of work was the lack of resources to start a business

(VETA 2010:28-30). In evaluating the findings of the tracer study, it was found

that the employability of VET graduates needed to be enhanced by including

training for self-employment in urban and rural settings, that there has to be

continuous upgrading and updating of skills, and the training for people with

disabilities required improvement. The study’s concluding findings included,

amongst others, that access to VET was less equitable in terms of educational

background, geographical distribution and gender, that female participation in

VET was concentrated more on “soft skills”, and that there was a lack of

systematic and strong partnerships with industries in training. What is clear

about state involvement in Tanzania is that it has a fairly long history and

firmly established institutions with considerable outreach over the country.

GhanaGhana currently has a population of approximately 27 million people and a

labour force of 13.6 million of which an overwhelming proportion work in the

informal sector. According to Baah-Boateng and Baffour-Awuah (2015:5) 88%

of total employment is found in the informal sector. Most of the labour force

work in agriculture (44.7%) and services (40.9%). Only 9.1% are employed in


the manufacturing sector. The education level of most of the working age

population is very low. Almost three-quarters (72.8%) had either no education

or only up to primary school level. Those with vocational or technical

education constituted 2.4%, university or polytechnic education 4.1%, and

people with professional training like teachers, nurses and agriculturalists

accounted for 1.5% in 2013. Students who complete their Junior High School

have a choice what to do next. Of those who do not or cannot proceed to

Senior High School 10% enter formal TVET institutes in the country and an

estimated 15% enter into informal apprenticeships. The remaining 75% either

enter low-skilled jobs or remain unemployed.

Unfortunately, „there are negative perceptions about TVET in Ghana, to the

extent that many people see it as a dumping ground for those unable to

advance through the grammar education system‟. A study done on the topic

concluded that „there is a widely held perception in Ghana that only people

who are academically weak undertake technical and vocation education. A

significant proportion of current TVET trainees, particularly in the inform sector

(primarily apprenticeships), are therefore labelled as school dropouts, which

impacts on the self-esteem and external perceptions of trainees‟ abilities‟.

Nonetheless, the Ghana government has a number of diverse institutions and

programs aimed at providing technical and vocational education and training.

The diversity of institutions is a strength but also potential weakness as it

creates contestation among them.

Council for Technical and Vocational Education and Training (COTVET)The most important institution is the Council for Technical and Vocational

Education and Training (COTVET), which is a national body set up by an Act

of Parliament. Its function is to co-ordinate and oversee all aspects of

technical and vocational education and training in the country. Its major

objective is to formulate policies for skills development across the broad

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(COTVET 2018). COTVET is an agency under the Ministry of Education in

Ghana, but its work, in terms of regulation, in terms of overseeing, cuts across

16 different Ministries.

COTVET was created in 2006, but its work essentially started round about

2010. It was tasked with the responsibility of overseeing and coordinating all

participants, bringing the skills supply side and demand side together, and

ensure standardisation. It started with the implementation of three different

TVET integrated products aimed at reforming the TVET landscape.

The first one is called the Development of Skills for Industry Project, a five to

six-year project, that was still running at the end of 2017. With the aid of

funding from the African Development Bank its task is to build state of the art

institutions equipped to train people with modern technology. The second

project was the Ghana Skills for Industry Project that ended in December

2016. It was sponsored by the World Bank with the aim of building capacity for

COTVET and other stakeholders, especially those that are involving in

science and technology research. It also introduced one very important aspect

of skills development in the country, a Skills Development Fund. It is a

challenge fund available to individuals, corporates and any entity that has a

need for skills upgrade, skills improvement or technology adoption. They are

free to apply and get a grant if successful. The third project largely focusses

on the informal sector. It was running in August 2017 and sponsored by

German Government with GIZ as the chosen principal implementer. Its aim is

to formalize the informal sector in order to downsize it. In order to achieve

standardization COTVET has introduced and advocated competency-based

training (CBT). This was done in close collaboration with industries. This is

aided by having a TVET Qualifications Framework in Ghana.

Returning to the Skills Development Fund, it is a grant that is given to

enterprises on the demand side to apply for training of their workforce in

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providers. They may apply for funding in order to introduce new training

methods that are not otherwise available for people in the industry. In addition,

the Skills Development Fund uses a challenge fund approach. It does so for

enterprise in more remote rural area or informal sector. With the aid of funding

from the World Bank they use the challenge fund as a demonstration, as

some kind of taster, so when the employers have tasted and seen the

benefits, they themselves can go ahead to invest in further training.

