Achieving 'Decent Work' in South Africa?

The fundamental goal of the International Labor Organization is the achievement of decent and productive work for both women and men in conditions of freedom, equity, security and human dignity. The South African government has pledged its commitment to the attainment of decent work and sustainable livelihoods for all workers and has undertaken to mainstream decent work imperatives into national development strategies. The four strategic objectives of decent work as identified by the ILO are: the promotion of standards and rights at work, to ensure that worker's constitutionally protected rights to dignity, equality and fair labor practices, amongst others, are safeguarded by appropriate legal frameworks; the promotion of employment creation and income opportunities, with the goal being not just the creation of jobs but the creation of jobs of acceptable quality; the provision and improvement of social protection and social security, which are regarded as fundamental to the alleviation of poverty, inequality and the burden of care responsibilities; and the promotion of social dialogue and tripartism. This article considers the progress made towards the attainment of these decent work objectives in South Africa, using five statistical indicators to measure such progress namely: employment opportunities; adequate earnings and productive work; stability and security of work; (iv) social protection; and social dialogue and workplace relations. It concludes that high levels of unemployment and a weakened economy in South Africa have given rise to a growing informal sector and an increase in unacceptable working conditions and exploitation. The rights of workers in the formal sector have not filtered down to those in the informal sector, who remains vulnerable and unrepresented. Job creation initiatives have been undermined by the global recession and infrastructural shortcomings and ambitious governmental targets appear to be unachievable, with youth unemployment levels and gender inequalities remaining of grave concern. Social protection programmes fail to provide adequate coverage to the majority of the economically active population. Social dialogue processes and organizational structures fail to accommodate or represent the interests of the informal sector. Until these problems are overcome, the article concludes, it remains unlikely that decent work imperatives will be attained.


Introduction
The fundamental goal of the International Labour Organisation (ILO) is the achievement of "decent and productive work for both women and men in conditions of freedom, equity, security and human dignity". 1 The concept of decent work "is based on the understanding that work is not only a source of income but more importantly a source of personal dignity, family stability, peace in community, and economic growth that expands opportunities for productive jobs and employment." 2 In the furtherance of this goal the ILO's Decent Work Agenda 3 aims to implement decent work at country level by means of policy and institutional intervention, and Decent Work Country Programmes have been developed, in coordination with ILO members, to identify decent work deficits in member countries and to devise targets and strategies to overcome such deficits. In support of this the South African government has pledged its commitment to the attainment of decent work and sustainable livelihoods for all workers and has undertaken to mainstream decent work imperatives into national development strategies. 4 The four strategic objectives of decent work as identified by the ILO are: i) the promotion of standards and rights at work, to ensure that workers' constitutionally protected rights to dignity, equality and fair labour practices amongst others are safeguarded by appropriate legal frameworks; (ii) the promotion of employment creation and income opportunities, with the goal being "not just the creation of jobs, Zuma 2011 www.ilo.org. As early as in 2007 the ANC committed in the Polokwane Declaration to "making the creation of decent work opportunities the primary focus of economic policies". but the creation of jobs of acceptable quality"; 5 (iii) the provision and improvement of social protection and social security, which is regarded as fundamental to the alleviation of poverty, inequality and the burden of care responsibilities; and (iv) the promotion of social dialogue and tripartism.
While the ideals of decent work extend well beyond the confines of the employment relationship, this article will be limited to an analysis of five statistical indicators, namely: (i) employment opportunities; (ii) adequate earnings and productive work; (iii) stability and security of work; (iv) social protection; and (v) social dialogue and workplace relations; to measure progress made towards the attainment of decent work objectives in South Africa. In so doing the obstacles to the attainment of decent work and the measures required to overcome such obstacles are identified.

