Achieving "decent work" in south africa? T cohen? L moodley



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List of abbreviations

BCEA

Basic Conditions of Employment Act

CCMA

Commission for Conciliation, Mediation and Arbitration

COSATU

Congress of South African Trade Unions

DWCP

Decent Work Country Programmes

EEA

Employment Equity Act

ILJ

Industrial Law Journal

ILO

International Labour Organisation

LRA

Labour Relations Act

NEDLAC

National Economic Development and Labour Council

OECD

Organisation for Economic Development

QLFS

Quarterly Labour Force Survey

SAIRR

South African Institute of Race Relations

SETAs

Skills Education Training Authorities

Stats SA

Statistics South Africa

TES

Temporary Employment Services



? Tamara Cohen. BA LLB LLM PHD. Associate-Professor, Faculty of Law, University of KwaZulu-Natal, cohen@ukzn.ac.za

?? Luendree Moodley. LLB LLM Legal Advisor, University of KwaZulu-Natal, moodleylu@ukzn.ac.za

1 ILO 1999 www.ilo.org.

2 ILO 2010 www.ilo.org.

3 ILO [Date unknown] www.ilo.org.

4 Zuma 2011 www.ilo.org. As early as in 2007 the ANC committed in the Polokwane Declaration to "making the creation of decent work opportunities the primary focus of economic policies".

5 ILO 2010 www.ilo.org 5. attain this objective all forms of employment are to be accompanied by non-discriminatory treatment, safe working conditions, collective bargaining rights and social security.

6 Stats SA 2012 www.statssa.gov.za.

7 Adcorp 2011 www.adcorp.co.za. The credibility of these statistics has been disputed by Stats SA. In turn the statistics generated by Stats SA have been criticised as failing to take into account the "unreported economy" (Sharp 2012 www.politicsweb.co.za).

8 Stats SA 2011 www.statssa.gov.za. The QLFS is a household-based sample survey conducted by Statistics South Africa (Stats SA). It collects data on the labour market activities of individuals between 15 years and 64 years of age, who live in South Africa.

9 Theron 2008 ILJ8.

10 Increasing informalisation has been attributed in part to the poor educational levels of work seekers, as those with little or no formal education are more likely to find work in poorly remunerated and unskilled informal employment (Bivens and Gammage 2005 www.epi.org).In 2005 an estimated 16% of workers in the formal economy had completed less than a 6th grade education whilst 36% of the workers in the informal economy had less than a 6th grade education. 3.5% of the informal economy workers had either a diploma or a higher degree. This was in contrast to the 22% of the formal economy workers who had an equivalent level of education.

11 Benjamin ILJ1579 defines casualisation as the of standard employment by temporary or part-time employment.

12 "Externalization" is described as the process of economic restructuring in terms of which employment is regulated by a commercial contract rather than by a contract of employment (Benjamin ILJ1579).

13 Theron 2010 ILJ845-846.

14 Theron 2010 ILJ845-846.

15 Stats SA 2012 www.statssa.gov.za.

16 Women in paid employment in South Africa earn 77.1% of men's remuneration (Commission for Gender Equality 2010 www.cge.org.za).

17 Department of Labour 2011 www.labour.gov.za.

18 Business Womens Association 2011 www.bwasa.co.za.

19 The report indicates that only 23% of promotions at top management level and 32.6% of promotions at senior management were awarded to women employees. While the public sector has had more success in addressing inequalities in senior positions than private sector employers, glaring inequalities nonetheless remain.

20 Department of Health 2008 www.doh.gov.za.

21 Trading Economics 2011 www.tradingeconomics.com.

22 The State of the Cities Report (African Cities Network 2011 www.sacities.net 27) reveals that only one in eight youth of employable age in South Africa have a job. Ghai "Decent Work" 8 indicates that this trends is typical for most developing countries where high unemployment rates are often concentrated in urban areas and amongst youth.

23 OECD 2010 www.oecd.org 9.9.

24 OECD 2010 www.oecd.org 9.9. The report recommends expanded job search assistance, an upgrade of public job centres and better linkages with job-seeker databases.

