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CHAPTER 3 THE ROLE AND APPLICATION OF ILO STANDARDS TO NON-STANDARD WORKERS, THE DECENT WORK AGENDA, AND REGIONAL INSTRUMENTS IN SOUTHERN AFRICA
Introduction
An examination of the role and application of ILO standards to non-standard workers, the decent work agenda, and regional instruments is required for this study of the regulation of non-standard workers in Southern Africa: the case of South Africa with reference to several other SADC countries because it is relevant to the core theme of the study. This chapter set the foundation of international legal principles which signatory states are to follow as guidelines in addressing challenges facing non-standard workers in the region.
The theoretical concepts defined in Chapter 2 of this study are very important to the role and application of ILO standards to non-standard workers, the decent work agenda, and regional instruments in Southern Africa. The manner in which a particular concept is defined to a certain extent determines what amount of labour protection will be enjoyed in practice. For example, non-standard workers, as opposed to standard workers, may not have access to social protection, will have lower levels of employment security (contracts can be easily terminated) and will face greater risks with respect to workplace health and safety. They will also experience difficulties with exercising their right to collective bargaining or to join trade unions.
Southern African states have thus far accepted the ILO core standards as a basis for regulating minimum employment standards. The SADC Charter of Fundamental Social Rights strengthens the ILO international labour standards as the basis for the regional vision in the SADC Treaty, as described by the Treaty’s goals, prime concerns and blueprints. The ILO has had a powerful influence on labour law policies in Southern African states and has encouraged member states to ratify and apply core labour standards. Today all member states in the region have ratified the eight ILO core labour standards.
The ILO has adopted specific Conventions and Recommendations to address concerns about particular categories of non-standard workers,348 establishing standards that provide international benchmarks for non-standard employment.
This chapter explores the historical evolution of the ILO from when it was founded by the Versailles Treaty. The chapter also examines the unique tripartite nature of the structures and mechanisms of the ILO in the UN system, in which employers’ and workers’ representatives – as ‘social partners’ – have an equivalent voice with those of governments to determine the ILO’s guidelines and procedures. The ILO structure works through the International Labour Conference, the Governing Body, the International Labour Office and the ILO Supervisory Mechanisms, the unique tripartite structure of the ILO in the UN system, the ILO’s supervisory systems and mechanisms, the Committee on Freedom of Association, Article 24 and Article 26 complaints, and the duty to report on non-ratified Conventions and Recommendations.
In addition, the chapter examines the decent work agenda and its significance for non-standard work in the Southern African labour market, and briefly discusses the relation between non-standard employment and labour migration in Southern Africa. This chapter also sheds light on regional standards, the challenges of unemployment, poverty and income inequality, and labour market transitions in Southern Africa.
It is worth noting that discourse on the social dimension of globalisation has emphasised the vitality of international labour standards, not only as a benchmark for the appraisal of domestic labour legislation, but also as a premise for regulating global trade.349 International instruments that give effect to international standards are expressly recognised by the South African Constitution as points of reference for the interpretation of labour law and other legislation.
As stated by Greenfield:
non-standard forms of employment are not new, but they have become a more widespread feature of contemporary labour markets. We need to make sure that all jobs, regardless of their contractual arrangement, provide workers with adequate and stable earnings, protection from occupational hazards, social protection and the right to organise and bargain collectively.350
These words aptly capture the relevance of the ILO to non-standard workers, who often find themselves in vulnerable working circumstances. This chapter demonstrates that a meaningful study of laws pertaining to labour and non-standard employment in Southern Africa in particular is not attainable without at least an elementary understanding of the institutions that shape international labour standards, the basic content of those standards, and the relationship between them and domestic labour legislation. This chapter also discusses the role, application and relevance of international labour law standards in Southern Africa.
