Speech by the Minister of Labour, the Honourable Membathisi Mdladlana, 20th Annual Labour Law Conference, Sandton Convention Centre

Theme: Transformation Expectations and Constraints

Programme Director
Leaders of organised business and labour
Academia
Labour law specialists
Distinguished guests
Ladies and gentlemen

It is a great honour and pleasure to address you on this occasion of the 20th Annual Labour Law Conference. This 20th Conference comes at a critical time when the ruling party, the African National Congress (ANC), has just had its national policy conference and taken stock of policies introduced since 1994. When we took over in 1994, we promised and committed ourselves to ensuring that our society is fully transformed and there is a realisation of a "better life for all." Through this undertaking and commitment, we created expectations amongst our people.

At the heart of the policy conference was one question: how are we faring with our transformation project? We looked at the various policy areas from economic to social transformation. The discussion documents that informed the policy conference did acknowledge that whilst progress has been recorded in a number of areas, there were still areas where we needed to intensify and speed up the progress.

One area that we looked at was the labour market policy arena, and we all came to the realisation that this is one terrain that is highly contested. The legislative and regulatory reforms we introduced since 1995 have been hailed by some as important victories that would contribute a great deal towards the transformation of the socio-economic conditions of poor people. Simultaneously, some have gone to an extent of criticising our regulatory environment as being rigid and inflexible. There is still not yet empirical evidence that suggest that the so-called labour market rigidity affects investment in the country.

From the beginning, we knew that the road to economic and social transformation is certain to be long and treacherous. Progress on a variety of government programmes intended to achieve this transformation bears testimony to this long and winding road. Most strikingly, especially with regards to our labour market policies, we have one of the most fundamental, well-balanced regulatory regimes, but we still have a long way to go in ensuring that these progressive policies are observed in practice. Until we achieve this in reality, we cannot say with confidence that we have achieved this transformation.

Transitions by their nature carry with them high expectations, especially from the historically oppressed and previously marginalised. On the other hand, a major constraint in achieving transformation may be the very resistance of the beneficiaries of unjust policies and practices. Should this resistance prove too much to handle, then transformation is doomed from the outset.

South Africa's democratic dispensation coincided with the phenomenon of globalisation, virtually dictating to the country what kind of policies we should adopt if we are to get the support of economically powerful forces. At that point, a developmental discourse was biased in favour of prioritising macroeconomic stability, with a higher proportion of the budget channelled towards debt servicing. Our economy was characterised by poor growth, lower levels of investment, and slow levels of job creation. At the same time there were huge development challenges facing our new democracy. These challenges, left unattended, continue to pose a major risk to the sustenance of our democracy.

There is no doubt that both the economic and institutional constraints were significant enough to derail the state's ability to meet the expectations of the people. Today's state of affairs however paints a very mixed picture of how we have fared in meeting the expectations of a democratic state.

In his State of the Nation address in February 2004, at the end of the first decade of our democratic rule, President Thabo Mbeki remarked:

"Together with all other objective observers of social development, we have always known that our country's blemishes produced by more than three centuries of colonialism and apartheid could not be removed in one decade. Nevertheless, we have no hesitation in saying that we have made great advances to ensure the expansion of the frontiers of human fulfilment, and the continuous extension of the frontiers of the freedom, of which Nelson Mandela spoke almost ten years ago."

No successful transition can be achieved by the efforts of governments alone. Civil society and the business organisation are central in transformation. These sentiments were also echoed back in 1996 at a meeting organised by the Carnegie Commission, 'Miracles that Matter,' where it was concluded that:

"South Africa's long-term political prospects will depend, as in any other democracy, not only on the government's capacity and willingness to meet the needs of the people, but also on the capacity and willingness of citizens to assume their civic responsibilities and obligations."

