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ILO technical assistance in a least developed country context: the making of

labour law for the Lesotho labour market

Debbie Collier and Shane Godfrey, University of Cape Town

‘Decent work for a fair globalization requires the ILO’s technical cooperation arm to work with its

constituents to move beyond mere paper references to international labour standards …’1

1. Introduction and background to the paper .................................................................................... 2

2. The ILO as (1) a provider of technical assistance; and (2) a development agency ......................... 5

3. The labour market, and development challenges in Lesotho ........................................................ 7

3.1 Broad overview of challenges ................................................................................................. 7

3.2 Policy response to direct development in Lesotho ................................................................. 9

3.3 Towards a labour market policy............................................................................................ 11

4. Lesotho’s Labour Law Reform Project and the ILO’s technical assistance ................................... 12

4.1 Background information ....................................................................................................... 12

4.2 Areas of law identified for reform ........................................................................................ 13

4.2.1 The proposed broad direction for labour market policy .............................................. 15

4.2.2 Revising the scope of protection provided by the Labour Code ................................... 18

4.2.3 Introducing flexibility into labour standards ................................................................. 21

5 Summary and conclusion .............................................................................................................. 22

5.1 The significant challenges in labour law reform in a least developed country context ....... 22

5.2 Suggestions on facilitating development in a labour law reform context ............................ 22

5.3 Concluding remarks .............................................................................................................. 23

Bibliography .......................................................................................................................................... 24

1 Adele Blackett ‘Beyond standard setting; a study of ILO technical cooperation on regional labour law reform in West and Central Africa’ (2010‐2011) (32) Comparative Labor Law & Policy Journal 443‐492 at 491.


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1. Introductionandbackgroundtothepaper

The Kingdom of Lesotho, a constitutional monarchy, gained independence from Britain in 1966. High

levels of poverty, poor indicators of human resources (measuring education and health) and a high

degree of economic vulnerability mean that Lesotho remains on the UN list as a Least Developed

Country (LDC). Lesotho is economically integrated with, and geographically surrounded by, South

Africa and is vulnerable to regional dynamics: for many years Lesotho’s economy grew largely on the

basis of remittances from South African mines and a disproportionate share of revenue from the

Southern African Customs Union (SACU). However, recent developments in the region have chiselled

away at these sources of income.

Instability in Lesotho is not limited to its economic context: since gaining independence, there have

been four military coups ď état that have involved changes of government and two attempted

coups.2 The most recent illustration of political instability in Lesotho is provided by the events

following the June 2014 change in political allegiance within the ruling coalition government.

Lesotho’s government is formed on a constitutional requirement of a simple majority (50% + 1) of

the seats in parliament; and after the 2012 elections a coalition of three parties3 was necessary to

secure a mere one‐seat majority.4 The coalition held 61 out of 120 seats in the National Assembly,5

and in June 2014 one of three parties (the LDC) entered into an alliance with a significant minority

party.6 This resulted in the prime minister exercising his authority to prorogate Parliament in June

2014, amid fears of a coup; which was followed by an attempted coup, allegedly staged by the

Lesotho Defence Force in August 2014 and, facilitated through SADC mediation, early elections in

February 2015. Caution has been expressed regarding the new administration: for the ISS ‘it is

unlikely that the outcome of the election – a coalition led by the Democratic Congress – will solve

the cyclical and structural shortcomings of the country’s politics. Parties split and splinter; violence

breaks out both before and after polls; consensus is non‐existent, even among coalition partners,

and manoeuvring for position trumps governing for the good of the country.’7

In so far as its labour market is concerned, Lesotho has a small, relatively unskilled, workforce (of

around 608 327 people) and is characterised by high levels of unemployment and informal work;

much of it in subsistence agriculture. It is reported that, in 2008, almost 72% of the employed

population was informally employed: of these, 51% in so‐called formal enterprises and 49% in the

informal sector. Potential generators of growth include expanded diamond mining and major water

projects and, in manufacturing, in the (foreign‐owned) clothing and textile sector, which is

dependent on AGOA trade‐preferences.

Lesotho’s development needs are complex and the prevailing development strategies prioritise

‘deeper investment climate reforms’ and the Lesotho Decent Work Country Programmes (DWCPs)

2 See Dimpho Motsamai, Southern Africa Report : Elections in a time of instability – Challenges for Lesotho beyond the 2015 poll (April 2015) Issue 3, Institute for Security Studies for historical details in this regard. 3 The All Basotho Convention (ABC), Lesotho Congress for Democracy (LCD) and Basotho National Party (BNP). 4 Motsamai (note 2) at p. 5. The ISS comments that ‘[t]he coalition faced the challenge of governing with a one‐seat majority. It was difficult to pass legislation requiring a two‐thirds majority, as they would need to lobby the opposition for at least 19 votes.’ 5 Motsamai (note 2) at p. 5. 6 The Democratic Congress (DC). 7 Motsamai (note 2) at p. 1.


