Viva ANC Viva!!! Viva SACP Viva!!! Viva SANCO Viva!!! Long live COSATU Long Live!!! AMANDLA!!!

Comrade Chairperson
President of Cosatu; Comrade Sidumo Dlamini
Acting General Secretary: Comrade Bheki Ntshalintshali
The National Office Bearers of Cosatu and its Affiliates
Leadership of our Revolutionary Alliance
Ministers and Deputy Ministers, here present
Former National Office Bearers
Esteemed Delegates to this Congress
Distinguished Guests
Members of the Media
Comrades and Friends

It is important to note that 2015 is the 30th Anniversary of the Congress of South African Trade Unions. During this period Cosatu has gone through remarkable evolution, fought many battles in its wake, recorded countless achievements in its journey and continues to be a notable player in shaping the transformation discourse in South Africa.

The challenges of today can't be solved by the tactics and remedies of years gone by. The twenty first century challenges need 21st century solutions.

Comrade President; I submit that this congress presents an excellent opportunity to take stock of how much progress has been made since the 11th National Congress in 2012. It also gives all of us the opportunity to identify weaknesses and opportunities going forward so that we can tool and retool for the road ahead. In my experience, the working class has never been afraid to engage and advance their views on political and policy matters and in most cases it succeeds.

It can be argued that the most significant and highly contested amendments to the labour laws came in the period 2013 - 2014 when all the key labour laws went through significant re-alignment. The quest for social justice finds expression in recent amendments, inter alia:

•     The Labour Relations Act No. 6 of 2014
•     The Basic Conditions of Employment Amendment Act, No 20 of 2013
•     Employment Equity Act No. 47 of 2014
•     Employment Services Act No. 4 of 2014

These laws provide the much needed space for workers to organise themselves into strong trade unions. There are only about two Freedom Charter demands that I can think of which have not been met to the fullest. Achieving a forty hour week and setting a National minimum wage are but the two.

Outside of these two, our labour laws are a true expression of the Freedom Charter. Judging from the noises we hear about our labour laws as being too protective of the workers in general and vulnerable workers in particular, suggests that we are doing exactly what our constitution and the electorate that voted the ANC into power not once, but five times in a row, demanded of us. Therefore we should celebrate and defend these revolutionary gains and take full advantage of the space that they provide.

Comrades and Friends; the recent labour law amendments introduced the new paradigm in advancing the quest for social justice. We revisited every single aspect of the labour law that unwittingly constraints our constitutional obligation to foster social justice.

Let me now turn to some of the key highlights of the Labour Law Amendments which include, but not limited to;

ONE; UNDER ORGANISATIONAL RIGHTS, The LRA makes it much easier for unions to obtain rights within the organisation. Commissioners can now give majority rights to sufficiently represented unions who do not necessarily have majority representation in the bargaining unit. In the past you had to have 50% + 1 union representivity to qualify for majority rights such as the right to union representatives and access to information; today even in cases where a union does not command a 50% +1 representivity, a Commissioner may award majority rights to a union that is considered to be sufficiently representative, as long as no other union in that workplace already has majority rights.

TWO; UNDER THE EXTENSION OF A COLLECTIVE AGREEMENT; A Commissioner may now extend a collective agreement to a 3rd party. That is; a Commissioner can enforce Collective agreement between a TES and his employees, on the client, and vice versa.

THREE; The Definition of DISMISSAL has also changed: In terms of Section 186, a dismissal is no longer just limited to the termination of a contract of employment by an employer, but termination of any employment.

This means that, where an employee is stationed with the client of a Temporary Employment Service, and the client decides to terminate his employment, the employee can refer the client to the CCMA irrespective of the contract with the Temporary Employment Service, due to the fact that the employment relationship is between the employee and the client.

Failure to offer permanent employment once a fixed term contract has lapsed can be seen as unfair dismissal, where the employer cannot justify why no such permanent appointment can be made.