25 Stats SA 2012 www.statssa.gov.za.

26 Defined by Stats SA as "a person who was not employed during the reference period, wanted to work, was available to work/start a business but did not take active steps to find work during the last four weeks, provided that the main reason given for not seeking work was any of the following: no jobs available in the area; unable to find work requiring his/her skills; lost hope of finding any kind of work".

27 ILO 2009b www.ilo.org 3.

28 ILO 2010 www.ilo.org 23.

29 Anker et al Measuring Decent Work . Ideally, in any society there should be adequate employment opportunities for all those who seek work (Ghai "Decent Work" 7).

30 Anker et al Measuring Decent Work .

31 Stats SA 2012 www.statssa.gov.za.

32 The programme supports the Ouagadougou Plan of Action, which aims to create employment opportunities in sectors that have the highest employment creation potential (ILO 2007b www.ilo.org 6).

33 The Training Layoff Scheme (launched in 2009) provides skills training and an allowance to employees during a negotiated layoff period. The plan provides short-term relief to employers and employees and aims to improve overall skills levels (ILO 2010 www.dol.gov).

34 A National Jobs Fund was established in 2009 with an initial allocation of R2.4 billion to finance the Training Layoff Scheme.

35 Released by Minister of Economic Development, Ebrahim Patel, in December 2010.

36 COSATU [Date unknown] www.cosatu.org.za.

37 Gordhan 2011 www.treasury.gov.za 5.

38 COSATU 2011 www.cosatu.org.za 14.

39 Somavia 2011a www.ilo.org.

40 Zuma 2011 www.southafrica.info.

41 SAIRR 2012 www.sairr.org.za 2.

42 SAIRR 2012 www.sairr.org.za 2.

44 Anker et al Measuring Decent Work 26.

45 ILO 2010 www.ilo.org 7.

46 Bivens and Gammage 2005 www.epi.org12.

47 Bivens and Gammage 2005 www.epi.org12.

48 Human Development Report Office 2000 .undp.org 61.

49 Human Development Report Office 2000 .undp.org 61.

50 Stats SA 2010 www.statssa.gov.za.

51 Stats SA 2010 www.statssa.gov.za. Median monthly earnings were lowest for those working in private households, being 27% of the median monthly earnings of formal sector employees.

52 Theron 2010 ILJ 851.

53 Theron 2010 ILJ 851. wage gap is widest in the case of older employees (44% for employees 45-54 yrs) and entry-level employees (38.6% for employees 16-24yrs).

54 Stats SA 2010 www.statssa.gov.za.

55 Anker et al Measuring Decent Work 26.

56 Bivens and Gammage 2005 www.epi.org12.

57 Stats SA 2010 www.statssa.gov.za.

58 Naidoo 2003 www.ilo.org.

59 Benjamin 2008 ILJ 1592. These minimum wages are determined by sector-specific standards, which include collective agreements negotiated by bargaining councils and sectoral determinations made by the Minister of Labour.

60 Anker et al Measuring Decent Work 38.

61 Anker et al Measuring Decent Work 38.

62 Theron points out that in 61% of the cases analysed the arbitrator dismissed the application because the employee was unable to establish the existence of an employment relationship with the party cited. In many of these cases the wrong employer had been cited (Theron J “Intermediary or employer? Labour brokers and the triangular employment relationship” (2005) 26 ILJ 635).

63 Labour Relations Act55 of 1998.

64 This working arrangement is endorsed by ILO Recommendation 197 of 2006.

65 Basic Conditions of Employment Act 75 of 1997. In contradistinction to this provision s 57(1) of the Employment Equity Act 55 of 1998 (EEA) provides that for the purposes of Chapter III of the EEA, a person whose services have been procured for, or provided to, a client by a temporary employment service is deemed to be the employee of that client, where that person's employment with the client is of indefinite duration or for a period of three months or longer. The client and employer are held to be jointly and severally liable for an act of discrimination committed by the temporary employment service on the express or implied instruction of the client (s 57(2) of the EEA).