The challenge fund operates in the following way. The Skills Development

Fund puts out a call for proposals and invites applicants to submit a concept

note. When the concept note is evaluated, those who pass are given the

opportunity to write a more detailed proposal and submit. It is given to outside

technical evaluators. The enterprises that make the grade are then visited,

after which an approval committee makes the final choice. There has been a

strong monitoring and evaluation of the outcome. In the first phase that

commenced in 2011 and ended in 2016 the Skills Development Fund

disbursed grants worth more than 50 million Ghanaian Cedi (USD 11 million).

It is claimed that 646 grantees benefited from the fund which then extended

the training to over 40,000 firms where more than 100,000 individual workers

received training. As a result, there was a productivity improvement of 46%

overall. Both Danida and the World Bank are said to have done their own

independent assessments and confirmed the results. Consequently, Danida

agreed to renew its funding for the second phase.

The National Vocational Training Institute (NVTI) was set up by an Act of Parliament (No. 351 of 12th January, 1970). Its functions, as laid down in the Act, include the following:

• To organize apprenticeship, in-plant training and training programmes

for industrial and clerical workers and train Instructors and Training

Officers required for the purpose;


• To provide for vocational guidance and career development in industry;

• To develop training standards, and evolve effective trade testing and

certification policies and programmes;

• To initiate a continuing study of the country's manpower requirements

at the skilled worker level.

The Institute has a large number of departments each with a long array of

functions, as well as councils and committees, making the NVTI a large and

complex organisation. The Departments with extensive functions are the

Informal Apprenticeship Department, Testing Department, Training and

Development Department, Monitoring and Evaluation Department, Institutional

Training Department, and Counselling and Career Development Department.

The Institute’s geographic range is extensive, covering the whole country, with

about 37 training centres. In addition, it has 229 vocational institutions and 40

(health) care givers registered with it. In one year it trains roughly 40,000

people and tests around 80,000. Not only does the NVTI train, it also does

theoretical and practical tests and exams. It then certifies those who are

deemed competent. There are about 104 different occupations for which

students can be tested, and within each occupation there are four levels.

With such an extensive outreach, the question arises whether the NVTI is able

to provide high quality training. A site visit at one of its training centres in

Accra which takes on about 170 students per year, some of the lathes were at

least 37 years old, having been installed in the 1970s. Others were supplied in

1997, making them 20 years old and that is no long of use in industry. None of

the lathes used for training had CNC (computer numerical control) which is

quite standard in industry.

Conclusion:Unlike Botswana, it is clear that skills development institutions have been in

existence for a long time in Ghana, some for almost 40 years. In addition,


there are also a number of well-established government-based training

institutions. However, this is also a weakness as it duplicates functions,

spreads scarce resources more thinly, and creates conflict between them.

There is a rift between COTVET and NVTI with NVTI suffering from a

shortage of funds and training students on dated machinery no longer in use

by industry. ICCES is even less well funded and relies on poor communities in

many regions to supply the necessary facilities, equipment and tools required

for training.

There is a move afoot to unite all the different training institutions under one

umbrella, the Ministry of Education. This move has been welcomed by both

the NVTI and ICCES. As David Mensah put it: Government’s thinking is that

all the skills training institutions in the country, between 12 to 15 of them, are

to be moved from their various ministries like Employment and Labour

Relations, Agriculture and Transport and Industry and all that, moving all the

skills training institutions to Minister of Education. So, this whole idea of

bringing all of us under Education to rather focus, I think is good.

9.2 Youth Employment and Skills Development in Africa: Lessons from Botswana’s Experience.

AbstractThe paper focuses on youth employment opportunities as well as issues

around skills development in Botswana. The paper commences by providing a

brief historical account of the country’s political economy, before providing an

account of employment trends as well as a brief account of skills training

opportunities meant to empower the youth across the country. The paper

argues that while Botswana’s youth empowerment initiatives, which include

the National Internship Programme, the National Youth Fund and the Young

Farmers Fund may have had to grapple with a raft of challenges, these


initiatives have certainly scored some commendable successes and therefore

do possess rich and positive lessons for the rest of the African sub-region.

The paper concludes that foresight, political will, socio-economic and political

stability rank among the key object lessons to be learnt from Botswana’s youth

employment experience.

