Not all reform is progress

A worker meets the law in the ordinary moments of working life. When a shift is cancelled and the wage does not come. When a disciplinary process is rushed or denied. When pension contributions are deducted but not paid over. When a retrenchment letter lands on the table. When a contract is written in a way that hides an employment relationship. When a workplace becomes so harsh that it begins to break the body, the mind and the spirit.

That is why Workers’ Day must always return us to the same question of whether the law still protect the worker, or has it begun to serve the convenience of those who already hold power?

South Africa is now considering what FEDUSA regards as among the most significant labour law reforms since the dawn of democracy. They are presented in the language of modernisation, simplification and flexibility. We are told that dispute resolution must become more efficient, that the law must adjust to the changing nature of work, and that the labour market must become less burdensome.

FEDUSA does not reject reform because it is reform. We are aware that work has changed. The old idea of a stable workplace, a clear employer, predictable hours, secure benefits and a straightforward path to permanence no longer describes the reality of too many workers. Today, workers are in platform work, disguised employment relationships, intermittent contracts, subcontracting, weak compliance, insecure employment and fragmented workplaces.

Labour law must respond to that reality. But reform must be judged by its effect on power. Does it leave the worker stronger, safer and more secure? Or does it make the worker cheaper, quieter and easier to dismiss? We believe these reforms do the latter.

Some proposals move in the right direction. The regulation of on-call, zero-hours and min-max arrangements is necessary. No worker should remain permanently available to an employer while carrying the financial risk of cancelled work, unstable hours and unpredictable income. Requirements for written clarity on guaranteed hours, maximum hours, availability periods, notice periods and payment for cancelled hours introduce a measure of fairness into precarious work.

FEDUSA also supports the broader definition of “employee” where it closes loopholes that have allowed employers to disguise employment as independent contracting. The law must look at the substance of the relationship, not only the label placed on a contract. A worker who is controlled by another, integrated into another’s operation and economically dependent on that relationship should not be pushed outside labour protection because the paperwork has been cleverly drafted.

There are other positive measures. Stronger enforcement of pension and benefit fund contributions is long overdue. These contributions are not favours. They are deferred earnings belonging to workers and when employers fail to pay them over, they compromise workers’ futures and should face effective enforcement. The Financial Sector Conduct Authority woke the country up to the troubling reality that over 15 000 companies failed to pay over workers’ pension contributions just last year, running into the billions of rand. 

But these advances cannot hide the deeper concern. A Bill cannot extend protection in one area while weakening job security, procedural fairness and collective bargaining in another. Not all reform is progress. Some reform shifts risk downwards and calls it flexibility. Some reform weakens accountability and calls it efficiency. Some reform makes dismissal easier and calls it modernisation.

The clearest danger lies in dismissal protection. Proposed changes to section 188 of the Labour Relations Act raise the possibility that procedural safeguards may be weakened in the name of flexibility. If clear dismissal protections are replaced by looser standards, workers may face dismissal without proper disciplinary processes. This is especially dangerous in smaller workplaces, where power is often more personal, procedures are less formal and workers are more exposed to arbitrary decisions.

The danger is even sharper in relation to probation. A qualifying period linked to probation risks creating a legalised “hire and fire” window. A worker in the first months of employment is already vulnerable. They are trying to secure permanence. They may be young, newly employed, indebted, supporting a household, or too afraid to complain. To weaken protection at precisely that point is to invite abuse.

This could encourage the cycling of workers through short probationary periods to avoid the obligations that come with stable employment. It does not create jobs. It creates a churn culture, turning entry-level work into a revolving door of insecurity.

The same concern arises in relation to remedies for unfair dismissal. A right without an effective remedy is a promise without teeth. If reinstatement is limited or compensation becomes less meaningful, one of the strongest deterrents against unfair dismissal would then be weakened.

Reinstatement matters because it tells employers that unfair dismissal cannot simply be priced into the cost of doing business. Compensation alone does not restore years of service, professional standing, workplace dignity or the security that was taken away. 

