A labour crisis of everyone else’s making
| His department struggles to obey its own laws, but the legislation, says the boss, is not the problem
DEPARTMENT of Labour Director-General Thobile Lamati says labour lawyers and consultants are doing more to bedevil labour relations in South Africa than the government’s labour policies.
At a time when most independent observers agree that the country’s labour relations are in crisis, Lamati, speaking to Business Times on the eve of his department’s budget vote in parliament this week, said South Africa’s “labour market ills” were frequently the result of lawyers and consultants who had a vested interest in perpetuating labour-related problems.
He disagrees with the business leaders and potential investors who say the scale and
[Employers] rely solely on labour consultants . . . [They] are often advised incorrectly
inflexibility of South Africa’s labour regulations contribute to its unemployment crisis.
“Our policies are flexible. The ills we are experiencing have something to do with the way in which the policies are implemented at the workplace.”
They have nothing to do with the policies themselves, he says.
“The Department of Labour simply says that when you are going to dismiss an employee, you must follow a fair labour process.”
He suspects that to further their own financial interests, labour consultants and lawyers make this process more timeconsuming and expensive for employers than it needs to be.
“They come up with workplace policies that are so difficult to implement. And then they point a finger at the labour legislation. That’s a classic example of where you have labour market policy but then at the implementation level people come up with all sorts of other things.”
He says employers often don’t know “what the labour legislation is actually saying. They rely solely on the labour consultants. I get the sense that these employers are often advised incorrectly.”
Might this be because the regulations governing what employers can or cannot do are too numerous and complicated?
“Not if you look at the extent to which workers are still being abused,” he says.
“Then ask the question: Are workers overprotected? I don’t think so. I think what we have is just enough. We have created a bare minimum of rights.”
He says he is “yet to be convinced” by employers who say they cannot hire people because of labour legislation.
“Does that mean they want to create an environment where workers have no protection against occupational diseases and injury? If you don’t have legislation which deals with this, you’re going to have employees who are a permanent burden on our healthcare services.”
At the same time, he concedes that the department is not doing enough to monitor compliance with the legislation because it does not have enough inspectors. Its compliance-monitoring targets, which have never been met anyway, have had to be reduced this year, he says.
“Because of this we are not able to enforce legal coverage.”
Does this mean the department is reneging on its responsibility to protect workers?
“The responsibility to comply with the law rests with the employer,” he says.
And anyway, he adds, workers are still covered by the Compensation Fund.
Or not. According to Lamati, there is R52-billion in the fund, but it has been so badly managed by the department that the auditor-general has described it as dysfunctional. Lamati concedes that it is “not working as it should be working. The rate at which it processes claims is not at the level I’d like it to be.”
This is putting it mildly. There are stories of claimants having to wait for 13 years.
“In the past it didn’t have the IT systems to enable it to process the claims,” he says.
This in spite of the fact that it paid Siemens R2.4-billion between 2002 and 2012 to provide these IT systems and teach the department to operate them.
In 2013, Labour Minister Mil- dred Oliphant told parliament that Siemens “did not build IT-relevant capacity”. The department did not have “sufficient IT leadership and competencies” to manage the multibillion-rand contract, she said.
Lamati says he can’t comment because the matter is being investigated by the Special Investigating Unit.
“I was not the DG at the time.”
One of the DGs at the time was the current police minister, Nathi Nhleko, who was dismissed by Oliphant, citing an “irretrievable breakdown” in relations between them. Ironically, Nhleko said his dismissal was in breach of labour regulations.
Lamati, who is 45 and has spent most of his working life with the department, was made acting DG and DG in December last year.
Should his department be sounding so self-righteous about the protection of workers’ rights when it has failed to meet the claims of thousands of desperate workers to fair compensation because of its own bungling?
“I unreservedly apologise to those employees,” he says. “I think they got a raw deal from the department and the Compensation Fund.”
Should he be lecturing employers about regulatory compliance when his department doesn’t comply with its own regulations?
He denies this but struggles to explain why 16 senior officials of the department have been suspended on full pay, in one celebrated case for 40 months, while waiting for disciplinary hearings, which should be held within 60 days.
“The problem is people do not want to read, they do not want to listen. We issued a statement saying we regret it took this long. However, the executive concerned [chief director of legal services Nkahloleng Phasha] contributed to the delays.”
Phasha was eventually found not guilty of the allegations against him and is back at work. What about the others? Lamati says when he became DG he realised that many of those suspensions exceeded the prescribed 60 days and so he lifted them — although he admits that “most” had been suspended for defrauding the Compensation Fund and the Unemployment Insurance Fund.
He says these regulatory breaches by the department are not its fault. “The officials don’t make themselves available [for their disciplinary hearings],” he complains.
In all, “13 or 14” are currently suspended on full pay.
He says the department has a zero-tolerance policy on corruption, but battles to explain how the former director of the National Economic Development and Labour Council, Herbert Mkhize, was made special adviser to the minister after a forensic report found he’d been involved in fraud.
He says Mkhize was appointed before the report was fin- ished, and the minister has taken the report (which was completed more than two years ago) to the police for further investigation.
Why wasn’t he suspended after the report came out?
“I don’t know what the minister’s thinking is on the matter,” says Lamati.
I think those employees got a raw deal from the department and the fund