IntroductionOne of the greatest challenges faced by the Africa continent is that of poverty,

and this is largely associated with a number of related challenges which

include unemployment and underemployment. While poverty on the African

continent has always been pervasive, the situation was clearly exacerbated by

the economic crisis of the last decade. The problem of unemployment on this

continent does cut across all age groups, and yet youth are among the most

affected. A number of countries in Africa have, as a consequence, identified

youth unemployment as a matter of national security (Motlaleng and

Narayana, 2014). Given that this challenge tends to threaten the social,

economic and political stability of any given country on the continent, most

governments are ceased with the question of how best to deal with the matter.

The term youth according to the World Bank (2012) refers to persons aged

between 15 and 24. Botswana. Youth unemployment on the other hand refers

to the labour force ages 15 to 24 without work but available for seeking

employment (Motlaleng and Narayana, 2014). It should be noted, however

that in the context of Botswana the age group 15 to 35 has at times been used

to define youth for purposes of policy development.

In terms of magnitude of the problem, within Africa, 60% of the continent’s

unemployed are youth, with youth unemployment in most countries often

doubling that of adults. Thus, youth unemployment in Africa is a major issue of

concern. For instance, within the SADC region, of which Botswana is a part,

two thirds of the population are below the age of 35 years, and a substantial

segment of this figure is unemployed. This suggests that large segments of REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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the youth population in Africa are thus affected. Motlaleng and Narayana

(2014) note that while unemployment destroys the economic and personal

welfare for all those affected by it regardless of age, the destruction is most

pronounced when it comes to the youth. To this unfortunate dynamic must be

added the gender dimension of youth unemployment, which shows that

females are far less likely to be employed than males. Across Africa, youth

unemployment has created so much discord that in some countries, youth

have often ended up taking, the dangerous step of migrating from their

countries, sometimes across dangerous seas, in search of greener pastures.

Many have perished on the rough seas in search of the elusive goal of

employment.

In the northern part of the continent in particular, some youth have perished

while attempting to cross the Mediterranean Sea into Europe in search of

economic opportunities. In the southern part of the continent equally large

numbers of youth find their way especially into South Africa, the economic hub

of the continent, hoping often against hope to find employment in that country.

In the case of South Africa, the influxes into that country have at times irked

the locals, triggering off xenophobic attacks as the unemployed youth of South

Africa try to “defend” their turf from what they perceive to be “intruders” out to

steal their jobs. Paradoxically, the out migration is happening despite the fact

that many governments on the continent have drawn up sometimes elaborate,

complex and advanced technical and vocational education training (TVET)

programmes, as well as launch institutions that provide practical and

theoretical training leading to occupational qualifications that are meant to

benefit the youth.

A few examples of employment related initiatives that have been put in place

within the Southern African region will suffice. In South Africa, for instance,

initiatives in place have included the National Youth Development Agency

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entrepreneurial skills and motivation to facilitate business start-ups and

growth. In Kenya, the government inter alia, initiated Project Baobab, targeting

the youth (especially females) who receive small start-up grants, while in

Swaziland the government launched the Youth Entrepreneur Fund (YEF) for

similar purposes (World Bank, 2013). In Malawi youth benefit from such

initiatives as the Youth in Agriculture, meant to attract young people to work

on the land (AfDB, 2014). Despite all these efforts, the reality on the ground is

that these initiatives have not had the desired impact in terms of employment

creation among the youth in Africa, and for that reason the unemployment

spectre continues to loom large. Let us consider the situation of Botswana,

beginning with an overview of the country’s political economy.

Unemployment Trends: BotswanaAccording to Statistics Botswana (2011) in the 1990s, and early 2000s,

unemployment was estimated at between 20 and 23%, and by 2005 it fell to

17.6%. In 2011 the unemployment rate averaged 17.8%, which translated to

126, 349 unemployed persons, in a country with a labour force of 710 600.

Predictably, female unemployment was higher (at 21.4%) than male

unemployment (14.5%). As can be imagined, unemployment rates have been

higher in rural areas than in urban. Tellingly, Statistics Botswana (2011:5)

lamented that, “The age group distribution indicates the highest

unemployment rate of 41,4% is among the 15-19 years age group followed by

the 20-24-year age group of 34.0 percent”. The age groups mentioned above

both fall under the label of youth. Additionally, it emerged that the labour force

which attained some secondary education had the highest unemployment rate

at 24.4 percent. Statistics Botswana (2011) also pointed out that this group

constituted 46 percent of the overall figure of 126, 349 of the unemployed

persons across the country. These figures suggest that youth with some

education are among the most unemployed in Botswana. According to figures

released at a Youth Employment Summit held in 2016, nationally the


unemployment rate stood at 20% in 2013, while poverty levels stood at 19%.