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flesh out areas of priority in labour market regulation, which are discussed in the text below. Lesotho

has ratified 23 ILO Conventions, including all eight fundamental conventions dealing with core rights

at work, and over the years the ILO has provided critical support to the constituents in Lesotho to

facilitate the development of labour market regulation consistent with ratified conventions.

In 2013 the ILO Decent Work Country Team (Eastern & Southern Africa) was approached by the

Minister of Labour and Employment in Lesotho (MOLE) for assistance with a labour law review

process which had stalled in 2006, resulting in the failure to present a draft amendment bill to

parliament. In response the ILO, in 2014, facilitated numerous labour law reform initiatives which we

were privileged to be involved in. These include consultations with constituents, the drafting of an

issues paper, and stakeholder workshops around key areas of concern. While there is some

evidence of ongoing work on law reform in Lesotho, the process was somewhat stalled by political

developments in the country. In light of this, our paper is perhaps a little premature as further ILO

engagement and reform developments are likely to materialise in the near future, and therefore our

assessment in this paper should be viewed accordingly: as a limited account of our experience to

date in the law making process in Lesotho.

There are a number of factors that stood out for us as potential barriers or constraints to the

adoption of pro‐development labour law reform in Lesotho – we have categorised these as (1)

stakeholder resource and capacity constraints; (2) the host country political and policy context; (3) a

‘one‐size‐fits‐all’ (or ‘once‐off’) approach to labour standards; and (4) the negotiated boundaries for

external consultants. The first two of these constraints are internal to Lesotho, the host country, and

the third and fourth are external in the sense that they are constraints which attach to the ILO as a

provider of technical assistance and as a development agency together with its external consultants.

These constraints are not peculiar to the process in Lesotho and similar observations are evident in

prior literature on ILO technical assistance.8

The host country political and policy context and the stakeholder resource and capacity constraints9

in a developing country context are significant: in Lesotho this includes, politically, a fragile

government which resulted in the attempted coup in 2014 followed by the dissolving of parliament

and early elections. Political will and commitment to reform still remain a concern,10 alongside an

abundance of policies intended to promote development in Lesotho, but which, in some respects

lack coherence, and have yet to gain any real traction. Resource and capacity constraints are those

which one could typically anticipate in a developing country context, and relate not only to state

8 See for example Adele Blackett ‘Beyond standard setting; a study of ILO technical cooperation on regional labour law reform in West and Central Africa’ (2010‐2011) (32) Comparative Labor Law & Policy Journal 443‐492 and Arturo Bronstein ‘The role of the International Labour Office in the framing of national labor law’ (2004‐2005) (26) Comparative Labor law & Policy Journal 339‐369. 9 In a report on the ILO’s Improving Labour Systems in Southern Africa (ILSSA) project implemented in six SADC countries, including Lesotho, the authors indicate that “[a]ll social partners suffer from major continuing deficits in capacity. These include lack of equipment, inability to secure and/or to provide financial support (especially in the case of governments), and low levels of membership and funding for employer and worker organisations.” Centre for Employment & Labour Relations Law, University of Melbourne, Mid‐term Evaluation: Final Report October 2006, p. 4. Available at http://www.dol.gov/ilab/projects/summaries/MIDTERM%20EVALUATION%20FINAL%20REPORT.pdf (accessed 6 May 2015). 10 Motsamai (note 2) at p. 1 note that ‘it will take political commitment, currently lacking, to set Lesotho on a sustainable political and developmental path.’


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capacity but also to general deficiencies around trying to ‘ensure meaningful participation by

empowered tripartite actors’.11 Lack of political will, within the upper echelons of government, in

addition to instability, presents a challenge to progressive labour law reform.12

Outside of the host country, and within the context of the ILO’s technical assistance, we found it a

challenge to conceptualise ways of accommodating Lesotho’s unique development needs within,

what we would, somewhat tentatively, call a ’one‐size‐fits‐all’ / ‘once‐off’ approach to labour

standards.13 We felt some dissonance between labour standards and development needs, where,

paradoxically, the rigid adherence to standards may, in our view, have the result of undermining

human development. Labour reform efforts, we believe, should navigate carefully to a space in

which the adoption of labour standards does not compromise national development.14

