1. Background

1.1  The National Economic Development and Labour Council (Nedlac) was  established by statute in 1995. 

1.2  The Council is governed by an Executive Council, a Management  Committee, and consists of four Chambers  namely;

• Public Finance and Monetary Policy Chamber;
• Trade and Industry Chamber;
• Labour Market Chamber; and
• Development Chamber.

1.3  The objects, powers and functions of Nedlac as set out in the  Act, are to:

1.3.1. Strive to promote the goals of economic growth, participation in economic decision-making and social equity;

1.3.2. Seek to reach consensus and conclude agreements on matters pertaining to social and economic policy;

1.3.3. Consider all proposed labour legislation relating to labour market policy before it is introduced in Parliament;

1.3.4. Consider all significant changes to social and economic policy before it is implemented or introduced in   
  Parliament;

1.3.5. Encourage and promote the formulation of co-ordinated policy on social and economic matters.

1.3.6. Consider Socio Economic Disputes in terms of Section 77 of the Labour Relations Act

2. Purporse

2.1 As is clear from the objects and functions set out above, Nedlac is obliged to consider all significant changes to social and economic policy. Clearly this could lead to delays if Nedlac does not operate in an efficient and effective manner.

2.2 The purpose of this document is to inform all prospective participants  in Nedlac of the processes, which cover the consideration of matters in Nedlac.

3. Consideration of Issues in Nedlac

Consideration of issues in Nedlac comprises three main phases, namely tabling of the issue for consideration, production of a Nedlac report, submission of reports to the Minister and Parliament. The role of the Executive Director, the Overall Convenors, the Chamber Convenors and the Management Committee and Executive Council's will be dependent on which issues are being tabled, and at what level they are taken up.
 
3.1 Tabling the Issue

3.1.1 Government should table plans for upcoming policy and legislation in the Chamber on a regular basis, and anticipated time-frames within which such issues would need to be discussed.
 
3.1.2 An issue generally in the form of draft policy strategy or legislation should be tabled by any government department through the office of the Executive Director and the Chamber Convenors.

3.1.3 Proper sequencing should be observed in the tabling of matters. In particular, relevant policy documents should be tabled and signed off, before engagement on proposed legislation proceeds in Nedlac.

3.1.4 Consideration of issues in Nedlac needs to precede finalisation of such matters in Parliament, and there therefore needs to be proper synchronisation of Nedlac and Parliamentary processes.

3.1.5 All Constituencies in Nedlac have the right to table any issue for discussion.

3.1.6 Constituencies may request that an issue be tabled at Nedlac.

3.1.7 The Executive Director needs to inform the Overall Convenors, and Chamber Convenors, of such matters on a routine basis. The Overall Convenors should construct an overall schedule, with time-frames; to deal with these tabled matters, as well as classifying them according to the categories specified below. If the Overall Convenors in a particular instance are unable to revert within agreed timeframes, the Executive Director and the Nedlac Secretariat may recommend an approach for dealing with a matter, in consultation with Chamber Convenors. In such an instance, the Overall Convenors must finalise an approach.

3.1.8 Timeous notice must be given to conclude discussions on issues. Issues should normally be tabled at least three months before sign-off is required, unless it is agreed by the convenors that a special process should be followed in line with the two categories outlined below.

3.1.9 Two categories in terms of which a different process could be followed would be

a) Urgent Issues
b) A Special Category, in terms of which a longer or shorter time frame should be stipulated.

3.1.10 Urgent issues are unforeseen issues which have to be processed urgently as a result of a national political development. These issues can be tabled at least 6 weeks before sign off is required.

3.1.11 Special issues are issues of national political importance, which are either of extreme urgency, requiring even more rapid processing, or because of their importance and complexity, require much longer time periods to adequately process. Where it is determined that an issue falls into this category, it may be expedited in an agreed timeframe which is shorter than six weeks, or an agreed minimum period longer than three months may be stipulated, to ensure adequate time for consideration.  The Overall Convenors will determine from time to time which issues fall into the categories in 3.1.10 and 3.1.11.