Retrenchment protections also require serious attention. The reforms propose a dangerous terrain where the procedure in retrenchment will be turned into just another red tape by suggesting that workers can only challenge procedural unfairness after retrenchments have taken effect. A flawed process must be capable of being challenged before workers are dismissed, not only after they have been pushed out of the workplace.

There is another silence in these reforms that Workers’ Day compels us to confront. For all their reach into dismissal, retrenchment, bargaining councils, enforcement, parental leave, precarious work and dispute resolution, the amendments do not adequately confront one of the most urgent realities facing workers across South African workplaces: mental health illness.

This omission matters because workers are not only losing wages, benefits and security. Many are losing sleep, confidence, dignity and hope under working conditions that have become emotionally and psychologically unbearable.

Koketjo Mpyana’s 2024 LLM dissertation at the University of Johannesburg locates mental health within labour relations, employment equity and occupational health and safety. The study highlights shortcomings in South Africa’s legal system, particularly the lack of detailed express provisions addressing mental health protection in the workplace. It also asks whether current law sufficiently addresses the mental health challenges workers encounter and the stigma attached to mental health disorders.

That should trouble lawmakers and equally so, all workers in South Africa. The law is being amended at scale while one of the defining workplace crises of our time remains insufficiently integrated into the architecture of reform. A modern labour law regime cannot only ask whether dismissal is faster or dispute resolution simpler. It must also ask whether workplaces are producing burnout, humiliation, anxiety, depression and exclusion.

Mpyana also warns against the common employer error of treating mental health conditions as character flaws rather than legitimate health concerns. In a labour market where probation protections may be weakened, reinstatement may become less likely and retrenchment intervention may be delayed, this is not a side issue. It goes to the heart of fairness at work.

The warning is already visible in education. Dr Marelize Vergottini of North-West University has cautioned that the emotional well-being of South African teachers is in a state of crisis that can no longer be ignored. She points to unbearable conditions, excessive workloads, administrative burdens, overcrowded classrooms, inadequate support for inclusive education, emotional exhaustion, anxiety, depression, burnout and teachers leaving the profession. 

This is not only a teachers’ issue. It is a labour market warning. The teacher drowning under impossible workloads, the public servant facing restructuring, the young worker anxious about probation, and the worker in a small establishment outside sectoral protections all stand on the same ground of vulnerability being dressed up as flexibility.

Any labour law reform that speaks of efficiency, but not psychological safety is incomplete and so is any reform that simplifies retrenchment but ignores the trauma of job losses. 

This Workers’ Day, the position of every South African should be to support reform that extends protection to vulnerable workers, recognises exploitative employment practices, strengthens enforcement, protects benefit contributions, improves parental leave, confronts harassment and gives workers meaningful remedies.

But we cannot support reforms that weaken dismissal protection, dilute reinstatement, reduce procedural fairness in retrenchments, restrict protest rights, overburden unions through unnecessary regulation or carve workers out of collective bargaining protections in the name of flexibility.

The measure of labour law reform is not whether it satisfies those who have always wanted a cheaper and more disposable workforce. The measure is whether the worker is more protected after the law changes than before.

Workers’ rights were not gifted by generous institutions. The history of this country’s journey to labour rights tells us that these were organised for, negotiated for, marched for, litigated for and suffered for. It is for this reason that a democratic labour law framework must move forward and not backwards.

Modernisation must not become a polite word for deregulation. Efficiency must not become a weapon against fairness. Growth must not be built on the erosion of collective bargaining nor reform become the illusion through which hard-won worker protections are quietly taken away.

Not all reform is progress, and the test is whether the law leaves the worker stronger, safer, more secure and more dignified. On that test, these proposed amendments require serious revision. A labour law framework worthy of democracy must not only regulate the contract of employment. It must protect the human being who works under that contract.

Riefdah Ajam is the General Secretary of FEDUSA