66 Theron 2005 ILJ 619.

67 NUMSA v SA Five Engineering (Pty) Ltd 2007 28 ILJ 1290 (LC).

68 Theron 2010 ILJ 848.

69 Theron 2010 ILJ .

70 Theron 2010 ILJ846.

71 Labour Relations Amendment Bill2012 (Gen N 281 in GG 35212 of 5 April 2012).

72 Labour Relations Amendment Bill2012 6.

73 Social protection is defined as the protection that society provides against economic and social problems that would otherwise arise due to the reduction or termination of earnings due to maternity, old age and unemployment (ILO 2007a www.ilo.org 172).

74 Such contingencies include ill health, maternity needs, accidents, unemployment, destitution, extreme economic fluctuations, natural disasters and civil conflicts.

75 Anker et al Measuring Decent Work 52.

76 Ghai "Decent Work" .

77 Ghai "Decent Work" .

78 Ghai "Decent Work" .

79 Section 27 Constitution of the Republic of South Africa, 1996.

80 According to results from the National HIV Survey 2008, KwaZulu-Natal, Mpumalanga and Free State have the highest rates of HIV prevalence in the country. For the period 2002-2008, the HIV prevalence rates in these provinces were: KwaZulu-Natal 11.7% increased to 15.8%; Mpumalanga 14.1 % increased to 15.4% and Free State 14.9% decreased to 12.6%. The province of Gauteng was 10.3%, Eastern Cape 9.0%, Western Cape 3.8%, North West 11.3% and Limpopo 8.8% (AVERT 2010 www.avert.org).

81 Van Der Berg 2006 images.businessday.co.za 10.

82 Anker et al Measuring Decent Work .

83 Gordhan 2011 www.treasury.gov.za.

84 Khumalo 2012 www.southafrica.info.

85 Khumalo 2012 www.southafrica.info.

86 ILO 2010 www.ilo.org 9.

87 ILO 2009a www.ilo.org 162.

88 Anker et al Measuring Decent Work 59.

89 NEDLAC was created with an Act of Parliament in September 1994 and is a representative body whose parties seek agreement through negotiation and discussion. Any NEDLAC agreement is required to be accepted by Parliament before it becomes law. See also Naidoo 2003 www.iol.org .

90 Nonetheless there is evidence of a recent decrease in COSATU membership in the manufacturing sector, attributable to the global economic crisis, which has given rise to significant retrenchments in the retail and vehicle manufacturing sectors (Naidoo 2003 www.ilo.org ).

91 Naidoo 2003 www.iol.org 54.

92 Buhlungu 2008 .swopinstitute.org.za. See alsoWebster 2005 International Political Science Review 63.

93 http://www.cosatu.org.za/docs/shopsteward/2011/oct-nov.pdf; see also Gender Equality at the Heart of Decent Work http://www.ilo.org/global/publications/magazines-and-journals/world-of-work-magazine/articles/WCMS_105183/lang--en/index.htm .

94 Cf the Shopsteward magazine published at http://www.cosatu.org.za/docs/shopsteward/2011/
oct-nov.pdf
[date of use 27 January 2012].

95 NEDLAC 2009 www.pmg.org.za.

96 In the first quarter of 2011 the number of employed women and men increased by 173 000 and 53 000 respectively (Stats SA 2011a www.statssa.gov.za). The African textile industry with its 90% female workforce has experienced severe job losses due to reduced export opportunities (Somavia 2011b www.ilo.org 6).

97 Zuma 2011 www.ilo.org.

98 OECD 2010 www.oecd.org.

99 OECD 2010 www.oecd.org 3.

100 OECD 2010 www.oecd.org 11.

101 Olifant 2011 www.skills-universe.com.

102 Oliphant stated that the strategic objectives of the department over the next five years included: contributing to employment creation; promoting equity in the labour market; protecting vulnerable workers; strengthening social protection; promoting sound labour relations; strengthening the capacity of labour market institutions, and strengthening the institutional capacity of the department.
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