In that scenario, youth unemployment was said to account for 20% of total

unemployed labour force (World Bank, 2015). Two thirds of the unemployed

youth in Botswana were said to be under the age of 30 years.

Thus, despite high levels of economic growth (alluded to above),

unemployment levels in Botswana have remained unacceptably high.

According to Siphambe (2007), the reason for the seemingly contradictory

scenario (of high economic growth rate and yet equally high rates of

unemployment) is that Botswana‟s high economic growth rate was mainly

driven by one commodity - diamond mining - that was not matched by

significant employment creation, due to the capital-intensive production

structure and absence of beneficiation from diamonds. This has been so

because (until recently) apparently no industries had been set up to process

the diamonds further before being exported. Thus, the absence of

beneficiation had meant virtually no additional jobs were created in the

market.

As noted, the situation changed only recently as much of the diamond

processing work has since been localised. Still only a limited number of jobs

have been created as a result of this positive development so far. Additionally,

the lack of diversification of Botswana‟s economy has meant the economic

base has remained small. Apart from the limited job opportunities, apparently

the youth in Botswana tend to lack employment opportunities essentially

because they have lower on-the-job skills (CSO, 2008). This is something the

government has taken steps to address with seriousness of purpose, as will

be noted below. Thus, in Botswana, youth unemployment is quite high at a

staggering 45.9% (Statistics Botswana, 2014).

Apart from unemployment, there has been concern over underemployment,

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jobs in the informal sector (World Bank 2015). As Kuhlmann (2018a: 24) has

observed, “Then there are hundreds of graduate prudes who are waiting

tables, scrubbing floors, tending gardens – doing anything just to earn a living.

Hundreds more are just sitting at home waiting for that telephone call inviting

them for a job interview. The call hardly ever comes”. The author further

quotes another piece of research whose findings established that young

people in Botswana face significant challenges in terms of finding decent

work, many of them end up in poor quality jobs and get paid poorly because

they settle for any kind of employment as they are desperate for any means to

feed their families” (Kuhlmann (2018a: 24).

Thus, graduate underemployment and blatant exploitation have emerged as

issues of particular concern. Sadly, high rates of unemployment tend to be

associated with poverty, which in turn might be associated with a plethora of

social ills (Mafela, Maundeni & Mookodi, 2011). For instance, there tends to

be increasing deviance and crime among youth which phenomenon, among

other factors, is attributable partly to high levels of youth unemployment

(Balogi, 2004). To these concerns must be added other challenges faced by

the youth including HIV and AIDS, drug and substance abuse, violence, pre-

marital sex, teenage pregnancies and crime (Statistics Botswana 2014;

Mafela et al, 2011). In regard to HIV and AIDS, research findings suggest that

unemployment may lead to risky sexual behaviours when young people

search for alternative means to survive the harsh economic circumstances

(BIAS 1V 2013 cited by Kuhlmann (2018b:24). Underemployment and low

wages have forced some youth, especially females, to supplement their

meagre wages through commercial sex work. It is for these and related

reasons that the unemployment problem, among associated challenges like

underemployment and low wages, could not be ignored. The Government of

Botswana took the bull by the horns and came up with a raft of mitigating

initiatives. The Government of Botswana has, over the years, made deliberate

efforts to create economic opportunities for a considerable fraction of the REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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country’s youth. The initiatives in place have included skills development as

well as access to start-up capital for income generating projects. These are

considered in considerable detail in the paragraphs that follow.

Government Initiatives to Stave off Youth UnemploymentAs, noted, the Government of Botswana did not simply fold its arms in the face

of this time bomb that is the extremely high rate of youth unemployment. The

authorities set out to ensure that the youth received opportunities to realise

their potential. As way back as 1996 parliament passed the National Youth

Policy and this fell under the Ministry of Labour and Home Affairs. The policy

was revised in 2010 under the new Ministry of Youth, Sport and Culture (GoB,

2010). This Ministry was subsequently (2016) renamed the Ministry of Youth

Empowerment, Sports and Cultural Development. According to the GoB

(2010) the National Youth Policy is guided by an Action Plan whose brief, inter

alia, includes addressing issues around the thorny issue of youth

unemployment. The actual initiatives are discussed below.