As part of its technical assistance programmes the ILO engages the services of external consultants

and, in relation to our experiences in Lesotho, the negotiated boundaries for external consultants

present opportunities for further reflection. External consultants, as it has been noted, come with

their own bias and knowledge and expertise in the dynamics of a particular labour market and

should ideally work closely with one or two counterparts from the host country to ensure

11 Blackett (n 8) 477. In this regard, the Lesotho Decent Work Country Programme Phase II (2012 to 2017), at p. 21, identifies some of the challenges in the implementation of the first phase of the Lesotho DWCP, which would impact also on law reform efforts, as being ‘the lack of an organizational arrangement or structure [which] negatively impacted on effective implementation and monitoring of the country programme, … Lack of ownership of the DWCP because of what was perceived as an ineffective consultation process, … [and] [t]he need for training for national partners … and [r]esource mobilization.’ 12 Our experience is that there is commitment to reform within the Ministry of Labour and Employment. 13 In terms of a ‘once‐off’ approach to labour standards: developing countries may ratify Conventions and formalise a high level of standards which, given the state of development within the country, the standard is unattainable (although progressively realisable) and is more aspirational than realistically achievable. High levels of non‐compliance (and uncertainty) therefore result. Perhaps related to this is what Bronstein calls an ILO‐labelled opinion, which indicates that the ILO will revised a consultant’s opinion in order that the advice is consistent with the ILO approach to labour law. Bronstein, Arturo ‘The role of the International Labour Office in the framing of national labor law’ (2004‐2005) (26) Comp. Lab. L. & Pol’y 339 – 369 at p. 359. 14 Lesotho, like all least development countries, has a wide range of development needs and faces many constraints in how it meets these needs. This requires, on the one hand, a requirement to prioritise some needs, and on the other hand, it means a complex balancing of demands and interests. In Lesotho, however, underpinning all the development challenges is one core problem: the economy is not creating enough jobs. The difficult transition the economy is making and the threats it faces is seeing large numbers of people being dislodged from subsistence agriculture into the labour market, but without many of these people being taken up into employment in the very slowly expanding manufacturing and service sectors. The result is persistent high unemployment and growing informality. Given the scale of this problem and its deep structural nature one clearly cannot rely solely on economic growth for the solution. While there must be growth, and if possible increased growth, there must also be significant job creation and redistribution of the wealth being generated. One way the latter can be achieved is to ensure that jobs are ‘decent’. Labour regulation can appear to make jobs decent by providing a set of appropriate standards, but unless all employers are compliant and all jobs are regulated then in reality the jobs will not be ‘decent’. This scenario leaves it all to enforcement to ensure rising compliance. An alternative approach is to see the setting of labour standards as a process that will involve a ratcheting up of the standards as growth takes place, effectively balancing and integrating the creation of jobs with the quality of jobs. Such an approach arguably allows for better complementarity between labour market regulation and other aspects of development policy, which acknowledges that regulated employment is both a means and an end. The problem with this approach is that it takes a bet on the politics of the country, i.e. that governments will over time ensure that standards are ratcheted up as growth takes place.


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meaningful engagement in the host country.15 On reflection, this is an area which may have been

improved upon. An interesting dynamic in the Lesotho law reform process is that it was made clear,

early on in the project, that the drafting of the legislation would be done by an internal drafter and

not by the consultant and that the consultant’s role would be limited to the drafting of an Issues

Paper and a technical memorandum to the new draft legislation. Within this context, we stressed

the need for national ownership of the law reform project (a message which was repeated

throughout the consultation process and at the national workshop to discuss the Issues Paper). A

tripartite national task team took ownership of the process and we are in communication with this

task team; as consultants we reiterated our role being to provide technical expertise, primarily from

a regional perspective, on the areas identified for reform.

Our discussions around these four ‘constraints’ of the law making process in Lesotho are

incorporated into the three main parts of our paper. In the first part, by way of background to ILO

engagement in member states’ regulatory processes, we describe the role of the ILO as a provider of

technical assistance and as a development agency. In the second part we provide an overview of the

labour market, economic context and social challenges in Lesotho which provides content to the

development context in Lesotho; and in the final part we provide some analysis of Lesotho’s recent

labour law reform project and both our and the ILO’s technical assistance in the project. The paper

concludes with some tentative remarks for pro‐development technical assistance in the developing

country context.

