1. Labour Inspection Sanctions and Remedies Workshop
Venice, 2-3 December 2010
Paul Benjamin

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