3.1.12 The Chamber must agree at the outset whether the issue is being tabled only for consultation, or negotiations or both. The Chamber Convenors must clarify what kind of work is needed on each issue.

3.1.13 The Chamber then agrees on a process and timeframes to expedite the matter.  For example a specific negotiating committee may be established or the Chamber may consider the matter itself.

3.1.14 In cases where the issue falls within the terms of reference of more than one Chamber, a joint negotiation committee or task team may be established.

3.1.15 There may be circumstances where an issue is escalated to the level of a senior Task Team (such as Chamber Convenors or Overall Convenors). In this case, the issue will not be referred back to the Chamber for sign-off, but will be signed off by the senior parties involved

3.2 There may also be instances where the intervention of the relevant Minister/s may be required.  In this case the government Convenor will take the responsibility to facilitate the Minister's attendance.

3.2.1. The purpose of engaging on issues is to reach agreement, and to arrive at a report which minimises, or preferably eliminates areas of disagreement.  All engagements must be geared towards this objective, including ensuring the necessary timeframes and procedures to allow completion of a meaningful negotiation.

3.2.2. The Chamber or Task Team may require technical assistance on issues.  In this case the constituency will be able to bring experts into the negotiating team processes.

3.2.3 Once the process of engagement on the policy has been finalised, a Nedlac report will be prepared for consideration and ratification by the relevant Nedlac structures, namely the Chamber, Manco and EXCO.

3.2.4 In the event that government indicates that giving effect to the policy require legislation, government will table the draft Bill at Nedlac for consideration.  Once the engagement on the draft Bill has been finalised a Nedlac report will be prepared for sign-off by the relevant structures.  

  The Nedlac report, after sign-off by the relevant Nedlac structures, will be sent to the relevant Minister who will in turn table it in parliament.

 Role of Convenors

3.2.5. The Chamber Convenors must agree on the timeframes required to consider the matter and ensure strict adherence thereto.

3.2.6. The Chamber Convenors must be properly mandated.

3.2.7. The Convenors must be responsible for overseeing the work of the Task Teams.

3.2.8. The Chamber Convenors should strive to maximise areas of agreements - they must be prepared to engage on issues beyond positional stances.

 
3.3. Chamber process

3.3.1 The Chamber, where the issue has been tabled agrees on a process and timeframes to consider the matter.  For example a specific negotiating committee may be established or the Chamber may consider the matter itself.

3.3.2 The Chamber must agree at the outset whether the issue is being tabled only for consultation, or negotiations or both. The Chamber Convenors must clarify what kind of work is needed on each issue.

3.3.3 In cases where the issue falls within the terms of reference of more than one Chamber, a joint negotiation committee or Task Team may be established.

3.3.4 There may be circumstances (for example when an issue has a bearing on a package deal such as exemptions for SMMEs and the relation to the LRA) where an issue is escalated to the level of a senior Task Team (such as Chamber Convenors or Overall Convenors). In this case, the issue will not be referred back to the Chamber for sign-off, but will be signed off by the senior parties involved. The Overall Convenors will determine when an issue has to be dealt with in this matter.

3.3.5 There may also be instances where the intervention of the relevant Minister/s may be required.  In this case the government overall Convenor will take the responsibility to facilitate the Minister's attendance.

3.3.6 The Chamber or Task Team may require technical assistance on issues.  In this case the constituency will be able to bring experts into the negotiating team processes.

3.3.7 Once the process of engagement on the policy has been finalised, a Nedlac report will be prepared for ratification by the relevant Nedlac structures.

3.3.8 In the event that government indicates that giving effect to the policy requires legislation, government will table the draft Bill at Nedlac for consideration.  Once the engagement on the draft Bill has been finalised a Nedlac report will be prepared for sign-off by the relevant structures.  

3.3.9 The Nedlac report, after sign-off by the relevant Nedlac structures, will be sent to the Minister of Labour and the relevant Minister who will in turn table it in parliament.
 