The nature of the work force in South Africa
The South African work force is subject to both formal and informal employment relationships. According to the Quarterly Labour Survey for the 1 st quarter of 2012 6 there are 13.4 million people currently employed in South Africa, comprising 9.5 million in the formal sector and 2.1 million in the informal sector. In contradiction the Adcorp Employment Index (September 2011) reports that 12.7 million people are currently employed in the formal sector in South Africa, which comprises of 8.9 million workers engaged in typical employment and 3.8 million in atypical employment. The report indicates that 6.2 million people work in the informal sector, which it identified as the fastest-growing sector. 7 Informal employment, defined by An increased reliance upon outsourcing and sub-contracting arrangements has given rise to the growing "casualisation" 11 of the labour market and an unregulated and insecure labour force. "Externalisation", 12 in terms of which workers are supplied to a client by a third party by means of a commercial contract, has had a similarly detrimental impact on the labour market. The Adcorp Employment Index (September 2011) reports that 998 000 employees are currently employed by temporary employment agencies. In terms of this triangular employment relationship the recruitment, dismissal and employment functions normally performed by employers are outsourced to an intermediary, while the "task side" of the relationship is not outsourced. 13 In many instances the identity of the true employer is obscured and such employees are deprived of legal protection as a result. 14 Gender inequalities continue to undermine decent work objectives, in spite of female labour force participation in South Africa having increased from 38% in 1995 to 48.5% in 2012. 15 Women employees face inequality and disadvantage in the 9 Theron 2008 ILJ 8. 10 Increasing informalisation has been attributed in part to the poor educational levels of work seekers, as those with little or no formal education are more likely to find work in poorly remunerated and unskilled informal employment (Bivens and Gammage 2005 www.epi.org). In 2005 an estimated 16% of workers in the formal economy had completed less than a 6th grade education whilst 36% of the workers in the informal economy had less than a 6th grade education. 3.5% of the informal economy workers had either a diploma or a higher degree. This was in contrast to the 22% of the formal economy workers who had an equivalent level of education. 11 Benjamin 2008 ILJ 1579 defines casualisation as the displacement of standard employment by temporary or part-time employment. 12 "Externalization" is described as the process of economic restructuring in terms of which employment is regulated by a commercial contract rather than by a contract of employment (Benjamin 2008ILJ 1579

Employment opportunities
In order to overcome the decent work deficit in South Africa, job creation is imperative. The concept of decent work entails the existence of employment opportunities for all who are willing and able to work. The South African Decent Work 23 OECD 2010 www.oecd.org 9.9. 24 OECD 2010 www.oecd.org 9.9. The report recommends expanded job search assistance, an upgrade of public job centres and better linkages with job-seeker databases. 25 Stats SA 2012 www.statssa.gov.za. 26 Defined by Stats SA as "a person who was not employed during the reference period, wanted to work, was available to work/start a business but did not take active steps to find work during the last four weeks, provided that the main reason given for not seeking work was any of the following: no jobs available in the area; unable to find work requiring his/her skills; lost hope of finding any kind of work". 27 ILO 2009b www.ilo.org 3. Country Programme prioritises "job rich growth, sustainable enterprises including formalization of the informal sector, and skills development". 28 An important indicator of decent work is the extent to which a country's population is employed. 29 Employment opportunities may be measured using either (a) the employment-to-population ratio, which measures the proportion of the working age population that is employed; or (b) the unemployment rate, which measures the number of unemployed persons as a percentage of the labour force. 30 In the first quarter of 2012 the employment-to-population ratio in South Africa was reported to be 40.9%, the labour force participation rate 54.7% and the unemployment rate 25.2% 31 -a far cry from attaining decent work objectives.
A number of national policies and institutional structures have been established, with the technical and policy support of the ILO, to facilitate job creation. The Expanded Public Works Programme aims to create job opportunities for the unemployed with particular focus on women, youth and other vulnerable groups. The ILO has supported government in the design of the programme and has assisted in its implementation at national and provincial levels. However, research indicates that, in spite of the creation of 500 000 new jobs during phase one of the programme (2004)(2005)(2006)(2007)(2008)(2009)), these jobs were short-term, poorly remunerated and without benefits. A simultaneous loss of 900 000 jobs during this period, attributable to the global recession, undermined any gains made. A target of creating 2 million full-time jobs during phase two of the programme (2010-2014) has been set, yet progress towards the attainment of these goals has been slow. 32 Other national job creation initiatives include a national training layoff scheme 33 to minimise job losses arising out of the increase ten-fold in order to meet government's job creation target of 5 million jobs by 2020. 41 The report indicates that External economic factors, labour regulation, and policies affecting investor sentiment will all play a role in determining how much employment will increase over the next decade. The Government has control over two of these three influences and it will need decisive action on its part to create the conditions necessary for so many jobs to be created over a relatively short space of time. 42 Until job creation can be effectively addressed, decent work objectives are likely to remain solely aspirational.