The authorities appreciated that youth unemployment posed a major

development challenge to Botswana despite the impressive economic growth

rates being posted by the country (Orukut, 2013) The Government of

Botswana has over the last few decades designed a number of specific

interventions that these targeted the youth. These included the National

Internship Programme, the Youth Development Fund (YDF) and the Young

Farmers Fund (YFF). The National Internship Programme (NIP) is an initiative

that sought to address the issue of skills development of the youth of the

country. The NIP involves placement of unemployed graduates in government

and private sector organisations to enable them to acquire skills to enhance

their chances of getting permanent employment. In particular there is

emphasis on institutional financing to provide young people with access to

finance to facilitate self-employment activities and entrepreneurial skills

development (GoB 2009). Degree and Diploma holders are placed for a REPORT ON THE 8TH ILERA REGIONAL CONGRESS – MAURITIUS 2018

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period of 24 months to gain on-the-job skills, and during the placement period

interns receive a monthly allowance (MLHA, 2011).

The NIP was set up to offer unemployed citizen-graduates an opportunity to

develop work skills and experience that will support them in the transition from

school life to the world of work. This would be realised through attachments to

various agencies. The NIP has not been without its fair share of criticisms.

Some critics have referred to it as the “failed internship programme‟ (Sunday

Standard, 2018), while others have alleged the setting up of the programme

was politically motivated hence it was doomed. This accusation relates to the

fact that the programme was launched ahead of crucial national elections that

occurred in 2009 (Diraditsile (2017). Certain critics have stated that the

programme only succeeded in providing temporary exploitative employment

for very few young people. Some have peddled claims that most young people

who are involved in the programme have not gained sufficient professional

training and skills due to weak monitoring and job shadowing arrangements

(Nthomang and Diraditsile, 2016).

There have also been concerns that the programme is too expensive at

P1400 per month per individual. The feeling is it’s not sustainable. However,

individuals who advance such arguments fail to appreciate the bigger picture.

The fact of the matter is scores of youth have enormously benefitted from this

initiative. On balance its positives far out-weigh its negatives. The Youth

Development Fund (YDF) is a youth empowerment scheme that supports the

launching of youth enterprises. Activities involved include assisting youth who

have dropped out of school with funds to start self-employment income

generating projects. The YDF is managed by officers from the Ministry of

Youth Empowerment, Sport and Cultural Development (MYSC, 2006). The

fund accords priority to projects aimed at promoting such ventures as

agriculture, tourism, services, and the manufacturing sector (Min of Youth,

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There are two categories of enterprises through which the funds for the facility

are availed. One category is funding in the region of P50 000 to P 100 000 per

project for Micro and Small-Scale Enterprises. Another category is for Medium

Scale Enterprises, with funding ranging from P101 000 to P450 000 per

project (Min of Youth, Sport and Culture, 2014). According to the AfDB (2012)

disbursement to the fund has progressively risen from P 3 million in 2005 to

P60 million2010; doubling to P120 million in 2011. Also, of particular note is

the fact that the fund has been expanded to include youth aged 15 – 35 years.

This development is consistent with the provisions of the country’s Economic

Diversification Drive which calls for the creation of an entrepreneurial culture

among the country’s youth. One key challenge faced by the YDF is that

resources are never sufficient (despite the country’s upper middle-income

status), meaning not everyone requiring the fund will get access. Some youth

have expressed concern that ideas that they had floated may have ended up

in wrong hands, allegedly, violating intellectual property rights in the process.

There have also been concerns expressed to the effect that the turnaround

time from submission of application to receiving the funds could improve. The

feeling among some is that there also tends to be too much red tape in some

instances, resulting in implementation delays. Although the youth receive

some training, concern has been expressed to the effect that the orientation

period is rather too short and also that often the youth end up being thrown to

the deep end with limited skills before they are ready to swim. Other

commentators have expressed concern that at times, there is lack of proper

ownership of the „letter and spirit‟ of particular projects given that some youth

use consultants to draw up „bankable‟ project proposals on their behalf even if

their (the youth’s) own hearts may not be in the particular projects. Lack of

ownership in that sense results in half-hearted attempts a project

implementation, resulting at times in project failure. But these concerns are

clearly an exception rather than the rule. Numerous success stories have

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The Young Farmers Fund (YFF) involves providing graduates of agricultural

colleges with funds to start sustainable self-employment projects in the

agricultural sector. The fund targets Degree, Diploma and Certificate holders

and provides agricultural loans to start sustainable agricultural projects in an

effort to tackle youth unemployment in the country (MFDP, 2006). The YFF is

managed by officers from Citizen Entrepreneurial Development Agency

(CEDA) which agency was established by the Government of Botswana to

provide financial and technical support for business development with a view

to promoting viable and sustainable citizen owned business enterprises.