2. TheILOas(1)aprovideroftechnicalassistance;and(2)adevelopmentagency

As Bronstein points out, providing assistance to member states is an ILO obligation enshrined in the

Constitution.16 Article 10(2)(b) of the ILO Constitution, adopted by the Peace Conference in April

1919, reads as follows:

Subject to such directions as the Governing Body may give, the [International Labour Office] shall … (b) accord to

governments at their request all appropriate assistance within its power in connection with the framing of laws

and regulations on the basis of the decisions of the Conference and the improvement of administrative practices

and systems of inspection …

Bronstein provides an account of the first ever technical cooperation ‘mission’ carried out by the ILO

in 1936,17 but goes on to indicate that ‘the ILO technical cooperation program with regard to the

framing of labor law in member States actually took off after the end of World War II. … ILO

involvement in the elaboration of the labor law in member States was closely linked to the

decolonization process, which started in Asia soon after the end of WWII and in Africa since the

1950s, but more especially in the 1960s’.18

15 See Bronstein (n 13). 16 Bronstein, Arturo ‘The role of the International Labour Office in the framing of national labor law’ (2004‐2005) (26) Comp. Lab. L. & Pol’y 339 – 369 at 339. 17 The first request for assistance came in 1936 from Venezuela, a country recovering from the dictatorship of General Gómez, seeking to modernise its institutions and which sought ILO assistance to review of its labour law. Bronstein (note 16) at p. 340. 18 Bronstein supra.


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It is estimated that, on average, ‘the Office receives some thirty requests per year, bearing on

questions relating to labor law. … in many cases they call for the Office undertaking comprehensive

assessment of existing law, or if the case may be, in‐depth study of draft legislation that a member is

considering to adopt.’19 In terms of the internal process: ‘teamwork is a well‐established practice in

the Office. … [and] a legislative opinion required by a member … normally has been based on

contributions provided by different technical units in the various fields for which the Office has

competence.’20

Bronstein is alive to the local context of members and suggests that advice from the Office, if it

merely amounts to an assessment of compliance with an ILO Convention will be of ‘short range’21 as

it will not address implementation, and he goes on to state that ‘[t]o really be useful in such cases,

the Office should propose texts adapted to national realities, which would provide the measures

enabling a member to implement a convention it has ratified or plans to ratify.’22 The goal of the

Office is to propose draft legislation ‘that would be adapted to the country’s social, economic,

political and cultural environment, even if it does not meet the expectations of everybody’.23

There are a number of methods utilised by the Office in providing technical assistance, including

commenting on draft legislation that has been prepared by the host country; the sending of ILO

officials to the host country, if requested by the host country, to present and discuss these

comments and proposal;24 and another method, where there is limited local expertise, is to send an

external consultant to work with a national counterpart in the drafting process. In the case of the

latter, what might arise is the situation where the consultant’s opinion differs from that of the

Office.25 Where this is the case, and the consultant has not provided an ‘ILO‐labelled opinion’, the

Office would revise the consultant’s text.26 Where a consultant is used, it is also important that a

good working relationship be established between the consultant and a counterpart27 or

counterparts in the host country – Bronstein talks about the importance of generating the host

counterpart’s ownership in the labour law reform28 – something which we took seriously and

thought was important in the Lesotho context, particularly in light of our assessment of the reasons

why the Amendment Bill of 2006 had not been presented to Parliament.

While the ILO’s main concern for many years was standard setting, it has always to some extent

played a role as a development agency and, according to Standing, this function increased in

importance during the 1960s.29 This is arguably reflected in its concern with ‘basic needs’ and with

19 Bronstein (note 16) at p. 343. 20 Bronstein (note 16) at p. 345. 21 Bronstein (note 16) at p. 351. 22 Bronstein (note 16) at p. 352. 23 Bronstein (note 16) at p. 356. 24 Interestingly, Bronstein talks about proposals at this stage being withdrawn if it becomes clear that implementation would run into difficulties or ‘lead to surrealistic laws, more adapted to give pleasure to international experts and bureaucrats than to render service to their true recipients.’ Bronstein (note 16) at p. 358. 25 Bronstein (note 16) at p. 359. 26 Bronstein (note 16) at p. 359. 27 In English speaking countries such as Lesotho, Bronstein suggests the Labour Commission or his or her deputy as the host country counterpart. 28 Supra. 29 Standing, Guy ‘The ILO: An Agency for Globalisation?’ (2008) 39 Development and Change 355 – 384 at 359.