Any dismissals will be automatically "unfair" if the reason for the dismissal is that the employee refused to accept a demand in respect of any matter of mutual interest between them and their employer - e.g. pay cut, longer hours. Such changes are now left solely to the ambit of collective bargaining.

Where an employee is not required to work their notice period and the employer ops to pay out the notice period, the date of dismissal is the day when the notice expires or day employee receives final payment, whichever comes first.

FOUR; UNDER FIXED TERM CONTRACTS, An employee may not be employed by a TES on terms and conditions not permitted by the LRA, or any employment law, sectoral determination or collective agreement applicable to the employees of the client to whom the TES employee renders services.

This is important Comrades because it deals with the argument that workers will be subject to unfair labour practices in the first three months of their employment if employed by a Temporary Employment Service. The law is explicit that protection against unfair labour practices kicks in immediately.

Fixed-term employees, employed for a period in excess of three months and earning below the BCEA earnings threshold, will be deemed to be employed indefinitely unless the employer can demonstrate a justifiable reason for employing such an employee on a fixed-term basis. The law cites the following as possible justifiable reasons;

    If the employee replaces a permanent employee of an employer that is temporarily absent;
    If there is a temporary increase in the volume of work of an employer, provided the contract is then not for a period of more than 12 (twelve) months;
    If the employee is a student or recent graduate being trained for a profession;
    If the employee is exclusively employed on a specific project that has a limited or defined duration;
    If the employee is not a citizen and the employment is linked to the period of the employee's work permit
    If the employee performs of "seasonal work"
    If the employee is engaged in an official public works scheme or public job creation scheme
    Where the position the employee occupies is funded by an external source for a limited period
    If the employee has reached normal or agreed retirement age

Fixed term contract that exceeds 3 months without justifiable reason would result in that employee automatically becoming a permanent employee.

Fixed term employees working for longer than 3 months must work under and receive the same benefits as all other permanent employees - unless a justifiable reason to differentiate in terms and conditions exists, such as length of service, seniority, etc.

Fixed-term employees, employed for a period in excess of 24 months must, upon the expiry of their contract period, receive a severance payment equivalent to at least one week's remuneration for every completed year of service, unless the employer offers the employee permanent employment or procures employment for the employee with another employer on similar terms and conditions.

FIVE; UNDER TRADE UNIONS; The law states that Trade unions representing the employees of a Temporary Employment Service are now in a position to exercise their organisational rights not only at the workplace of the Temporary Employment Service, but also at the client's workplace; despite the employees not being employees of the client.

SIX; UNDER PICKETING; Employees participating in protected strike action may be permitted to picket not only at their employer's premises, but also at premises owned or controlled by other parties. This change in the law will, for example, entitle the employees of a Temporary Employment Service to picket at the client's premises. It also means that SACCAWU members who for many years have not been able to picket at shopping Malls because such premises are not owned by retailers that the union may have a dispute with, can now do so.

In the past Retailers would obtain Court Interdicts restricting striking SACCAWU members to 100 metres away from the premises of the employer, today this no longer the case with the new amendments.?

SEVEN; THE REVIEW OF ARBITRATION AWARDS

Review proceedings brought by employers in respect of arbitration awards handed down by, for example, the CCMA, will no longer suspend the enforcement of those arbitration awards;

    Unless the employer furnishes security to the Labour Court or can demonstrate that it is in the interests of justice that security should not be tendered.
    Security, in the case of a reinstatement or re-employment order, must be equivalent to two years' remuneration for the employee in question.
    In the case of awards for compensation, the security tendered must be equal to the compensation awarded.
    The applicant to a review application must apply for a date for the matter to be heard by the Labour Court within six months of the application having been filed at the Labour Court.
    This will bring to an end the tendency of some employers who take CCMA awards on review just to frustrate a worker.

