Labour Inspection Sanctions and Remedies Workshop Venice, 2-3 December 2010

1. Labour Inspection Sanctions and Remedies Workshop Venice, 2-3 December 2010 Paul Benjamin www.ilo.org/labadmin

2. Themes • South African labour law restructured post-1994 leading to massive expansion of coverage of minimum conditions and wages • Most labour enforcement decriminalised • Criminal law retained for child labour, forced labour, OHS & admin offences • High levels of non-compliance • Civil enforcement has not proved to be successful • Criminal prosecutions extremely rare • No overall enforcement strategy • State policy post-2009 emphasising “decent work” as goal

3. Principal legislation • Labour Relations Act, 1995 – collective bargaining, unfair dismissal, ULP • Basic Conditions of Employment, 1997 – hours of work, leave, termination, child labour • Sectoral determinations establish minimum wages • Employment Equity Act, 1998 – unfair discrimination and employment equity (affirmative action) • Unemployment Insurance Act, 2001 • OHSA Act and COIDA (workers’ comp) – regulated by 1993 Acts • Mine Health and Safety Act, 1996

4. Labour Institutions • Department of Labour – integrated labour inspectorate enforcing BCEA, EEA, UIF • CCMA – tripartite governance; outside of public service; conciliation and arbitration functions • NEDLAC – negotiation of labour legislation • Statutory advisory bodies – • ECC – advises Minister on sectoral determinations • EEC monitors affirmative action • ACOHS advises on OHSA • No body with oversight over labour inspectorate as a whole

5. Inspection Activity/Policy The Department’s Inspections are either proactive or reactive. Blitz inspections are conducted for one week of every month. These blitz inspections focus on a particular economic sector. The sectors which are focussed on are identified from the Injury on Duty statistics.

6. Civil enforcement • Administrative enforcement by labour inspectorate used to enforce • Basic Conditions of Employment Act (BCEA) (minimum conditions including wages); • Employment Equity Act (EEA) affirmative action and • unemployment insurance • Administrative enforcement widely used in post-1994 legislation – Mine OHS; Competition; gun control • Other enforcement strategies in labour legislation – • unfair dismissal – expedited conciliation and arbitration (CCMA); • unfair discrimination – conciliation and Labour Court litigation

7. IES restructuring – provincial The provincial offices will operate field services which will include the inspectorate. Provision is to be made for three categories of inspectors: specialist, generalist and principal inspectors. The different categories of inspectors are an innovation and have not previously been recognised in the Department’s structures.

8. Integrated Enforcement Services (IES) restructuring – national • Goal –greater professionalization and efficiency. • Revamped IES to have four divisions (national) - • Statutory Services which deals with legal issues, • Labour Inspection, • Employment Conditions; and • Planning and Support (including responsibility for statistics). • The Employment Conditions Division to have three sub-divisions: • Occupational Health and Safety, • LRA and BCEA; • Social Security (UIF and COIDA).

9. SA Decent Work Country Programme, 2010 • Critical challenges for integrated inspectorate - • acute shortage of qualified labour inspectors owing to a high turnover (issues- qualifications, salaries) • 2/3rds of inspectors do not have university degrees • insufficient data gathering and information system for policy design. • lack of an effective communication system and record keeping system • difficult to assess compliance levels for the purposes of strategic planning and setting priorities.

10. Administrative enforcement: principal steps • Inspector must seek written undertaking from employer to comply • Compliance order • Appeal to Director – General • Application for court order (Labour Court) – inspectors have right of appearance • Enforcement of court order through execution.

11. Administrative enforcement: critiques • Process too time-consuming and cumbersome • Employer can take advantage of administrative errors • Penalties inadequate

12. Administrative enforcement: reform proposals • Simplify process by removing obligation to seek undertaking • Allow for “spot fines” • Increase penalties • Employment Equity – calculate fines as a percentage of turnover (based on Competition Act) • Bring back criminal prosecutions

13. Criminal prosecutions • Child labour, forced labour, OHS, administrative offences • Responsibility for prosecutions lies with National Prosecution Authority • No specialist labour or OHS prosecutors (was the case before 1994) – labour offences a low priority • Prosecutions extremely rare (one in a decade) • Could inspectors have right of appearance in criminal courts?

14. Debating issues (1) • Incentive of state contracting use to drive skills development (employment of black learners), employment equity (employment of black managers) • Should it extend to decent work? • Proposals to integrate OHSA and compensation to create “HSE” style organisation not implemented • Efficiency, regard and profile of CCMA can be contrasted with that of DOL inspectorate • Should jurisdictions be adjusted?

15. Debating points (2) • Capacity of DOL not increased in line with increased coverage and shift in enforcement policy • Tendency to respond to administrative problems with calls for legislative change • How feasible is re-criminalisation or is it example of populist rhetoric • Civil enforcement procedures can be simplified and expedited and penalties increased