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the ‘informal sector’ that emerged late in that decade. At the same time the ILO expanded its

function in respect of technical cooperation. In the 1990s the concern within the ILO with

development picked up with the decentralisation of its structure by creating regional multi‐

disciplinary teams in a range of developing countries. The growing interest in development was

recognised in the decent work concept, launched in 1999, which was an attempt by the ILO to

reposition itself vis a vis the Washington Consensus institutions. While many have complained of the

‘vagueness’ of the concept, it is precisely this quality which arguably allows a certain flexibility with

regard to how standards are prioritised and introduced in developing countries. It is no surprise

therefore that Decent Work Country Programmes have been introduced exclusively in developing

countries and the transition economies of eastern Europe.30

The sections below consist firstly, of a discussion of the development context and labour market of

Lesotho and thereafter a more detailed account of the law reform process currently underway in

Lesotho.

3. Thelabourmarket,anddevelopmentchallengesinLesotho

3.1 Broadoverviewofchallenges

Lesotho is a small, poor, least‐developed country in Southern Africa with an open economy. The

economy has grown steadily over the last 30 years ‐ the average real GDP growth rate for the period

from 1982/3 to 2010/11 was 4% ‐ but it is currently undergoing restructuring and faces significant

challenges. The aim of policy‐makers is to shift the weight of the economy from the primary to the

secondary sector. The latter currently contributes 40% to GDP but the intention is that this will rise

in 55% in the short‐term and 70% in the medium‐term. The will produce a much more diversified

economy.

In the first part of the last 30 years the main drivers of growth were agriculture, diamond mining,

remittances from migrant mineworkers, and Southern African Customs Union (SACU) revenues.31 All

these drivers of growth, with the exception of diamond mining, have declined steeply in importance

in recent years.

In terms of livelihoods agriculture is the most important sector in Lesotho. About 40% of the

economically active population (or 69% of the labour force) is engaged in subsistence agriculture.

The agricultural sector, however, is in decline: in 1966 it contributed about 50% to GDP, but this

dropped to 20% by 2000, and it currently contributes only 8% to the GDP. This is only partly a

relative decline. The sector is fragile: only 9% of the land is arable, soil erosion is prevalent,

overstocking is a problem, and the sector is susceptible to natural disasters such as droughts and

floods. The country is no longer food secure and imports much of the food it requires from South

Africa.

A second major driver of growth in the past was remittances from men that migrated to work on

South African mines. In the 1980s there were 120 000 Basotho employed in the South African mining

30 Standing (n 29) at 359, 362. 31 Lesotho is a member of the Southern African Customs Union (SACU), together with South Africa, Namibia, Botswana and Swaziland.


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sector but by 2012 this had dropped to 37 051.32 This decline translates, between 1992 and 2000, in

remittances dropping from a 40% contribution to GDP to a 30% contribution. These remittances

were particularly important for injecting cash into the rural economy and tiding subsistence farmers

over bad years.

Until fairly recently Lesotho and most of the other members of SACU shared disproportionately in

SACU revenue (South Africa effectively subsidised their development by taking a disproportionately

smaller share of the revenues). This share of revenue made up a very large proportion of total

income: in 2005 approximately 50% of Lesotho government revenue came from SACU. However,

new agreements about the formula for sharing revenues between the SACU members has seen

Lesotho’s share decline by an estimated 30% since 2005.

Currently Lesotho has two main growth generators in the short‐term: expanded diamond mining

and major water projects (and new investments in mining and water harvesting infrastructure have

led to a boom in the construction sector, albeit temporary). Diamond mining and water harvesting

are however highly capital intensive and therefore neither will impact significantly on employment.

Growth in the manufacturing sector has been driven by a rapid expansion of the textile and clothing

sector over the last 15 years. It earns both foreign exchange and creates much needed jobs: it

currently comprises about 50% of all formal employment and 80% of employment in the

manufacturing sector. Furthermore, over 80% of these jobs are filled by women. But the sector is

entirely foreign‐owned (Taiwanese and South African direct investment) and is to a large extent

dependent on the continuation of the African Growth Opportunity Act (AGOA). AGOA was due to

end in September 2015, which would have been catastrophic for the Lesotho economy, however a

10‐year extension has been granted by the US Congress. Even so, the garment sector in Lesotho is

struggling: employment is down to about 37 000 workers from a peak of 54 000 in 2004.

The main problem confronting Lesotho is that the economy is not generating enough jobs.

Employment growth has lagged GDP growth, and formal employment growth has lagged the growth

of the labour force as a whole. This means that the disruption caused by the declining agricultural

sector and the attempt to shift growth to manufacturing and services is resulting in high

unemployment and a growing informal economy. The problem is exacerbated by the fact that the

main drivers of growth have either created few jobs (the Lesotho Highlands Water Project and

diamond mines) or few local skills and no backward or forward linkages (the garment sector).