EIGHT: THE INTRODUCTION OF THE PRINCIPLE OF EQUAL PAY FOR WORK OF EQUAL VALUE IS INDEED A MILESTONE;

The Act deals explicitly with unfair discrimination by an employer in respect of the terms and conditions of employment of employees doing the same or similar work or work of equal value. Differentiation may amount to unfair discrimination unless the employer can show that differences in wages or other conditions of employment are in fact based on fair criteria such as experience, skill, responsibility etc.

NINE; EMPLOYMENT SERVICES ACT (NO 4 OF 2014)

It is important to take note that the Private employment agencies are prohibited from charging work seekers any fees for services rendered.

NOTWITHSTANDING THESE MAJOR ACHIEVEMENTS, THERE EXIST ENORMOUS CHALLENGES COMRADES;

1. The unique feature of our labour Relations institutional arrangements is that their governance is tripartite in its construct. For example Labour, Business and Government serve on all the advisory boards and governing bodies that are prescribed in the various labour laws, yet we have endless challenges in the manner in which some of them function.

It could be the function of who we deploy in those boards, or the inability of the federation to enforce accountability.

2. Not a day goes by without receiving a call and/or a text message from a worker who is unhappy about one thing or the other. My cell-phone has become a call centre of some sort, where I deal with queries from workers even those that are members of the affiliates in this congress. Whilst on the one hand this could be attributed to the fact that not all our labour centres and institutions are functioning optimally, the bulk of the complaints stem from the lack of service to members and the fact that over 70% of workers are not unionised.

3. The proliferation of bogus unions has also increased in the recent past. Some of the new unions that file applications for registration are splinters from the very affiliates of this federation. When I checked recently there were 185 registered trade unions and 23 Labour Federation on our books, far too many if you ask me.

4. In some cases trade unionism is being commercialised through consultant who register bogus unions solely as a means to represent desperate workers who have no-one to turn to in times of stress.

Some workers take a chance to represent themselves at CCMA and other dispute resolution platforms, and because they have no idea of how these processes work, end up losing strong cases where, if they had proper representation, they would have won without breaking a sweat.

5. Our labour law was built on the foundation of strong trade unions. Quite frankly this foundation has of late, become very shaky with the proliferation of small and fragmented unions that are mushrooming all over the place.

This is also not helped by the continuous trade union rivalry in various sectors.

6. A sizeable number of trade unions are falling short in terms of compliance with the Labour Relations Act. As you know that the LRA has introduced a new mechanism as a step before an outright de-registration could kick in. We need a high level conversation to discuss the state of compliance of the unions and to work out a plan on how to ensure full compliance. We have taken a view that in fostering compliance, we will place more emphasis in assisting unions to comply rather than resorting to punitive measures.

7. I think we should all be very concerned about;

    The low levels of trade union density in the private sector; the emergence of rival unions which are often set up by union officials who once were leaders of the same union they seek to destabilise.
    Unions that are quick to call workers out on strikes even in cases where a strike has no real potential of producing different results.
    Strikes which tend to be protracted yet workers are often no better off than they would have been if the strike was some-what shorter.
    The painful disconnect between a long strike and the value of the final settlement. Why go out on strike for several weeks or months if the final settlement is a mere half a percent or even less in some cases?
    Strikes that last longer than is necessary yet you hear union leaders bragging about how long they were able to sustain a strike with zero recognition of the post-traumatic stress that often visit members after the strike.
    Special attention needs to be given to the new phenomenon of workers engaging their employers directly without the involvement of their trade union. A recipe for anarchy.
    It does not seem like the cost and benefit analysis informs the union leadership when deciding to call workers out on strike and at which point does it need to be called off.
    One gets the impression that strikes are no longer considered as the last resort after everything else has failed. Well, others are saying strikes have become a fashion statement and are often used as something to prove a point among rival unions, rather than a tool to get what members want.

Comrades I am raising these challenges as a concerned Cadre of our movement and with the hope that you will reflect on some of them during your deliberations and give guidance going forward.