3.4 Role of Secretariat
3.4.1 Immediately on receipt of an issue for tabling from any Constituency, the Chamber co-ordinator will determine the timeframe within which sign-off is preferred and alert Chamber Convenors that an issue has been received.
3.4.2 The Chamber co-ordinator, will in consultation with convenors agree on how to handle the matter; for example wait for a Chamber meeting or agree to a process to be followed without waiting for a Chamber meeting.
3.4.3 The Chamber co-ordinator will call for nominations to participate in the consideration of the matter by sending a request for nominations to the Chamber convenor and the constituency office.  In the case where a joint negotiating committee is established the call for nominations will go to both convenors from both Chambers.
3.4.4 The Chamber co-ordinator will prepare a programme of meeting dates for consideration by the first meeting of the negotiating committee, taking into account the timeframes determined in 3.3.1.
3.4.5 In the case where a joint negotiating committee is established, the Programmes Director will assign responsibility for the negotiating committee to one of the Chamber co-ordinators.
3.4.6 The Chamber co-ordinators will prepare agendas for the meetings and prepare draft reports from the discussions of each meeting.  Copies of all correspondence to the representatives on the negotiating committee will be copied to the Chamber convenor.
3.4.7 The Chamber co-ordinator must ensure that once the report has been approved by the Chamber it serves before the next MANCO.  In the event of insufficient time being available reports must be submitted to the Overall Convenors. The Programmes Director, and in their absence, the Executive Director, together with the Chamber Convenors are responsible for monitoring this.
3.4.8 Chamber co-ordinators must specify timeframes within which responses are to be received in all correspondence.

3.5 Role of Representatives
3.5.1. Representatives must have a mandate to participate in the discussions with a view to making progress at each meeting.
3.5.2. Representatives must ensure that they respond to correspondence from the secretariat within the specified timeframes.
3.5.3. Representatives must attend meetings of the negotiating committee.
3.5.4. Representatives must be prepared to engage on issues beyond positional stances.
3.5.5. Representatives must respond to requests from Chamber co-ordinators within the timeframes specified in the correspondence.

3.6 Role of Chamber Convenors
3.6.1 The Chamber Convenors must ensure that their constituency representatives participate in the negotiation committee and that the work of the negotiating committee is completed within the agreed timeframes.

3.6.2 The convenors must strive to maximise areas of agreement and intervene if deadlock is reached in the negotiating committee.

3.6.3 The convenors should appoint convenors for the Task Teams who would be responsible for facilitating the work of the Task Teams.

3.6.4. The convenors must ensure that on conclusion a draft report is considered by the Chamber.

3.6.5. The convenors must respond to requests from Chamber co-ordinators within the timeframes specified in the correspondence.

 3.7 Time Schedules for Action

3.7.1 Agendas for meetings must be distributed to all members at least 2 days before a negotiating committee meeting and 5 working days before a Chamber meeting.

3.7.2 Draft agendas of Chamber meetings must be confirmed with Chamber Convenors prior to distribution.

3.7.3 Action lists flowing from decisions taken at any meeting must be distributed within 1 working day of meeting.

3.7.4 Minutes of any meeting must be distributed within 5 working days of any meeting. If on the deadline date, all constituencies have not responded a second request with a shorter deadline should be sent.

3.7.5 If no response has been received by the second deadline a letter must be sent to the relevant overall or Chamber convenor for action.

4. Production of the Nedlac Report

4.1 The Nedlac report is the official, formal and public report on the consideration of a matter by Nedlac. It is therefore essential that this report be of the highest standard. Where appropriate, agreements should be captured in legal form. The report comprises of the following sections:

4.1.1. Background (a brief description of what the issues are and how it arrived at Nedlac).

4.1.2. The Nedlac Process (step-by-step account of the process, including the terms of reference of the negotiating committee, its meeting times, the members)

a) The agreement
b) Any disagreements
c) Any reservations
d) Legal drafting
e) Conclusion

4.2. The negotiating committee must approve the draft report which is then submitted to the Manco and then the EXCO for ratification.  The report is only officially a Nedlac report once it is ratified by EXCO.

