SASLAW Conference – Celebrating 25 years

COSATU President Zingiswa Losi – Address

Strengthen Labour Market Protections to Help Workers Facing Multiple Social-Economic Crises

05 October 2022

Programme director, colleagues, comrades and friends, all protocol observed,

Good morning,

Thank you for inviting the Congress of South African Trade Unions to participate and share our views with this important conference today.

As we gather here today, it is important to remember and appreciate those that we have lost over the past 3 years of COVID-19.  These unsung heroes include the likes of the General Secretaries of the National Union of Mine Workers and the South African Municipal Workers’ Union, David Siphunzi and Koena Ramatlou.  It includes Minister Jackson Mthembu, a proud metal worker organiser from Witbank, and Rob Leigh, a progressive lawyer from BUSA, a relentless ally of COSATU and workers in fighting for relief from the UIF to reach millions of workers during the lockdown.

This conference has correctly chosen to meet under the theme of celebrating 25 years of our progressive labour laws.  COSATU has long held the view that our labour laws are correct, based upon the struggles of workers and trade unions over many decades, seek to protect the downtrodden and uplift the vulnerable.

Many present here today, were amongst the drafters of our labour laws.  Yet all too often we have been alone as COSATU in defending these labour laws.  We trust that emerging from this conference, that ours will no longer be a solitary voice in defence of the hard-won legal rights of workers!

Many ask why are our labour laws important and necessary? 

Yet COVID-19 has shown us that without these labour rights, workers will be left defenceless and at the mercy of unscrupulous employers. 

Unemployment has reached an all-time high of 44%, many workers have lost wages and benefits.  Many workers were forced during the pandemic to work in dangerous conditions in violation of the Occupational Health and Safety Act and the disaster management ministerial regulations.

All too often workers are afraid to raise their voices when their rights are trampled upon out of fear of dismissal in an economy where 1 out of 2 people cannot find work.

If if were not for the trade union movement, for our labour laws and our labour market institutions, if it were not for the interventions we have been able to make through government, then workers would be at the complete mercy of employers who have no interest in the welfare of workers, of their ability to feed their children and send them to school, who fail to grasp that an unemployed person cannot afford to buy the very goods that businesses want and need to sell to consumers to sustain their operations.

Some among us will ask what are we celebrating after 25 years?

We are celebrating that the struggles of Mark Shope for workers to have the right to form and join trade unions is now enshrined not only in the Labour Relations Act, but also the Constitution. 

We are celebrating that the mine workers strikes of the 1940s and 1980s led by JB Marks and Cyril Ramaphosa and James Motlatsi respectively, have given birth to the constitutional right to strike.

We are honouring the sacrifices of countless women and mothers, with the Unemployment Insurance Act and Basic Conditions of Employment Act providing for paid maternity leave.  And that in 2018 maternity leave benefits were expanded, increased and separated from unemployment credits.

As we raise our children, we are grateful for a BCEA that recognises the right to paid time off.

We welcome the strides we have sought to lay in the Occupational Health and Safety and Mine Health and Safety Acts, which recognise for all too long we have treated our mine workers who have built this economy, as little more than glorified slaves and that they deserve better.

All too often, and it’s understandable given that we are a noisy democracy, we forget how not long ago we were governed by some of the world’s most perverse and racist laws. We were the nation that sought to identify your race by placing a pencil in your hair.  Yet today, the Employment Equity and the Prevention of Unfair Discrimination Acts constantly strive to find the right balance between outlawing unfair discrimination, affirming the disadvantaged and recognizing our diversities are our strength.

Some will say these laws are little more than nice English words for well paid lawyers.  Well, it is the UIF which working with COSATU and our colleagues from organised business was able to release over R64 billion, credit free, to ensure more than 5.5 million workers could take care of their families during the Covid-19 pandemic.

Others may say these are the victories of 25 years ago, of Madiba, tell us about the struggles of today.

Well, it is COSATU working with Parliament which ensured that in 2017 we achieved 10 days paid parental and 10 weeks paid adoption leave. The route of parental leave was deliberately chosen to accommodate same sex partners, a far cry indeed from the dark days of apartheid not so long ago.

It was COSATU working with then Deputy President Ramaphosa, who ensured the passage of the National Minimum Wage Act in 2018 uplifting the wages of 6 million workers, in particular farm and domestic.

Covid-19 was a learning experience that none amongst us could ever have imagined or prepared for.

Few of us had heard of this pandemic.  We all remember how rapidly things unfolded across the world and here at home.

These were busy times for COSATU and our affiliate unions.  As a Federation we were working closely with government and business to dispense relief from the UIF to workers, to fragile sectors of the economy, tax relief to save companies, debt relief for consumers and stimulus to cushion the economy.

We had to work closely with Professor Cheadle, Paul Benjamin and other progressive lawyers, to craft the UIF COVID-19 TERS to help desperate workers, to develop and adjust occupational health and safety guidelines to protect workers and consumers from an invisible enemy.

It was not always easy to reconcile the obligations of employers with the fears of workers.

