Presentation to the 23 rd ANNUAL LABOUR LAW Conference 13 AUGUST 2010

1. The Role of the CCMA in dealing with Job Insecurity and Business Distress Presentation to the 23rd ANNUAL LABOUR LAW Conference 13 AUGUST 2010

2. PRESENTATION OUTLINE

3. EFFECTS OF THE GLOBAL ECONOMIC CRISIS

4. EFFECTS OF THE GLOBAL ECONOMIC CRISIS • The full effect of the global economic crisis was felt in South Africa during 2008. The effect on the labour market was devastating. • For employers it brought varying degrees of reduced demand for goods and services, increased operating costs , depressed margins and cash flows, restructuring and business closures. • For workers, this translated into economic hardship, job insecurity and massive job losses. • The situation was dire, to say the least

5. BUSINESS CLOSURES

6. TOTAL EMPLOYMENT

7. LARGE SCALE RETRENCHMENTS REFERRAL TREND( > 50 employees)

8. SMALL SCALE RETRENCHMENTS REFERRAL TREND( < 50 employees)

9. THE MANDATE

10. LABOUR RELATIONS ACT • Section 189 - Dismissals based on operational requirements by employers with less than 50 employees. • Section 189A - Dismissals based on operational requirements by employers with more than 50 employees

12. NEDLAC FRAMEWORK DOCUMENT “Employers and labour will be encouraged to explore all possible alternatives to retrenchments” “They will be encouraged to utilize facilitation by the CCMA as provided for in section 189A of the LRA” “The parties agree to explore ways to strengthen the CCMA in regard to its role in avoiding retrenchments”

13. NEDLAC FRAMEWORK DOCUMENT “In addition to other measures to avoid retrenchment, one further option that the parties will consider is training layoffs, financed by the NSF and SETAs, for workers whose employers would ordinarily retrench them and which can be introduced on terms that would keep them in employment during the economic downturn but reskill them as an investment for the future economic recovery.”

14. LIMITATIONS OF THE MANDATES • Section 189 - Dismissals based on operational requirements by employers with less than 50 employees. CCMA involvement is conciliation after the retrenchments have been effected, and arbitration in certain circumstances. • Section 189A - Dismissals based on operational requirements by employers with more than 50 employees. CCMA involvement is facilitation when retrenchment is contemplated, if parties so agree

15. LIMITATIONS OF THE MANDATES • NEDLAC Framework document doesn’t really empower the CCMA - “will be encouraged to explore”, “will be encouraged to utilize”, “will be encouraged to consider” • Problem of the distance between the intentions of the parties at NEDLAC and the parties at the rock face

16. THE RESPONSE

17. PRINCIPLES INFORMING THE RESPONSE • Extent of the problem called for creative thinking beyond the mandates, and a transition from ‘business as usual’ to ‘business unusual’ • Conventional wisdom of business to shed jobs as the measure of first resort in bad trading times needed to be challenged and realigned • Inextricable link between job insecurity and business distress dictated that neither issue could be dealt with in isolation – can’t save jobs without saving businesses

18. PRINCIPLES INFORMING THE RESPONSE • Cyclical nature of the economy required promotion of a recovery focused mindset even though the future looked bleak • Needed a multi faceted approach informed by the intention of the NEDLAC framework that was both proactive and reactive; involving both an internal and external focus • Realisation that we could not solve the problem, but could make a difference • Realisation that we were at the centre stage in the quest to save jobs

19. COMPONENTS OF THE RESPONSE

20. HOLISTIC APPROACH • The Holistic approach informs the approach adopted by Commissioners when dealing with retrenchment matters, in line with the NEDLAC framework document • It places emphasis on looking through the problem for sustainable solutions, adopting a support and advocacy role and promoting mindset changes and innovative ideas, while maintaining impartiality • Includes the consideration of a wide array of alternatives to retrenchment • If retrenchment is inevitable, it involves facilitating access to survival and support services for retrenched employees • Also involves liaison with organisations such as Productivity SA and the Industrial Development Corporation for business improvement / rescue in appropriate circumstances.

21. PROJECT OFFICE • Funded by the Employment Promotion Project • Staffed by a Project Manager and Assistant Project Manager • Responsible for promotion & effective implementation of the Training Layoff Scheme and the development & application of the holistic approach to dealing with job insecurity and business distress

22. LINKING WITH INSTITUTIONS • WORKER ASSISTANCE • Unemployment Insurance Fund • National Youth Development Agency • Employment Services South Africa • Sector Education and Training Authorities • South African Business Coalition on HIV/AIDS • BUSINESS ASSISTANCE • Productivity South Africa • Industrial Development Corporation

23. ENHANCING INTERNAL CAPACITY & BUSINESS PROCESSES • Appointment of a dedicated Commissioner in each regional office to coordinate all job insecurity and business distress activities • Appointment of a panel of Commissioners (Facilitators) in each regional office to deal with retrenchment matters • Intensive and regular briefing of Commissioners • Implementation of guidelines to ensure priority screening, effective allocation and management of retrenchment and severance pay disputes

24. INFORMATION SHARING & AWARENES RAISING • Over 200 information sharing & awareness events held over the past 10 months in all CCMA regions to promote the holistic approach to dealing with job insecurity and business distress, and the Training Layoff Scheme • Events included presentations, briefings, inputs at seminars, workshops & road shows, community radio stations • Constituencies involved – trade unions, employers, bargaining councils & SETA’s • Brochure on “Dealing with Job Insecurity” published and distributed

25. THE TRAINING LAYOFF SCHEME • The Training Layoff Scheme is an alternative to retrenchment • It is available to businesses that are experiencing distress due to the economic crisis and that are intending to retrench workers. • It involves a temporary layoff of workers for up to 3 months, during which time workers attend training provided by a SETA. • Workers are not paid a salary while on the scheme, instead they receive a training allowance funded by the NSF to the value of 50% of their wages to a maximum of R6,239 pm . The employer bears the cost of a basic social benefit package (risk benefits, pension / provident fund)

26. THE TRAINING LAYOFF SCHEME • The scheme serves to assist workers facing retrenchment to avert retrenchment while at the same time allowing them an opportunity to upskill themselves thereby improving their career prospects with the same employer or a new employer, should retrenchment become inevitable • The scheme serves to assist businesses in distress by affording them short tem financial relief by way of a reduction in the payroll.

27. THE IMPACT

28. “We will support the work of the Commission for Conciliation, Mediation and Arbitration to assist employers and workers to find alternatives to retrenchments through the relevant legal process. To date, CCMA Commissioners have saved over four thousand (4,000) jobs through facilitation processes, and provided ongoing advice and support to retrenched workers” President Jacob G. Zuma State of the Nation Address, 3rd June 2009

29. FACILITATION OUTCOMES (2009)

30. s189A FACILITATION OUTCOMES (2010 To date)

31. THE IMPACT

32. TRAINING LAYOFF SCHEME (TLS)

33. CHALLENGES

34. CHALLENGES • Parties in NEDLAC are far removed from parties at the rock face, as a result of which agreements do not necessarily filter through • Business mindset of shedding jobs as measure of first resort in troubled trading times is still prevalent • Scant correlation between jobs lost in the economy and the caseload of retrenchment matters, indicates that the bulk of these matters have no CCMA (or Bargaining Council) involvement

35. CHALLENGES • Linking all government offerings into a synchronised coherent format • Inadequate and fragmented information flow on available external resources and support • External challenges regarding working together with implementation partners in case of Training Layoff Scheme.

36. Revolutionising Workplace Relations