CEDA, which was incorporated as a company limited by guarantee, is a

financial assistance initiative which can also be accessed by the youth (CEDA,

2012). CEDA‟s mandate is to promote viable and sustainable citizen owned

business enterprises; hence it is for this reason that this agency manages the

YFF. The two agencies have worked well together for the common goal of

youth employment in the country.

Other than that, youth can also benefit from capacity building in

entrepreneurship through access to an organisation called the Local

Enterprise Authority (LEA) which helps individuals start and manage

sustainable projects to provide both income and self-employment

opportunities. LEA‟s (2004) mandate is to service the general populace (and

not specifically the youth) although they (youth) too can access its services.

The capacity building initiative is meant to enhance beneficiaries‟ capacity to

grow their enterprise in a sustainable manner.

A remarkable point to note about the various initiatives discussed above is

that, unlike in many other countries in Africa, the programmes are rolled out

on a non-partisan basis. In other words, youth from all walks of life and

political persuasions, have equal access to funds from these schemes. This is

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(at least during the time of the Mugabe regime), many initiatives were rolled

out on partisan lines, with youth from the ruling Zanu Pf party receiving greater

attention. This proved to be a recipe for disaster, as the youth would squander

project money but receive little more than a verbal reprimand. As

implementation of the various strategies discussed above has progressed, the

authorities managed to identify and isolate a number of implementation bottle-

necks, and it took steps to address them. In 2015, the Ministry of Youth, Sport

and Culture came up with a document on affirmative action in favour of the

youth (GOB 2015). The document set out to remove perceived bottlenecks for

youth empowerment and it did this by identifying and extending a number of

business-related exemptions to the youth.

These initiatives included directives to Land Boards in the various districts

across the country to grant to youth businesses a 5-year grace period without

paying lease fees, instructions to the effect that youth who bid and won

tenders for commercial plots be allowed to pay-off the price in instalments

instead of a one off lump sum; that youth companies should acquire tender

documents at a charge of 50% of selling price to accord them the opportunity

to bid for a wide spectrum of products and services. These directives have

gone a long way towards promoting youth employment projects across the

country.

Lessons from Botswana’s ExperienceBotswana has done relatively well in terms of putting in place measures to

fight youth unemployment across the country. The response from the youth of

Botswana to the various initiatives put in place by the Government has been

overwhelming. A number of lessons can be drawn from the country’s

experience.


Political will is key: One key lesson that can be drawn is that political will on

the part of the government is a key factor for positive outcomes where youth

employment initiatives are concerned. The Government of Botswana does not

simply engage in rhetoric; it “walks the talk”. In some Africa countries, often

there is lack of commitment on the part of the government. In some countries

the authorities make false promises and such shenanigans do not augur well

for national development, hence they ought to be discouraged.

Catch them young – There is need to provide entrepreneurial skills to young

people at an early age. In the case of Botswana, the broadening of the base of

potential beneficiaries of initiatives such as the Youth Development Fund, for

instance, has meant young people, some barely out of secondary school, can

benefit from the fund, providing they come up with „bankable‟ ideas. This is

clearly a plus in the sense that this has given young people the opportunity to

develop entrepreneurial skills from an early age.

Disabuse people about diploma disease mentality –Many parents in Africa

have tended to educate their children essentially for white collar employment;

they send them to school so the children can become efficient employees, but

not at all potential employers. There is need to disabuse parents of such a

mentality, and the novel idea of allowing even 15-year-old school leavers (as

shown in the narrative) to access funding for small businesses is one that

appeals as it will go a long way in fighting this kind of thinking.

Create conducive environment - Botswana has demonstrated that it is

possible to make the (national) environment sufficiently attractive to obviate

the urge by the youth to migrate to other countries en-mass in search of

greener pastures, as is happening elsewhere in the sub-region. While youth in

many African countries flock to other regions of the world in search of greener

pastures, in Botswana, the government goes out of its way to make the local


environment as attractive as possible. Hence there is no mass migration of

youth to other countries.

Ploughshares and not swords: Another object lesson is that national

political stability has the potential to pay handsome dividends where youth

employment issues are concerned This is a feature that is perennially missing

in many African countries. In Botswana instead of swords playing a prominent

role, it is ploughshares that rule the roost. Peace and stability are key to youth

empowerment.

ConclusionBotswana has made commendable strides in the area of youth employment.

Clearly the rest of the African continent can take a leaf from the manner in

which the Government of Botswana has handled youth unemployment issues.

True the rate of unemployment in the country remains high, but the bold steps

taken by the Government of Botswana to empower the country’s youth ought

not only to be applauded but emulated by many countries in the sub-region.