We all failed to realise how divided we were as a society when it came to vaccines.  We assumed that all amongst us would embrace it as we have embraced vaccinating our children against countless other feared pandemics from polio to cholera.

COSATU and our Affiliates were deeply involved in mobilising and persuading workers and their families to vaccinate, to save lives and livelihoods.  We did not always find the right balance.  Contradictions are inevitable, as is the hindsight of history.

As a nation, it was a mistake to allow those who refused to vaccinate to be dismissed.  This was both a political and a societal challenge.  It took a society wide debate and made it a workplace challenge.  It added to the polarization of an already toxic debated.

We also failed to hear the voices of those workers who called us from retail stores and schools and said we have real co-morbidities, we heeded the call to vaccinate, we are now compelled to return to work, yet some among us have refused to vaccinate and they are now putting our lives and our children at risk, please protect us.

Yes, we have constitutional rights, but we also have constitutional obligations.  And no right can trump the right to life.

We need to hear the voices of progressive lawyers in these debates.  Where should the assertion of constitutional rights end and the limitation of rights commence?

Are we all on the same page as a nation?  Are we sure that all our children vaccinate against mumps and measles?  Or are we sleepwalking into a future pandemic?

COVID-19 shone a spotlight on our labour laws, and it was not always positive.

Whilst we correctly lauding the role, that the UIF played during COVID-19, we are at pains to the 4 million plus workers who are not covered by this critical pillar of social security.

We cannot be proud that the gaps in the UIF meant that thousands of musicians, artists, performers, Uber drivers, SMME and many other atypical workers could not be helped.

It should not require the declaration of a state of emergency for the UIF to help the victims of the 2022 floods in KwaZulu-Natal, yet today those workers are denied help precisely because the UI Act is silent.

It took SADSAWU, the domestic workers union, to seek a Constitutional Court judgement declaring the exclusion of 900 000 domestic workers from the Compensation Fund unconstitutional. 

It took Solidarity to go to court to compel Correctional Services to recognise the geographic diversity of our workforce and nation.  Parliament has now passed an amendment to provide for an inclusive approach to this sensitive matter.

Whilst we celebrate the passage of the NMW Act, it provides an unholy exemption for government to pay Expanded Public and Community Works Programme employees at 55% of the NMW.  Government cannot be allowed to pass laws and then exempt itself from them.

We witnessed in 2020, government abandoning a signed collective wage agreement in the public service.  This has set a dangerous precedent for both public and private sector employers, for collective bargaining and labour market stability.  Who will take government or an employer seriously in future, if their word can no longer be trusted?

Critics of our labour laws, some being labour lawyers, have said our laws are an impediment to job creation, that employers are afraid to hire as they will not be able to fire, scrap them and jobs will flourish.

Nothing could be farther from the truth.  We saw in 2008 a million retrenchments.  In 2020, it was 2.2 million.  So somehow its actually quite easy to dismiss, in fact too easy with the employer only needing to go through the motions of consultation and then paying 1 week’s salary for every year served.

If we seek to be a caring society, then we should make retrenchments a point of last resort, to require looking for alternatives, to reduce the wages of the management in order for the wages of the cleaners to be sustained.  We should provide more comfort to retrenched workers than a measly 1 week’s salary for every year that they gave their employer.

The BCEA provides a critical peg for the recognition of labour rights, protections and benefits, the annual income threshold.  Yet since 2014, it has only been adjusted twice for inflation.  This has meant the substantive gutting of workers’ hard won legal and labour rights, protections and benefits. 

The OHSA Bill is due to go to Parliament after collecting dust in the Department of Employment and Labour for 4 years.  We hope DEL will summons the moral courage to align it with the MHS Act and recognise the rights of workers to refuse dangerous work without the necessary protections, without the fear of victimization.

We have seen some employers flood the CCMA’s Essential Services Committee with a variety of bizarre applications to declare everyone under the sun an essential worker.  This cannot be accepted that in the pursuit of profits, some employers are willing to undermine and collapse workers’ legal and labour rights.  This is not the 1700s, we no longer build economies by treating workers as slaves.

South Africa ratified the International Labour Convention 190, on Combatting Sexual Harassment and Violence at the Workplace.  Have we here, read C190 and provided our views on whether our labour laws provide for its objectives?

Colleagues, I am raising these examples because they have a real impact upon the lives of workers.  COSATU and its Affiliates have raised our voices on these serious omissions in our labour laws.

Yet we do not hear the voices of SASLAW and the labour law fraternity?  Why?  Why were our lawyers silent on the exclusion of domestic workers from COIDA?  Why have you not made proposals on how to modernize the UI Act to accommodate e-platform workers?

You are better placed than most to say to government, Parliament, NEDLAC and COSATU, that here are the gaps in the laws, and here’s how they can be resolved.

But you should not be found wanting.  Silence as good lawyers would say is not a defence.  And it can be seen as being complicit.

The pandemic has shown how important it is to have strong, efficient, effective and accessible labour market institutions.