However, it is necessary to point out that employees in traditional full-time employment are well protected in some Southern African states. The currently available regulation is largely unable to protect non-standard workers, and in numerous instances workers are regarded as ‘non-standard’, due to the narrow interpretation of the word ‘employee’ discussed in chapter 2 of this work.
Casualisation and externalisation have resulted in the exclusion of numerous workers from the protection provided by labour legislation.351 Union coverage for non-standard workers is very low. Social insurance structures and labour directives that protect non-standard workers can be realised only if workers are given a voice and representation in trade unions. The ILO has also embraced the concept of ‘decent work’, which has four goals: employment opportunities, workers’ rights, social protection, and representation.352 The ILO decent work agenda can be used to promote the improvement of the conditions of vulnerable non-standard workers.
The historical evolution of the International Labour Organisation
The ILO was founded in 1919 by the Versailles Treaty.353 The Versailles Treaty gave birth to the League of Nations. After the Second World War, the League of Nations was replaced by the United Nations (UN), and the ILO became the premier agency of the United Nations in 1946.354
The intentions and purposes of the ILO are presented in the Preamble to its Constitution, passed in 1919, which proclaims that ‘universal and lasting peace can be established only if it is based upon social justice.’ Thus, the primary intention of the ILO is to help advance social conditions throughout the globe. The following examples of tangible measures ‘urgently required’ are listed in the Preamble: regulation of working hours, including the establishment of a maximum working day and week; regulation of the labour supply; avoidance of joblessness; provision of a satisfactory living wage; protection of the worker against illness, disease, and injury as a result of his or her employment; protection of children, young persons, and women; provision for old age and injury; protection of the welfare of workers when employed in states that are not their own; acknowledgement of the standard of equal compensation for work of equal value; and acknowledgement of the principle of freedom of association.
Global action around these issues is required. The Preamble clearly states that ‘the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries.’ In addition, in submitting to the ILO Constitution, the member governments affirm in the preamble that they are ‘moved by sentiments of justice and humanity as well as by the desire to secure the permanent peace of the world.’355
Furthermore, the ILO assumes and executes an extensive variety of activities, from conducting research to broadcasting information on the domain of work. With its headquarters in Geneva, it also has regional head offices in a number of capital cities around the world. The ILO provides technical assistance and runs co-operation projects, which assist in building the capacity of employers and employees in organisations established in developing countries. It is worth noting that the first SADC member state to sign the Versailles Treaty was the Union of South Africa. Ultimately, all members of the League of Nations became founder members of the ILO.
Blanpain & Colucci The Globalisation of Labour Standards: The Soft Law Track 10.
Preamble to the Constitution of the ILO.
The unique tripartite structure of the ILO in the UN system
The ILO is made up of three main bodies: the International Labour Conference, the Governing Body, and the International Labour Office.356 Figure 1 shows the unique tripartite structure of the ILO in the United Nations system, in which employers’ and workers’ representatives – the ‘social partners’ – have an equivalent voice with those of governments in developing the ILO’s rules and procedures. Figure 2 shows the composition of the ILO and how it functions.
The ILO has empowered the Conference to be the leading policy-making body of the ILO. It assembles yearly in Geneva, and is attended by the national delegations of member states. The delegation consists of two individuals chosen by the government, one who speaks on behalf of employers and one who speaks on behalf of workers. These representatives are proposed by the most representative national employer body and national worker body. The main function of the Conference is to adopt new labour standards.
The Governing Body is responsible for the executive business of the ILO. It consists of 56 members: 28 from government, 14 from employer representatives and 14 from worker representatives. The Governing Body determines which matters are to be put on the agenda of the Conference, manages the budget of the ILO, and makes decisions on policy issues.
The International Labour Office is the ILO’s bureaucracy, and performs the day-to-day work necessary to give effect to the ILO’s mandate. The Director General, who is appointed by the Governing Body for a fixed term, heads the office.