With time, the initiatives will certainly begin to bear fruit.

9.4 DIGITAL LEARNING – A FUNDAMENTALLY DIFFERENT FUTURE!

Agenda 2063 recognises that the future of the continent, in part, rests on the

skills, knowledge, talents and commitment of its young people. Skills

development in Africa is firmly rooted in Agenda 2063" which considers itself

an instrument to eliminate youth unemployment. Specifically, this will be

through strengthening the technical and vocational education and training

through scaled up investments, the establishment of a pool of high-quality

TVET centres across Africa, greater links with industry and alignment to

labour markets, with a view to improve the skills profile, employability and

entrepreneurship of especially youth and women, and closing the skills gap

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job market will accelerate by 2020. Our future place of work will be

fundamentally different. Office and administrative functions, along with

manufacturing and production roles, will see dramatic declines accounting for

the demise of certain jobs over the next four years. Our future place of work

will be fundamentally different.

There is a central driver for many of these transformations, and it is

technology.

Artificial intelligence, 3D printing, resource-efficient sustainable production and

robotics will factor into the ways we currently make, manage and mend

products and deliver services. What will be absolutely decisive is how we

equip our workforce to harness the power of this technology to transform our

world for the better. That means ensuring the ICT skills of staff are fit for the

future. It means providing incentives for lifelong learning as the pace of

technological advancement quickens. And it means reinventing the HR

function, equipping it to continually assess and provide for the training needs

of employees. If we get this right the prize is clear. We have the potential to

revolutionise the way we live and work and do it in a way that avoids the

vicissitudes of previous industrial revolutions, creating new economic

opportunities that we would not have before imagined.

As the digital revolution accelerates, technology gives us exciting

opportunities to shape learning experiences and achieve learning goals. We

must use every tool within our armoury to ensure the current and future

generations are not left behind in the global digital skills race. At the same

time, it is important to recognise the role that a human teacher will always play

in the classroom. They have a unique and personal insight into each learner’s

progress, serving as a role model and local expert, and providing inspiration in

a way technology itself cannot. Combining the learning sciences with digital

innovation, we can leverage the best of what digitally enhanced and human-

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with the digital skills demanded by the market. In turn, affecting individual

lives, supporting business and transforming global communities.

It must be noted, while technology has always removed the need for some

types of jobs, it also creates new ones. Technology is a set of tools that we

use in different ways to increase efficiency. The Industrial Revolution

destroyed some jobs but created many more. It also increased the aggregate

wealth of society and began to create a middle class who could enjoy health,

education and other benefits that previously had been available only to the

wealthiest. It can be challenging to predict the kinds of jobs that this new

revolution will create and in what quantities because, it is possible, that nine of

the top ten most in-demand jobs of 2012 did not exist in 2003, suggesting that

this latest revolution is creating new employment opportunities.

For many, this picture is overly optimistic. The new jobs require a completely

different skill set. The Industrial Revolution played out of several decades and

yet still caused massive social upheaval, unrest and widespread deprivation

for many. The digital revolution may happen much faster, across large areas

of a complex, interconnected economy that has very tight in-built feedback

loops. In a world transforming at full-throttle pace, the fastest changes aren’t

driven by huge leaps in the capacity of new computer chips or the streaming

speed of digital information. They’re driven by the workers who power the

global economy. Back in the day, classroom training was the primary

technique for educating employees on their jobs and their employers’ policies

and procedures. Today, podcasts, online learning, screen capture, and

recording software have been extremely handy in training employees on their

responsibilities and how to accomplish them. This is especially true for

workplace and "on the job" training, which has progressed in leaps and

bounds since the introduction of web-based learning. In the workplace of the

future, employees will no longer be able to rely for their entire career on what

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will become an integral aspect of every job, at every level. Workplace learning

has already been transformed by technology and that transformation is set to

continue well into the future. Industry experts predict there will be several key

areas in which technology-enabled learning will revolutionise the workplace of

the future. The first of these shifts rings the death knell for traditional

classroom-based teaching. A lot of people are perturbed by this notion, as

they believe it goes hand in hand with a lack of personal contact. However,

this could not be further from the truth. To put it simply, sending half the

workforce across the country to attend a training course just does not make

business sense. We instinctively think human-to-human contact is needed to

teach – but because of technology we can now do much of this virtually, using

video links, virtual role plays, augmented reality and simulations.

