Many of South Africa’s key labour market institutions, operating under the jurisdiction of the Department of Labour, have come under the spotlight in recent months as they struggle to meet their statutory obligations.
The labour department recently published draft amendments to the Skills Development Act aimed at bringing sector education and training authorities (Setas) into line after some faced crises of mismanagement and theft of funds.
The specialised system of Labour and Labour Appeal Courts could be a thing of the past if a proposal before the Cabinet is accepted. The plan is to dissolve these courts and incorporate them into the high courts and Supreme Court of Appeal respectively.
The Commission for Conciliation, Mediation and Arbitration (CCMA) continues to be burdened by an ever-rising caseload, while facing human and financial constraints. And the National Economic Development and Labour Council (Nedlac) is increasingly hitting financial constraints as its workload has grown.
Nedlac continues to lose its more experienced staff to other organisations, while the social partners — labour, government and business — have yet to finalise the appointment of a replacement for outgoing executive director Philip Dexter.
The talk is that former trade unionist Herbert Mkhize is the front-runner, despite heavy lobbying by elements in business for the appointment of Raymond Parsons, the current Nedlac business convenor.
The Unemployment Insurance Fund (UIF), an institution from the apartheid-era, has tried to adapt itself to the labour market’s changing needs. But it, too, faces an overload as it battles to put in place the systems to deal with an expanded market.
The institutions themselves are not necessarily to blame. If a couple divorces, does the fault lie with the parties or the institution of marriage?
There may be a case for analysing the role of the social partners in ensuring that the troubled institutions run better. All, except the UIF, are answerable to the social partners. They either form part of governing bodies (in the case of the CCMA) or play a critical role in deciding on the judges appointed to the Labour Court through Nedlac.
In some cases, representatives of labour, the government or business are directly involved. There is some concern that this imparts an unwelcome political dynamic to the functioning of the institutions.
The reality is that governance by the social partners has not resolved capacity problems or enhanced the ability to manage and deliver services to the key labour market actors.
Some labour lawyers argue the problems are the birth pangs of relatively new institutions constantly undergoing transformation as they face increasing workloads with little or no increase in their budgets.
Compounding this is their difficulty in attracting skilled and experienced staffers committed to the philosophy of dispute resolution and sound labour relations. This has been clearly illustrated by the attempts to recruit a suitable head for Nedlac.
Users of the institutions must sometimes contend with questionable decisions handed down by overworked CCMA commissioners or Labour Court judges unfamiliar with labour law. With a shortage of full-time judges to manage the caseload, acting judges have been appointed from time to time, some with little or no background in a specialised field.
In the earlier days of our democracy more skilled labour lawyers, mediators and arbitrators seemed willing to work for public institutions. Many of them cut their teeth in the labour field from the late 1970s to early 1990s and have now moved on.
There is an inevitable tendency to romanticise the past — but it should be remembered that these practi- tioners were once novices themselves.
Part of the solution to the current woes may be to create an enabling environment for the development of a new “cadre” of commissioners, adjudicators and practitioners. The survival of many labour market institutions may ultimately hinge on this.
But this should not preclude immediate measures by the social partners to ensure the institutions are managed more efficiently.
Renee Grawitzky is the editor of the South African Labour Bulletin.