Poverty and unemployment are therefore very high and there is extreme income inequality.

In 2003, 56.6% of Lesotho’s population was below the poverty line, 58% in rural areas and 40% in

urban areas.33 The unemployment rate in 2003 was 28.7, which had risen to 29.4 in 2009. Of those

employed in 2008, 62% were informally employed (378 000) and only 38% were formally employed

(230 000). Of the informally employed, 51% was in what are classified as formal enterprises. So, 49%

would have been employed in informal enterprises, or what is termed the informal sector. Most of

32 The drop has been driven by the decline in the South African mining sector. Reduced demand for migrant labour will likely continue because of a policy of the South African mines to stop employing novice mineworkers from outside South Africa and because recent labour relations instability on the South African mines will probably lead to retrenchments. 33 Although very high this is a decline from 66.6% (year unknown). If one uses US$ 1 per day the poverty rate declines to 37%.


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the latter was in the form of household activities such as subsistence agriculture, where payment is

mainly in kind. Subsistence agriculture, informal employment and high unemployment account for a

Gini coefficient of 57% in 1994/5, although subsequent growth resulted in some redistribution

because by 2002/3 the coefficient had declined to 53%.

The population of Lesotho is young (58% is under 19 years of age) and youth unemployment is

particularly high: 47% (compared to overall employment of 29.4% in 2009). This high youth

unemployment is driving urbanisation as the young move to towns to look for work. Although

Lesotho has a high literacy rate (free primary education was introduced in 2000) most youth do not

have employable skills, which is exacerbated by a lack of technical and vocational training facilities

for those youth who drop out of school (rural youth are far more likely to drop out of school before

completing primary education than urban youth).34

3.2 PolicyresponsetodirectdevelopmentinLesotho

Lesotho’s Vision 2020 sets out its development goals in broad terms, with the National Strategic

Development Plan 2012/13 – 2016/17 (NSDP) providing the detail.35 The NSDP is broadly neo‐liberal,

prioritising economic growth, which will be driven by the private sector and export‐led, as the

primary way to address the problems of poverty, inequality, unemployment. The NSDP, however,

acknowledges that moderate economic growth has not resulted in significant job creation and

poverty reduction – so policy has to give more attention to these issues in order to stimulate job‐rich

economic growth.

The NSDP identifies three priority sectors for growth and one other ‘growth generator’, namely what

it terms “deeper investment climate reforms”. The three sectors are:

Agriculture36

Manufacturing

Tourism

It is envisaged that growth in these sectors will stimulate demand in the ‘follower’ sectors: transport,

telecoms, construction, and business services.

The NSDP identifies 6 strategic goals, the first four of which relate to the economy and labour

market:

Pursue high shared and employment creating economic growth

Develop key infrastructure

34 Considerable investment has been made in primary education: free primary education was introduced in 2000, with the result that the school enrolment rate rose by almost 100 000 between 1999 and 2006. But there is a high dropout rate, so the investment has not translated into large numbers completing secondary schooling. However, the limited capacity of vocational, technical and higher learning institutions means that they cannot accommodate those young people completing secondary school. Furthermore, it seems that the labour market cannot absorb those that complete tertiary education and training in these institutions. 35 The Lesotho economy was set on a market‐oriented growth path by a structural adjustment programme (SAP) initiated with the support of the International Monetary Fund in 1988. Following the SAP a Poverty Reduction Strategy drove the development agenda, which was succeeded by an Interim National Development Framework, before the current National Strategic Development Plan was formulated and implemented. 36 We assume this means commercial agriculture.


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Enhance the skills base, technology adoption and a foundation for innovation

Improve health, combat HIV and AIDS and reduce vulnerability

Reverse environmental degradation and adapt to climate change

Promote peace, democratic governance

The Lesotho United Nations Development Assistance Plan (LUNDAP) is closely integrated with the

NSDP, and has seven clusters that overlap with or complement the strategic goals of the NSDP.

Lesotho can be characterised as a model member of the ILO. It has ratified 23 ILO conventions,

including all eight fundamental conventions dealing with core rights at work, and is already on its

second Decent Work Country Programme (DWCP) (the first was for the period 2006 to 2009, and the

current programme is for 2012 to 2017). The DWCP fills a gap left by the NSDP and effectively

sketches out a labour market policy that more or less complements the NSDP.

The first Decent Work Country Programme reveals that Lesotho has received significant

international assistance in the past, including ILO and UNDP programmes to strengthen the factory

inspectorate with a focus on the OSH unit (1994‐1997), a project to improve national employment

services through employment policy formulation and labour market analysis, a project to promote

SMEs that focused on the national SME policy and strategy formulation (1994‐1997), and a project

to promote vocational education and training (1995‐1997).