Forward-thinking businesses are already embracing these techniques and the

expectation is that the use of virtualisation will become commonplace in the

near- to mid-term. Another big change will be the way in which learning is

incorporated throughout the working day. For years, teaching has been

formally structured – which clearly has the knock-on effect of taking people out

of their normal work schedules. In the future, learning will become more of a

systemic process. As life quickly becomes more fluid, adaptive and

geographically mobile, the associated learning will mirror this trend, becoming

more holistic and embedded in daily life. The impact on the working day would

be minimal, but the long-lasting benefits would be huge. The best e-learning

will be a blended learning approach which is interactive, engaging and

content-rich, using different parts of the brain to create and enhance an all-

round learning experience. No person can ignore the impact of social media

and this is set to be another avenue where we will no doubt see growth and

development. Social media has changed the way we interact with each other,

and the strengths of social media: its immediacy, informality, individual

empowerment and community will make an essential contribution to the way

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organisations in developing employee skills that are required, but also

provides a competitive advantage to engage, develop, and retain the

workforce. It is imperative to re-think the learning strategy of organisations and

align it to the rapid pace of change. Employees will benefit with a digital

learning culture focused on collaboration and communication. Digital learning

moves ahead of traditional learning habits and is more feasible, saves time

and effort, increases visibility, accessibility, reach-ability, and creates a

stronger sense of community. Creating a digitally-enabled, learner-centric

culture is in many ways central to delivering learning in a more efficient and

effective manner. Such a culture not only helps develop the skills needed for

the workforce but will also provide the organisation with a competitive edge to

engage, develop, and retain the workforce.

10. Overall lessons learned In light of the presentations and debates that took place at the Congress, the

following general facts were significant to note around the topics and specifics

of each theme:

a) The stakeholders in the employment and labour sector, particularly the

labour movement have a significant role to play in creating an enabling

environment for decent work promotion by ensuring that the interests

and rights of workers are safe-guarded.

b) The building of national social protection floors is still in its infancy and

still unknown to many informal economy workers who should be

engaged in their design in order to build on existing systems and

networks.

c) Many women continue to face discrimination in all employment

practices and terms and conditions of employment, including hiring,

wages, promotion, training opportunities, benefits as well as job

conditions. In addition, women continue to experience sexual


harassment at the workplace, whether in physical, verbal or non-verbal

way or other ways based on sex affecting their dignity.

d) There is still a need to promote conducive working environment for

women so that they can freely enjoy their economic rights and freedoms

by punishing institutions and employers that practice, encourage or

condone hostile working environment including cases of sexual

harassment.

e) It became evident that gender inequality is perpetuated in the nursing

profession by gendering practices and practicing of gender and that

men undergo a different (privileged) experience in female dominated

occupations as compared to women in male dominated occupations.

Study results confirmed that due to factors that intersect with gender,

men do not benefit equally from the gender privilege, however, they do

benefit more than women do and the nursing occupation is no

exception.

f) The increasing power of public sector trade unions has been argued to

be the key drive to better remuneration, benefits and stable working

conditions in the public service.

g) African countries that place social assistance in a rights-based

framework, effectively acknowledge that users of the system – e.g.

applicants for and beneficiaries of social assistance transfers – are not

mere passive recipients of the transfers being given to them as a matter

of courtesy or grace. As such, adopting a rights-based approach is an

expression of respect for human dignity and transforms users of the

system into active participants.

h) In the South African context, where the labour broker is the employer for

the first three months, and the client ‘deemed’ the employer after three

months, the client has the legislative duty, after the ‘deeming’ provision

kicks in, to employ the employee on terms and conditions that are on

the whole not less favourable than its permanent employees.


i) South Africa is struggling in curbing human trafficking, although there

have been a number of efforts and arrests in this regard, it is far from

enough to eliminate the problem. In spite of the high employment rate

especially with the unskilled workers, there is an addition of migrants

who are also unskilled, fighting for the same few opportunities.

j) Many low-income countries would like to see more skilled professionals’

movements. India lead a group of countries hoping for a “GATS visa”

that would allow access to any WTO member country for one to three

years.

k) Botswana has made commendable strides in the area of youth

employment. Clearly the rest of the African continent can take a leaf

from the manner in which the Government of Botswana has handled

youth unemployment issues. True the rate of unemployment in the

country remains high, but the bold steps taken by the Government of

Botswana to empower the country’s youth ought not only to be

applauded but emulated by many countries in the sub-region.

Signed by: ___________________ Mpumelelo Sibiya PHSDSBC: General Secretary

29 June 2018


Documents

· Web viewThe militant unionism emerged though the repression of the authoritative administration and management in the late 1980s and the militant unionism was quite effective