In the labour market policy arena, a particularly interventionist approach was necessary, if we were to transform labour relations in the country. This intervention was not about telling employers what to do, but to put in place a framework that would fundamentally transform workplace relations in the country from adversarialism to co-operation and trust, to bring about labour relations stability. This transformation should however not only be viewed as a transformation of labour relations narrowly, but a broader transformation of the judicial system. This still remains a huge challenge, and the realisation without which as a society we cannot proudly celebrate our freedom. Central to the transformation of the judiciary is access to justice. As the African National Congress policy discussion document on the transformation of the judiciary has highlighted:

"The Constitution guarantees access to courts and other independent tribunals or forums. Unless ordinary people have access to courts and other independent forums or tribunals to resolve their disputes, the vision of a society based on the rule of law as envisaged in the Constitution will not be realised."

Of importance and interest to most of the law practitioners gathered in this meeting, one is tempted to look at the case before the Constitutional Court - which is a true reflection of resistance to transformation. The labour relations framework we have adopted established institutions to deal with all the labour and workplace disputes, but some people still decide to take the labour disputes to high courts or courts delegated to deal with criminal cases. The case before the Constitutional Court is about the management of labour disputes and not a criminal matter. We see this case as another example to challenge the transformation agenda we have put in place. The decision of the Constitutional Court will have serious implications and ramifications on the labour dispute institutions and the transformation of the workplace dispute resolution mechanisms in the country.

To commit government to a transformation project, President Nelson Mandela echoed these words at the address to the Institute for Democracy in South Africa (Idasa) in 1995:

"Turning ideal into living reality will, amongst other things, require undoing the consequences of discriminatory practices of the past, in particular in employment and education. Affirmative action is a strategy of corrective action to bring previously disadvantaged people to the same competitive levels as those who have been advantaged."

Yet it is unbelievable that even today, as a nation we are still debating the relevance of our employment equity legislation. And I think this is what provoked Christine Qunta, one of our revered social commentators to say:

"each of us wherever we are, should in a determined way, fight to move forward and thwart the new push against transformation."

The Commission for Employment Equity was recently chastised for suggesting that we are still not sufficiently complying with this legislation, as its Employment Equity Annual Report has shown. Our detractors believe that there is no need for affirmative action anymore, despite the revelations in the Annual Report that show that our employment patterns in South Africa continue to strongly reflect the days before 1994. Despite our repeated assertions that we need to correct the imbalances of the past - which is central to the sustainability of our democracy, our detractors continue argue that affirmative action policies represent 'reverse discrimination.'

Interestingly, even the International Labour Organisation (ILO) still recognises and emphasises the need for equal opportunity measures in the world of work. The ILO recently released a global report on the status of employment equity in the workplace. The report states that:

"The main message of the Global Report is that to tackle discrimination at work, the creation of more equal societies must become a central goal of development policies. The promotion of equal opportunities for decent work for all women and men, irrespective of race, religion, disability, age or sexual orientation, is one of the means to advance in this direction."

We all know that in our country, there is still no equality of treatment in workplaces, borne out of past injustices. Our progressive labour market policies represent but one effort to achieve this social justice. So there is no other relevant piece of legislation as central as the Employment Equity Act in the country at this present moment. Work, as noted by a renowned scholar known as Kahlil Gibran published his most seminal work titled 'The Prophet,' is central to human life and dignity:

"when you work you fulfil a part of earth's furthest dream, assigned to you when that dream was born,
And in keeping yourself with labour you are in truth loving life."

Equally, the ILO has found in its new report on Global Employment Trends for Women that there are emerging new forms of discrimination, among them, gender discrimination. Unfortunately, people who are opposed to affirmative action policies do not know that they are opposed to the elimination of gender and other forms of discrimination prevalent in our societies!!!

As a continuing effort on our part to consolidate this process of transformation, we have started a process of developing our Decent Work Country Programme. In this programme, we seek to address all sorts of discrimination in access to work opportunities. Women and youth, as part of the historically marginalised and disadvantaged, will be accorded the necessary attention. This is part of the transformation of our social and economic transformation.

This transformation is not only necessary, but is also inevitable. For transformation to be realised, we need committed men and women in our society, from all walks of life, to practically embrace this ideal and show through their deeds. We shall triumph!!!

I thank you

Issued by: Department of Labour
4 July 2007