The first DWCP identified two priorities: increased employment creation for poverty alleviation, and

improved social security coverage and effectiveness. Six country outcomes were indicated as flowing

from the achievement of these two priorities. However, it appears that the DWCP was not very

successful. Evaluation of the programme found that a “lack of an organisational arrangement or

structure negatively impacted on effective implementation and monitoring”, that there was a “lack

of ownership of the DWCP because of what was perceived as an ineffective consultation process”,

and that there was a “need for training of the national partners on the concept, process and content

of the DWCP”.

The second DWCP expanded its scope to three priorities: employment creation for all (particularly

the youth, women, and retrenched workers); social protection (with a focus on social security,

including improved conditions of work and occupational safety and health, and strengthening of

workplace responses to the HIV/AIDS epidemic); and, tripartism and social dialogue. The DWCP

identifies eleven ‘key result areas’ in respect of the above priorities:

Employment creation, particularly youth employment, is mainstreamed in national

development and sectoral planning frameworks

Increased number of sustainable MSMEs that create decent jobs, particularly for young

women and men, including displaced textile and mine workers

Improved competitiveness and productivity in the textile and garment sector

More people, including migrant workers, women, children and elderly persons, have access

to adequate and better‐managed social security benefits

Government and social partners respond more effectively to the HIV/AIDS epidemic in the

workplace

Workers and enterprises benefit from improved safety and health conditions at the

workplace


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Government, social partners and civil society have improved capacity to effectively eliminate

child labour, particularly the worst forms in Lesotho

Tripartism and social dialogue mechanisms are strengthened

Improved capacity of social partners to effectively participate in social dialogue mechanisms

Workers and enterprises benefit from good governance of the labour market and effective

labour administration services

Employers and workers have strong, independent and representative organisations

While the intentions of the DWCP are sound, the lack of capacity of the Lesotho government

suggests that the above is little more than a shopping‐list of outcomes based on wishful thinking. For

instance, it is noted that the country still did not have a comprehensive contributory‐based social

insurance scheme covering workers and their dependants. The initiatives to establish a scheme had

begun ten years before but had made little progress and there appeared to be a lack of government

will to finalise the policy and legislation for the National Social Security Scheme. It was noted further

that as a result “the bulk of the workforce, including those working in formal waged employment,

notably and foremost in MSMEs, are not covered by a contributory retirement scheme.” It proposed

that a general and comprehensive social security law would be developed that would provide legal

provisions for each social risk category, i.e. old age,37 workplace compensation, and maternity.

While the first DWCP noted an earlier UNDP‐funded initiative regarding technical and vocational

training, the subsequent DWCPs have not given much attention to this area other than with respect

to SMMEs and the textile and garment sector. This is arguably too narrow a focus and tends to side‐

line the critical issue of skills development as central to labour market policy. However, Lesotho’s

technical, vocational education and training (TVET) policy recommends the establishment of the

semi‐autonomous Lesotho Skills Agency (LSA) which will include Sector Skills Committees (SSC) the

will focus on the skills requirements of particular sectors. This approach was piloted in the garment

sector with assistance from the World Bank’s Private Sector Competitiveness and Economic

Diversification Project, which established two industry‐led Skills Development Centres in Maseru and

Maputsoe to address the need for improved skills in the sector. However, these centres became

defunct when the World Bank funding ran out, although there is currently an effort being made to

revive them.

3.3 Towardsalabourmarketpolicy

Labour market policy in Lesotho needs to have a strong development orientation, i.e. it needs to be

integrated with the NSDP and address the issues of economic growth, poverty, unemployment and

inequality. This suggests a nuanced policy that, first, takes account of the regional and sectoral

contours of the country’s economy, second, responds to and complements the transition the

economy is making from agriculture to secondary and tertiary sectors, and third, that the policy

addresses key labour market problems and development vulnerabilities. This includes taking account

of the fragility of the agricultural sector, the steep decline in jobs in South African mines, the risk to

the textile and garment sector posed by the ending of AGOA, and the urgent need to attract foreign

investment and better utilise domestic savings. In short, the priority for Lesotho is support for better

37 An old‐age pension was introduced in 2005 for citizens over 70 years of age. It has probably had some impact on poverty.


12.

livelihoods in the subsistence agriculture sector, the transition of informal jobs to formal jobs, and

the creation of many more jobs.