The ILO’s supervisory systems and mechanisms
When a state ratifies a Convention this gives rise to an obligation to apply its terms in national law and practice. The supervisory mechanisms established by the ILO’s Constitution exercise regular supervision, in the form of the inspection of reports submitted by member countries to the various supervisory bodies. Figure 3 shows the supervisory bodies and mechanisms of the ILO, in terms of Article 22 of the ILO Constitution.
The Committee of Experts on the Application of Conventions and Recommendations
In 1926, the Committee of Experts was established in terms of a resolution adopted by the Conference. Its mandate is to examine reports made by member countries.
In terms of Article 22 of the ILO Constitution, member states are obliged to report in accordance with the required reporting cycle on measures taken to give effect to the terms of Conventions that they may have ratified. In terms of Article 19, reports may be requested from member states on unratified Conventions and Recommendations. Article 19 reports deal with the position of a member state’s national law and practice in relation to Conventions that it has not ratified. The purpose of these reports is to reflect on the subject matter in national law and practice in relation to the subject matter in the Convention and Recommendation, and to enable the supervisory bodies to consider obstacles to the ratifications of Conventions.
The Committee of Experts meets in Geneva annually and its meetings are private. The documentation that is made available to the Committee includes information supplied by member states in their reports, or to the Conference Committee on the Application of Standards. The Committee can also examine legislation, collective agreements, court judgments, information on the results of inspections furnished by member states, comments made by employers’ organisations and workers’ organisations, and any conclusions reached by the ILO supervisory bodies, for example, the Committee on Freedom of Association.
CHAPTER 1 GENERAL INTRODUCTION
1.1 Introduction and background to the study
1.2 Research problem and the subject matter of the study
1.3 Aims, objectives and importance of the study
1.4 Limitations and research problems of the study
1.5 Literature review
1.6 Data collection and research methodology
1.7 The research questions
1.8 Assumptions and expected findings
1.9 Organisation of the thesis
CHAPTER 2 THEORETICAL BACKGROUND TO NON-STANDARD WORK AND PARADIGMS OF WORK IN SOUTHERN AFRICA
2.1 Introduction
2.2 Who is an employee?
2.3 Who is a worker?
2.4 Standard and non-standard employment
2.5 Defining various forms of non-standard employment
2.6 Employees, employers and labour relations
2.7 Paradigms of work in Southern Africa
2.8 Conclusion
CHAPTER 3 THE ROLE AND APPLICATION OF ILO STANDARDS TO NON-STANDARD WORKERS, THE DECENT WORK AGENDA, AND REGIONAL INSTRUMENTS IN SOUTHERN AFRICA
3.1 Introduction
3.2 The historical evolution of the International Labour Organisation
3.3 The unique tripartite structure of the ILO in the UN system
3.4 The ILO’s supervisory systems and mechanisms
3.5 ILO influence on the labour law systems of Southern Africa and other factors that affect non-standard work
3.6 ILO instruments pertinent to tackling the issue of non-standard work in Southern Africa
3.7 Conclusion
CHAPTER 4 IS THE INTERPRETATION QUESTION OVER? UNRAVELLING THE REASONABLENESS OF FIXED-TERM EMPLOYMENT CONTRACT RENEWALS AND THE PROTECTION AFFORDED TO NON
4.1 Introduction
4.2 Fixed-term employment relationships
4.3 What is reasonable expectation?
4.5 Limits and content of section 186(2) of the LRA
4.6 Conclusion
CHAPTER 5 COLLECTIVE BARGAINING AND TRADE UNIONS IN A GLOBALISED EPOCH146
5.1 Introduction
5.2 Significance of globalisation and factors influencing the growth of non- standard employment in Southern Africa
5.3 Collective bargaining and trade unions
5.4 Freedom of association and non-standard workers
5.5 Trade unionism defined
5.6 Conclusion
CHAPTER 6 CONCLUSIONS AND RECOMMENDATIONS
6.1 Research findings
6.2 Recommendations for further research
BIBLIOGRAPHY
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