4.3. If, because of time or other constraints, the ratification process cannot be followed, the report may be signed off by Manco, or if the next Manco meeting is too far away, by the Overall Convenors. 

4.4. The Chamber coordinators must alert the Executive Director as early as possible that a special process may be required. The Overall Convenors may only sign off if Manco has delegated this responsibility; or if the matter is so urgent in the view of constituencies or the Executive Directive, and they have referred the report to the Overall Convenors for sign-off.

4.5. If in the opinion of one of the constituencies, the report is unlikely to be accepted at Manco, it may recommend that a further attempt is made to resolve the matter by the Overall Convenors.

Once ratified, the Nedlac report is sent, with a covering letter signed by the Executive Director, to the Minister of Labour and the Minister responsible for, or associated with, the issue that was considered by Nedlac. 

5. Submission of Reports

5.1. Protocol for Tabling Report in Parliament (agreement reached at Nedlac in 1998).

5.1.1. All Nedlac reports are submitted to the Minister of Labour and  the Minister responsible for, or associated  with the issue.
5.1.2. It is the Minister concerned who is responsible for tabling the Nedlac report in Parliament.

5.1.3. However, there may be cases where it is important for the social partners to jointly present the contents of the Nedlac report during the public hearings held by the relevant Portfolio or Select Committee at Parliament.  These cases will tend to be issues where the social partners have reached consensus on substantive issues.

5.1.4. There will be a consideration by the convenors, on a case-by-case basis, of whether or not a joint presentation of the report by the social partners to Parliament is necessary. This consideration will take place at the time that the Nedlac report is being finalised.

5.1.5. Generally, where the Nedlac report deals with an issue that is technical in nature, the report will be submitted to the Minister and presented by the Minister in Parliament.

5.2. Raising Reservations about an Issue in Parliament;

5.2.1 Parties are bound not to re-open discussion in Parliament on any area where agreement was reached in Nedlac.

5.2.2 Parties have the right to raise issues in parliament on which there has been no agreement, or on which a Nedlac agreement was silent.

5.2.3 However if parties raise issues during the parliamentary process on which the Nedlac agreement was silent, or new issues, which go beyond the reservations captured in the Nedlac report, they should inform both Nedlac and the other parties for the record.

5.3. Monitoring the Passage of an Issue through Parliament

5.3.1. The Programmes Director will liaise with the committee clerks and chairpersons of the portfolio and select  committees in order to monitor  the passage of an issue through Parliament.

5.3.2. This liaison will include obtaining information about the dates and  agendas of portfolio or select committee  meetings.

5.3.3. The Programmes Director will also obtain copies of a bill before it is tabled in Parliament and forward copies  thereof to the convenors in order that the  convenors may check the bill's consistency with the agreements  concluded  in Nedlac.

5.4. Government departments are bound, as one of the parties, to accurately reflect the agreements that were reached at Nedlac in the drafts that they put before parliament. Where detailed legal drafting was agreed, this must be submitted as agreed. Where specific legal drafting was not negotiated, the substance and spirit of the Nedlac agreement must be reflected in the legal drafting put before Parliament.

5.5. If the Bill is not consistent with the agreements reached in Nedlac, then a process must be triggered on an urgent basis to address the problem, and Parliament, as well as the Leader of Government Business, should be officially notified by the Executive Director while the mistake is rectified.

6   Monitoring Implementation of this Protocol

6.1 The Leader of Government Business should be requested to nominate someone in his office to co-ordinate with Nedlac in ensuring that the commitments in this protocol are effectively co-ordinated within government. This person should both assist in the tracking of relevant processes within government, and addressing any bottlenecks in this regard. The responsibility to put forward government's views within Nedlac remains, however, with the Government Department responsible for co-ordinating the work of Government with Nedlac.

6.2 A mechanism needs to be agreed in Nedlac to monitor and ensure implementation of the commitments contained in this protocol. As a transitional mechanism, the Task Team responsible for drafting this protocol could act as an advisory committee to assist the Executive Director in this regard.