From the Chief Executive Officer’s Desk - March to April 2018

For reasons that that have to do with our past, the relationship between business and government in South Africa has taken different forms over the past few years. Following the dawn of democracy in 1994, the relationship between the two stakeholder groups has broadly taken at least three forms.

During the Mandela years, business was an enthusiastic partner which was immensely relieved that the country had made a peaceful transition from a period when South Africa was ostracized as an international pariah that had to contend with punitive economic sanctions to a democratic era. Generally, therefore, business fell all over itself to work with the Mandela government in an effort to redress some of the wrongs of the past. All Madiba had to do was to pick up the phone and dial the numbers of captains of industry of the time to get significant contributions made or pledged towards the construction of schools or clinics, for instance.

During the Thabo Mbeki presidency, strains appeared for the first time in that relationship. This followed the Mbeki government’s emphasis on transformation in general and black economic empowerment in particular, and on the adoption of a strong African – as opposed to rainbowish – identity for the country. That was the era when the first version of the Mining Charter was concluded and when various high-profile BEE transactions were concluded.

However, even as he came down hard on business when it came to transformation, nevertheless President Mbeki appreciated the strategic importance of business when it came to job creation and economic growth and surrounded himself with some of the wisest businessmen and women who served as his economic advisers.

During the Zuma presidency, a serious disconnect between business and government occurred for a variety of reasons, among them open hostility from the governing party towards business and the former’s poor management of the economy. In word and deed, business – like educated black compatriots who were labelled as “clever blacks” – was positively considered an enemy, with greater emphasis placed on the public sector, particularly State-owned companies, as strategic levers to deliver on job creation and, subsequently, on the need to create black industrialists.

It is during the Zuma presidency that organized black business walked out of Business Unity South Africa, which was formed during the Mbeki era, to form the Black Business Council.

Generally, then, business’s relationship with government evolved as follows over the years, with the former:

  • Being fervent proponents, beneficiaries and enforcers of apartheid;
  • struggling through the lean years of economic sanctions in the late 1980s, during which some – like Anglo American – began to review some of their policies and American companies operating in South Africa were forced by the Sullivan Principles to embrace and even nurture black talent;
  • falling in love with the “rainbow nation” dispensation of Nelson Mandela and the opportunities that it heralded for it, with most of the established big companies enthusiastically partnering with Madiba in their corporate social investment initiatives;
  • accepting the imperative of economic transformation by implementing BEE policies and concluding some high-profile BEE transactions during the Mbeki presidency; and
  • being sidelined and becoming disillusioned with the Zuma administration and, consequently, taking the foot off the transformation pedal.

The five eras described above show that the Zuma era was very much an aberration. Throughout the period outlined above, business was acknowledged as a strategic stakeholder not only with a responsibility to obey the country’s laws, such as they were, but also with rights to articulate its own concerns to the powers that be. That much was acknowledged by the PW Botha, FW de Klerk, Nelson Mandela and Mbeki governments.

It was only during the Zuma years that business – especially “white business” – was myopically considered to be an enemy to be starved of oxygen. “White monopoly capital” was to be crushed.

Notwithstanding the unfortunate experience of the past nine years, business remains a legitimate – and strategic – stakeholder without which South Africa would not realize its true economic potential. After all, it is business that creates jobs, pays corporate taxes from the profits that it generates and employs men and women who go on to be taxpayers. The Government’s role in the economy is to create a climate conducive to growth, ensure policy certainty and coherence, and sell the country abroad as an attractive investment destination.

Therefore, even in present-day South Africa where significant portions of business are not as transformed as they should be, business has every right to make its voice heard on matters of importance to it and to lobby – transparently and not through backhanders and other such fraudulent inducements – for policies that it deems to be in business’s interests.

Perhaps more importantly, business needs to engage in a meaningful partnership with the elected government and to temper its own interests with those of the country. For instance, while some myopic business leaders may not fully appreciate the need for transformation, it is fundamentally in the country’s – and, by extension, their own – best interests that thorough-going economic transformation occurs expeditiously.

Therefore, while it is well within its right to advocate for certain policies that it considers necessary for growth, nevertheless business remains obliged to respect and observe all the country’s laws, and not only those with which it agrees.  The extent to which business can be taken seriously and, therefore, have a higher degree of success with its lobbying activities depends very much on its perceived legitimacy.

Business’s collective social and political legitimacy will be considerably enhanced by the degree to which it embraces transformation, removes vestiges of racism that may remain hidden in its crevices and works with the elected government to combat corruption – including collusion – within its ranks. To this end, the CEO Initiative was a powerful example of the kind of meaningful partnership that is required between business and government.

As a corporate citizen, business has every right to make its voice heard on important matters of the day – especially on policy incoherence, destructive policies, corruption and poor governance – that will have negative economic and social consequences for the country. Like civil society, business needs to remain alert at all times, regardless of the government or individual in power at a given moment.

However, in so doing, business will be well advised to avoid falling into the trap of backing one or the other faction within the governing party or one party versus others in our body politic. As a collective, business must be above the political fray and stand only for principles, and not for individuals or parties.