Adequate earnings and productive work
An adequate living wage is imperative for the attainment of decent work. 43 As pointed out by Anker, "nearly all individuals who work or seek work do so in order to earn an income and ensure the economic well-being of themselves and their households". 44 In South Africa wages and incomes remain highly unequal between the informal and the formal economy, with poverty and inequality assuming racial, impact on poverty levels, improving wages and conditions of employment is of crucial importance in overcoming decent work deficits.
While minimum wages 59 have been established for domestic workers, farm workers, forestry workers and the informal taxi and hospitality sectors -thereby extending protection to more than 3 million workers in South Africa -the income disparities that characterise the South African labour market must be dismantled before decent work objectives can be fulfilled. stipulates that the temporary employment service is the employer of the person whose services have been procured for a client, 64 and limits the client's liability to joint and several liability with the employer for a contravention of the terms and conditions of a collective agreement, arbitration award, sectoral determination or provision of the Basic Conditions of Employment Act. 65 The temporary employment service's employees' terms and conditions of employment are governed by the commercial contract concluded between the temporary employment service and its client and are inevitably reflective of the completely skewed bargaining positions of the contracting parties. It is the client that "determines the parameters of the relationship and is dominant in the relationship". 66 As the economic rationale for the utilisation of temporary employment services is to circumvent the contractual nexus between the client and the employee that would typically arise in a standard employment relationship and allow the client to bypass the gamut of statutory and contractual obligations, these employees are left in a vulnerable position. This vulnerability is at its most acute upon the dismissal of an employee, as the statutory protection against unfair dismissal is rendered impotent by carefully constructed contractual provisions that usually stipulate that employees of temporary employment service are employed in terms of "limited duration contracts" that are deemed to terminate automatically upon the happening of an uncertain future event. 67 While the consequence of joint and several liability is that if a temporary employment service fails to pay amounts owing to its employees the clients for whom the employees work are liable to make payment, this remains a default liability as the client is not the employer and cannot be challenged directly in the Council for Conciliation Mediation and Arbitration (CCMA) or the Labour Court. 68 An employee can proceed against the client only if s/he has obtained judgment or an order against the temporary employment service. 69 Furthermore, outsourcing and subcontracting arrangements that create ambiguity as to the identity of the employer, the misuse of fixed-term contracts of employment and 65 Basic Conditions of Employment Act 75 of 1997. In contradistinction to this provision s 57(1) of the Employment Equity Act 55 of 1998 (EEA) provides that for the purposes of Chapter III of the EEA, a person whose services have been procured for, or provided to, a client by a temporary employment service is deemed to be the employee of that client, where that person's employment with the client is of indefinite duration or for a period of three months or longer. The client and employer are held to be jointly and severally liable for an act of discrimination committed by the temporary employment service on the express or implied instruction of the client (s 57 (2)  the fraudulent use of cooperatives have served to deprive employees of labour law protection and security of employment, and burden workers, their families and society with the costs associated with unregulated work. 70 The proposed amendments to the Labour Relations Act in the Labour Relations Amendment Bill 2012 71 aim to regulate temporary employment services, fixed-term employment contracts and outsourcing arrangements in a bid to ensure decent work for all workers. 72 While the Amendment Bill remains subject to ratification it is clear that the misuse of temporary employment arrangements and the abuse of fixed-term contracts will no longer be tolerateda welcome step towards the attainment of decent work objectives.