The Department of Labour needs you as a partner in ensuring that the full benefits of our labour laws accrue to ordinary workers.

Ditsela needs to be seized with tooling and retooling workers with the expertise on how to extract maximum benefit from the recent labour law amendments.

UNEMPLOYMENT INSURANCE FUND - AMENDMENT BILL > BEFORE PARLIAMENT: NOW BEFORE PEOPLE

    Extend the period to withdraw benefits from 6 to 12 months ( to cushion the impact of joblessness)
    Extend the scope to cover government employees and workers undergoing training/learnerships
    Increase the levels of benefits from 38% to 66%
    To include mothers who had miscarriage or bears a still born to full maternity benefits.
    Inclusion of domestic workers on maternity benefits

PARTICIPATION ON INTERNATIONAL FORUMS (INTERNATIONAL TRADE UNION AFFILIATION)

    Attendance in those conferences
    Constitution/Formation of those trade unions
    Resolutions taken and the implementation thereof whether they are in line with our own Constitution/Labour Market Policies of South Africa

LABOUR BROKERS: BE HONEST

    Government must ban labour brokers - what will be the role of COSATU and its affiliates
    Bargaining agreement - where you have agreed that labour brokers must continue to do work in your organised industries
    Where you even say labour brokers must pay or contribute skills levies directly to you as affiliates
    Where you have also partnered with the very same companies using them or labour brokers themselves. ( You do that as individuals/Investments on behalf of the workers)

INVESTMENTS BY TRADE UNIONS

    Causes divisions within the leadership of the unions while claiming to be doing investments on behalf of workers. When do workers get these benefits?
    At the same time using your own companies/names/family members when doing those investments. e.g ESKOM, ETOLLS
    Indirect employers

DEPLOYMENT TO THE VARIOUS ADVISORY BOARDS/GOVERNING BODY

    CCMA - Who deals with the employment process, governing body - which you are part of.

MONITORING OF COMPLIANCE INTERMS OF LABOUR MARKET POLICIES

    Leaders in the work place are shop-stewards
    Inspection and your participation (sometimes you do but in most cases you don't)

In tackling the challenges in our labour relations environment as you do on a daily basis, and by seeking to help mobilise our society in pursuit of Labour market stability, we need all of us to push and pull in the same direction. There is evidence that with unity of purpose, there exist the magic of surfacing incredible levels of innovation and creativity of any nation.

The former President of the South Africa, the late Nelson Mandela once wrote to Adelaide Tambo back in 1977, about the importance of planning and the execution thereof. It went something like this; and I quote, "Significant progress is always possible if we, ourselves, plan every detail and allow intervention of fate only on our own terms. Preparing a master plan and applying it are two different things." close quote.

Whilst we fully understand that sectors that are covered by Sectoral determinations are often the most difficult to organise, but we must also accept that relying on sectoral determinations will not necessarily lift these workers out of poverty as you know these merely set the floor. (4.6 Million)

National Minimum wage: is an ANC Manifesto

The only hope of lifting these workers out of poverty is by organising them into strong unions so that they can use collective bargaining as a means towards a living wage.

As you deliberate on the issues on the agenda of this congress, please bear in mind Amilcar Cabral, a fighter and a revolutionary, who together with others, was instrumental in promoting the fight for the independence of the then Portuguese Colonies, who once said, and I quote,

"Always bear in mind that the people are not fighting for ideas, for the things in anyone's head.

They are fighting to win material benefits, to live better and in peace, to see their lives go forward, to guarantee the future of their children . . ." Close quote.

I believe that unless our debates in this congress gravitates in the direction that Amilcar captured so well back then, we may all lose relevance and our reason for being.

"Building Unity and cohesion of Cosatu to advance the National Democratic Revolution" is not far-fetched as it may sound, it is doable Comrades.

All the best in your deliberations. Let unity win the day.

I thank you