Kaizer M. Nyatsumba

Chief Executive Officer


DIRECTORS, CEOs AND MANAGERS: STAYING CURRENT IS YOUR LEGAL AND ETHICAL DUTY

Labour Case Law: It’s all in the interpretation

Lawyers are the ultimate knowledge workers. Quality legal advice is dependent on access to accurate and timely legal information. As such, staying informed about legislative changes, new Government policies or recent case law is a vital part of the job. Thankfully, if you want in-depth analysis and true thought leadership, you should attend a SEIFSA Industrial Relations and Legal Services seminar, where you will:

  • Save time: automatically and efficiently receive the latest information and research;
  • Keep up to date: stay informed of recent developments in your areas of interest; and
  • Better work output: your work quality will improve from having the latest information.

In South Africa with its militant workforce and volatile Industrial Relations environment, it assumes an even more important role. Your first reaction counts, and the wrong or even outdated advice can ruin relationships with workers and trade unions irreparably. The result is that trust can be broken for years to come, undermining any attempts at negotiations. Make no mistake, labour law and industrial relations are as personal as it gets. Don’t ever let the distance between your office and the shop floor mislead you.

The metals and engineering sector sits at the apex of industrial relations complexity. Your knowledge and consequent advice have an immediacy not necessarily felt in other industries. Through its many years of negotiations, SEIFSA has experienced it first-hand.

The SEIFSA team will present the most important cases and then practically dissect the consequences for industry. The team’s goal is to show you how to react when faced with similar situations. The team will demonstrate how to mitigate risk and role-play how these cases could have played out on a larger industrial relations scale.

The goal of SEIFSA’s one-day seminar will be to practically work through each case and show it as a real scenario. You will be given exercises that ask you to assume the role of the CEO, the HR Manager and, finally, the legal adviser. What are their expectations and how will you, in the role of Legal Adviser or Industrial relations Manager, respond, coordinate and communicate the response? You need to know the latest developments on:

  • Dismissals for Strike-related misconduct
  • Discrimination in employment
    • Equal pay for work of equal value
    • Defences against claims of unfair discrimination
    • Role of Independent Contractors
    • Section 197 transfers
    • Changing terms and conditions of employment
    • Liability of trade unions for the wrongful conduct of their members
  • Legislative Developments
    • National Minimum Wage Bill 31/2017
    • Labour Relations Amendment Bill 32/2017
    • Basic Conditions of Employment Amendment Bill 30/2017

Therefore, if you are an IR and/or HR Practitioner, a Legal Practitioner, a line Manager responsible for Industrial Relations or Human Resources functions, SEIFSA’s seminar must be considered as a “can’t-miss” event.

The goal of SEIFSA’s one-day seminar will be to practically work through each case and show it as a real scenario. You will be given exercises that ask you to assume the role of the CEO, the HR Manager and, finally, the legal adviser. What are their expectations and how will you, in the role of Legal Adviser or Industrial relations Manager, respond, coordinate and communicate the response? You need to know the latest developments on:

  • Dismissals for Strike-related misconduct
  • Discrimination in employment
    • Equal pay for work of equal value
    • Defences against claims of unfair discrimination
    • Role of Independent Contractors
    • Section 197 transfers
    • Changing terms and conditions of employment
    • Liability of trade unions for the wrongful conduct of their members
  • Legislative Developments
    • National Minimum Wage Bill 31/2017
    • Labour Relations Amendment Bill 32/2017
    • Basic Conditions of Employment Amendment Bill 30/2017

Therefore, if you are an IR and/or HR Practitioner, a Legal Practitioner, a line Manager responsible for Industrial Relations or Human Resources functions, SEIFSA’s seminar must be considered as a “can’t-miss” event.

Let’s look at an example. Take the key changes that deal with the employees of temporary employment services, employees on fixed-term contracts and part-time employees. In summary, the amendments are aimed at

  • Limiting the use of labour brokers to genuine temporary needs. For workers earning below the Basic Conditions of Employment Act earnings threshold, if the worker is not performing a “temporary service” for the client – that is work lasting less than three months – then not only is the client deemed to be the employer of the labour-broker worker, but on the whole the worker is also entitled to be treated no less favourably than an employee of the client performing the same or similar work, unless there is a justifiable reason for different treatment.
  • Employers can only employ somebody on a fixed-term contract or successive fixed-term contracts for longer than three months if the nature of the work is of a genuinely limited or defined duration, or the employer can demonstrate justifiable reasons for fixing the term of the contract.

Labour Law principles as set out in legislation are often broad, and the application of these principles is uncertain in most cases. The problem is that interpretation by courts is sometimes inconsistent.

SEIFSA’s Industrial Relations and Legal Services team, through case law and academic discussion papers, is able to unpack the practical application of legislation and its implications for your workplace.

The company-employee relationship is, like any other relationship, vulnerable to the vagaries of personal and communication style and perceptions of “the other”. The relationship also naturally creates a perception of “us” and “them”. This is why rules of engagement are absolutely essential in guiding professionals through a potential minefield. Your goal should be the long-term stability and potential growth of the business – this includes stability of the relationships between the employer and the employees.

Protecting this sometimes-fragile bond is part and parcel of SEIFSA’s core mandate.For that reason, we keep our members informed about recent developments in Labour Law. We invite you to leverage our skills and knowledge to ensure that your relationships with employees remain stable, calm, cordial and mutually beneficial.


SEIFSA CEO Interviewed On Business Day TV

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