Everyone including all the political parties and even government have said that South Africa’s priority over the next few years must be job creation. Most people agree, especially the economists that job creation will be done by the small business community.  Over and above this, many are referring to sustainable jobs as opposed to those that are created by government with a short life span.

The abovementioned is the basics.  From here on there is a great deal of disagreement. The South African government believes they can appease both the Communist Party, Cosatu are legislating more, and more onerous labour laws coupled with higher and higher demands for a minimum wage. These interferences supposedly enhance the working conditions of those who are already in employ but invariably these unsustainable demands lead to job losses and certainly militate against any sort of job creation.

There have been many institutions and individuals who have looked at the parlous  situation of unemployment in South Africa and who have come up with suggestions, ideas and structures which might somehow allow small business to thrive and create more jobs. Institutions such as the Free Market Foundation have spent an enormous amount of time, energy and money investigating and studying the ways and means of ensuring that small business can move into the 21st century and produce the much-needed jobs in South Africa today.  The suggestions certainly can be workable and would probably resonate with the business community, unfortunately, these suggestions do not have the political traction much needed in the South African environment and probably will never be implemented.

What is required is not to change the nature of our labour laws and to not bring back sweat shops but to have a look at the facts on the ground and to investigate which of those problems can be cured without changing the essence of our labour law.  Most businesses in South Africa today would agree that we need to ensure safety and security for each and every single employee and that decent jobs have to be created.  The minute we move away from the decency of the jobs we will be undermining The Labour Relations and The Basic Conditions of Employment Act.

Many of us in the labour law professional field have noticed small things which could be changed so as to ensure that the perception of our labour law is not so negative.  It is this very perception of negativity that leads businesses to think that they should rather mechanise and should not invest in their own businesses.

One small change to the basic structure of the Commission for Conciliation Mediation and Arbitration and the Bargaining Councils could release thousands of hours of down time purely by the stroke of a pen. I think most of us agree that the Commissioners, Conciliators and Arbitrators at the Bargaining Councils and the CCMA are well trained.  These individuals are specifically geared to look at any particular problem without bias.  A mere regulation in the form of pre conciliation investigation could stop many disputes from going into the time consuming and expensive conciliation and arbitration. The regulation could outline that the CCMA Commissioner could make a jurisdictional decision before allowing the parties to enter into the dispute arena.  In common language this would be known as “gate keeping”. Although gate keeping can sometimes be a problem, we should have faith in our Commissioners who after a cursory assessment of the dispute would say that they are not going to accept that particular dispute.

Obviously, there needs to be a very careful look at all sorts of exemptions from our labour law for small business.  One would not exempt small business from discrimination and or safety controls so as to ensure that the employees have the Basic Conditions of Employment Act protection.

Imagine if a small business knows that they can take on a new employee for a period of one year without the onerous obligations of the various dismissal laws. This would free up the perception of negativity and it would allow not only salary for the unemployed individual for twelve months but would also give that individual a skill and something to put on a curriculum vitae. These exemptions work in most jurisdictions and are clearly needed in South Africa right now.

It does not help to have high job security if the individual can’t find a job in the first place.  We need to create an environment where the contractual relationship between employer and employee is more easily understood and easily dissolved.  It is the perception of the dissolution of the contractual relationship which makes business worried.  The majority of the small employers don’t have the expertise and or the access to knowledge to enable them to cope with the plethora of our labour legislation.  It is this unknown that disallows a future employer from saying “let’s take a chance with this individual”. Taking a chance at this juncture in our labour history is not an option.  We need to create the environment where it does become an option.  With the inflexibility of our labour legislation that option is not even on the cards.

The majority of our workforce is unskilled and it is those workers who need access to jobs. Invariably we find that the skilled employees can pick and choose jobs and it is the skilled employees who don’t have a problem finding better and better jobs when they want to move on. The low skilled job seekers are those that are suffering from the current environment. It is those people that we need to help. By helping the low skilled employees find jobs we are also helping the small business community.  It is an obstacle for the low skilled employees and for the small businesses when they have to face a multitude of our onerous termination procedures.  Most businesses today understand that the termination procedures are complex and they understand that it is going to be costly.  In face of those complex procedures they would rather not hire.

Likewise the minimum wage requirements in many industries and possibly even in South Africa across the board also act as a deterrent for job creation.  It could be argued that the minimum wage requirements are good for those who are already in employ but unfortunately we have seen in South Africa today that some of these minimum wages have been set too high which in turn have created further job losses.  We only need to have a look at agriculture as an example.  We need more and more exemptions from these minimum wage requirements so as to enable the new job seeker who is low skilled, to enter the market.  It might be politically correct to support minimum salary laws but people need to be aware that it is this politically correct law that keeps them from finding a job in the first place.  These minimum wage regulations have created a working elite and this has structured an environment keeping out the unskilled and sometimes unschooled workers.  This discrimination against unskilled workers is dangerous and is already leading to most horrific subjugation this country has ever seen.  Unfortunately the majority of the unskilled future labour force will probably never find a job unless we have some structural changes to our system.  The economists tell us that if an unskilled future worker has not found employment by the age of twenty five they will probably never find employment.  This is a volcano waiting to erupt.

I believe all right thinking South Africans should do whatever is necessary to put pressure on their representatives in various echelons of society to ensure that our system does have a rethink on employment and it is not left just to government to make those decisions.