Despite its many achievements, the UIF is desperately in need of modernization.  Workers should not struggle to apply for what is due to them.

Workers should not battle for years to receive their payments from the Compensation Fund.

DEL needs to be provided with far more than 1400 labour inspectors if we are serious about ensuring that all workplaces are in compliance with our labour laws.

Funds for the CCMA should be increased and not decreased if we want it to provide real time support for workers and companies to resolve workplace disputes.

If we are serious about ensuing access to justice for all and not merely those who can afford expensive lawyers, then we need to resource our labour courts and review their rules and access to legal aid.

We need to be strengthening collective bargaining and bargaining councils as the anchors of labour market stability and not allowing employers, public and private, to undermine it with absolutely no consequences.

It means employers, need to respect workers’ hard won constitutional rights to unionise and at times to strike, if we are to build and nourish labour market stability.

We have been engaging with government and business on the President’s call for a social compact.  

Whilst we support the call for a social compact, we have made it clear to government that we will not sacrifice workers’ hard-won rights. 

COSATU will not allow our progressive labour laws to be weakened.  We will not allow workers to be thrown under the bus for the failures of government to govern or business to grow the economy.

We will not agree to scape goat the failures of the state and the private sector to the rights of workers to be treated like human beings.  If we are genuine about growing the economy, then fix the real obstacles to growth and not ideological red herrings.

The social compact must be based upon progressive principles, it must defend the rights of workers, provide relief for the unemployed, rebuild the developmental state, reduce poverty and inequality, and address the fundamental obstacles to growing the economy and creating decent work.

The foundation for the social compact must be the Economic Recovery and Reconstruction Plan which speaks to stabilizing and growing the economy, to securing and rebuilding Transnet and Metro Rail so they can provide reliable transport for workers and our products.

It includes the Eskom Social Compact providing clear interventions for stabilizing and investing in Eskom so it can provide reliable and affordable energy without which the economy cannot grow.  This includes slashing Eskom’s debt and tackling corruption at it.  It requires Eskom to be supported to invest in its own renewable energy capacity. 

The ERRP calls for all of us to support locally produced goods.  We have long championed this call.  COSATU and its Affiliates have been champions in the buy local campaigns as this is key to slashing unemployment and growing the economy.

Can we count upon our colleagues here to ensure that the clothes you wear, the food you buy, the cars you drive, the furniture you use; are locally made?

Our pension funds are the foundation for the economy.  Do we challenge our pension and investment funds to invest more in local jobs?  How will this economy grow and create jobs, if we do not support it?

SASLAW has an important role to play in strengthening our labour regime and promoting labour market stability.

So, are we comfortable that SASLAW is indeed playing this role?  Can it do more?  Are there gaps that need to be addressed?

If one looks at the speakers for this important conference, without going to the extremes of counting faces, are we nonetheless working towards ensuring that SASLAW reflects the demographic diversity of our nation?  Or are we content to remain in our comfort zone?

Do we practice the full spirit of nation building and inclusivity in our law firms?  Or are we comfortable with a boys’ club, and in particular a white male club?

All too often we see law firms allocating work to white men.  We witness a tendency to hire white male Senior Counsels.

Too few women, Africans, Coloureds, Indians and persons with disabilities, are afforded the opportunities to handle cases, let alone high-profile ones that will enable their careers to flourish.

Progressive lawyers have long said justice delayed, is justice denied.  Are we living up to that belief?  Or are we content to sacrifice the rights of workers and the vulnerable for billable hours?

We have seen time and again, businesses hiring lawyers to take on review simple and clear-cut CCMA findings.  Often these are matters as simple as a finding on the need for the employer to pay their farm worker the NMW.  The lawyer then takes it on review, appeals to the labour court, allows it to drag on. 

Which farm or domestic worker can afford to hire a lawyer, to wait for 2 years of endless postponements, to endure the emotional trauma of sitting in endless court rooms, to sacrifice wages shuffling from one court date to another?  Very few. 

So, what is SASLAW doing to discourage such callous treatment of the poor and vulnerable in pursuit of billings?  Surely, members of SASLAW, can lead from the front and take a clear stance in such instances and advise their clients that such behaviour must become a thing of the past, not the present and the future?

Yesterday we saw in News24 the shameful story of an employee whose rights were affirmed in a CCMA ruling, only to be ignored by his employer, the Public Protector.  Employers deliberately drag out cases to frustrate workers into abandoning their labour rights, resigning and walking away.

We need to hear SASLAW’s voice on such matters.

Why doesn’t SASLAW draft proposals calling for CCMA findings to be immediately implementable even if they are taken on review by the employer?

Colleagues, allow me to conclude here with these deliberately provocative comments, questions and challenges.

I hope that they provoke the engagements and guide the answers that we so desperately need if we are to protect workers and the vulnerable, if we are to improve the lives of our people and achieve that better life for all.

SASLAW has a key role to play in this journey.  We need it to be a voice for workers, a defender of our labour laws, to add its voice on how these can be enhanced and not weakened.

Thank you for inviting us to join you today.  Siyabulela.  Enkosi.