Social protection
Adequate social protection, 73 fundamental to the attainment of decent work and poverty reduction, is necessary to provide security against a variety of contingencies and vulnerabilities. 74 While the need for protection from life risks is felt by all persons, the exposure to risks and the type and level of protection available differ substantially among societies. 75 In most developing countries the focal point of social protection policies is to ensure survival, relieve destitution and mitigate livelihood risks. 76 The needs of most people in developing countries can be placed into three categories: (a) basic needs of access to adequate nutrition, access to clean water, sanitation and shelter, primary health care, primary education; (b) contingencies such as sickness, accident, the death of the breadwinner, disability, old age and the needs of 73 Social protection is defined as the protection that society provides against economic and social problems that would otherwise arise due to the reduction or termination of earnings due to maternity, old age and unemployment (ILO 2007a www.ilo.org 172). 74 Such contingencies include ill health, maternity needs, accidents, unemployment, destitution, extreme economic fluctuations, natural disasters and civil conflicts. 75 Anker et al Measuring Decent Work 52. 76 Ghai "Decent Work" 10. and sources of support. 77 Fundamental to effective social protection is "universal coverage, mandatory participation and adequate regulation". 78 In South Africa the right to social security and assistance is constitutionally mandated 79 and in furtherance of this a number of legislative measures have been passed to regulate social insurance and assistance. Despite this there is no comprehensive social security system and the provision of healthcare and retirement benefits is piecemeal and has been largely limited to employees in formal employment. For households affected by HIV/AIDS the lack of social security presents an additional challenge, as the demand for caring services increases at a time when additional income is needed for medical expenses and to compensate for loss of income. 80 In order to consider the effectiveness of the social protection afforded in South Africa, it is necessary to look at the extent and growth of social expenditure.
Research indicates that there has been substantial growth in social spending in South Africa with such spending having increased by more than 50% in the period 2000-2006. This has been attributed largely to an increase in social grant spending by an estimated 127%, with spending per capita having increased at a rate of 21% in 1995-2000 and a further 40% in 2000-2006. 81 One of the statistical indicators used to measure social security is public social security expenditure. 82 Of the state budget of R979.3 billion for the 2011 fiscal year, R577.3 billion was allocated to social services and specifically R189.5 billion to education, R121.9 billion to housing, R112.6 billion to health and R146.9 billion to social protection. This represents an increase of 11.8% from the previous year's expenditure. 83 Furthermore the community-based health-care programme, the National Health Insurance, has been created and aims 77 Ghai "Decent Work" 10. 78 Ghai "Decent Work" 10. 79 Section 27 Constitution of the Republic of South Africa, 1996. 80 Gordhan 2011 www.treasury.gov.za. to ensure the provision of essential quality healthcare to all South Africans, regardless of their socio-economic or employment status. 84 This scheme, which aims to make major changes to the service delivery structures, administrative and management systems of healthcare, is being touted as likely to have a positive impact on the provision of social security if successfully implemented. 85 Notwithstanding these developments, and in spite of government's undertaking to prioritise the extension of social protection and security to both formal and informal employees, the social security system as it stands remains "fragmented and does not provide adequate coverage to ensure the protection of the economically active population". 86

Social dialogue
Effective social dialogue between government, employers and trade unions is required to secure the equitable participation of all employees (formal and informal) in decent and productive work. 87 The ability of workers to organise freely in order to grave concern and gender inequalities continue unabated. Job creation initiatives, which are fundamental to the attainment of decent work, have been undermined by the global recession and infrastructural shortcomings, and ambitious governmental targets appear to be unachievable. Social protection programmes are inadequate and do not provide adequate coverage to the majority of the economically active population. Similarly social dialogue processes and organisational structures have failed to accommodate or represent the interests of the informal sector. In his opening address to the 12 th ILO African Regional Meeting, President Jacob Zuma acknowledged that decent work and job creation can be achieved only through appropriate development policies, regional and continental economic co-operation, infrastructural development and a well functioning educational system and social services. 97 Until these needs are addressed it remains unlikely that decent work imperatives will be attained.
The OECD Economic Survey of South Africa 2010 cautioned that an increased focus on decent work could be counter-productive to job creation 98 and recommended: (a) increasing employment rates by implementing reforms to wage determinations; improving school-to-job transition and addressing lacunas in employment protection regulations; (b) reforming the regulatory environment by reducing entry barriers and increasing the scope for competition; and 99 (c) expanding job-search assistance and upgrading public job centres, including creating better linkages to job-seeker databases; and implementing sectoral minimum wages which are differentiated by age in order to ensure that the youth break into the job market. 100 Minister of Labour Mildred Oliphant echoed these sentiments 101 in stating that "we want jobs and we must strive for decent work", with the starting point being the 97