The above outline of a labour market policy provides some context and direction for approaching

amendments to the Labour Code. Before getting into the detail of the amendments a broad

direction for labour market policy should be agreed that takes account of regional and sectoral

development prospects. We are proposing a layered approach that sees the extension of social

security as the foundation, health and safety and decent conditions of work as the second layer,

active labour market policy in the form of an enhanced skills development system as the third layer,

and flexible wage setting and collective bargaining as the fourth layer. Cutting across these layers is

massively improved enforcement. The above should be negotiated and monitored in tripartite

structures that take account of labour market as well as broader socio‐economic constraints and

objectives.

4. Lesotho’sLabourLawReformProjectandtheILO’stechnicalassistance

4.1 Backgroundinformation

Lesotho’s labour market is regulated by the Labour Code Order, 1992,38 as amended from time to

time.39 The ILO has been providing technical assistance to Lesotho over an extended period of

time;40 part of this assistance being an attempt to consolidate and amend the Code. In a 2005

assessment of its Improving Labour Systems in Southern Africa (ILSSA) project, law reform in Lesotho

was reported on as follows:

38 Labour Code Order 1992 (Order No. 24 of 1992) which codified and amended the law regulating employment in Lesotho. The Code regulates the offices of the Labour Commissioner, Labour Officers and the Registrar of Trade Unions and Employers’ Organisations. It establishes the Labour Court and the Registrar of the Court and the National Advisory Bodies. The Code provides for wage‐fixing machinery, contracts of employment, termination, dismissal and severance pay as well as the protection of wages. Health, safety and welfare at work are regulated in the Code, as are weekly rest, hours of work, holidays with pay, educational leave and sick leave. The employment of women, young persons and children is regulated in the Code, the use of certain labour agents and the contracts of foreign service and employment of non‐nations is covered in the Code. Provision is made for the registration of Trade Union organisations and employers’ organisations and for their rights and liabilities. The Code establishes a number of unfair labour practices and makes provision for the settlement of trade disputes through conciliation and arbitration. Strikes, lock‐outs and essential services as well as picketing and intimidation are regulated. 39 Significant amendments to the Code include:

Labour Code (Amendment) Act 22 of 1995;

Labour Code (Amendment) Act 9 of 1997;

Labour Code (Amendment) Act No. 3 of 2000 which provided the legal scaffolding for the Industrial Relations Council (IRC) and the Directorate of Dispute Prevention and Resolution (DDPR) to provide for the conciliation and arbitration of disputes, and to establish a Labour Appeal Court; and

Labour Code (Amendment) Act 5 of 2006, regulating matters around HIV/Aids in the workplace. 40 The ILSSA Report (note 9 at p. 8) documents the ILOs involvement in Lesotho (and other Southern African countries) since 2001. In October 2001 a three year USDOL project was implemented by the ILO on Strengthening Labour Administration in Southern Africa (SLASA) covering Botswana, Lesotho, Malawi and Zambia with the aim of ‘capacity‐building in labour ministers, especially with respect to labour administration and inspection, strengthening of labour dispute resolution institutions, and capacity‐building for workers’ and employers’ organisation. The project funding was extended and in 2004 SLASA was subsumed into ILSSA which primarily aimed to increase compliance with national labour laws and improve labour‐management relations. All ILSSA project activities in the region were to be completed by April 2008.


13.

Review of Labor Code in Lesotho – The project provided an international expert’s

report in 2004, and subsequently facilitated a tripartite process for redrafting the

Labour Code. As of August 2006 the final draft amendments had been submitted to

ILO HQ for comments and analysis.41

These draft amendments however were subsequently not presented to Parliament in Lesotho and

therefore were not passed into law. Recently Lesotho has shown an interest in rectifying this state of

affairs and in August 2013 the Director of the ILO Decent Work Country Team (Eastern and Southern

Africa) received a request from Lesotho’s Ministry of Labour and Employment (MOLE) to assist with

the finalisation of the labour law review project that had stalled in 2006. What emerged from the

discussions is that the 2006 draft amendment bill was viewed by the Parliamentary Counsel (who are

responsible for the final preparation of legislation before presenting the legislation to Parliament) as

being ‘too bulky’. The position taken by Parliamentary Counsel is that the existing labour legislation

should be repealed and codified into a single piece of legislation, and that a narrative should be

provided to explain the provisions of the legislation. The ILO was requested to provide technical

assistance and a task team was established in Lesotho.42 As part of its technical assistance, the ILO

utilised our services to assist in the process. The expected outcomes of the consultancy were an

issues paper;43 a first draft of the revised Labour Code;44 and a Technical Memorandum on the

revised Labour Code. The brief was ultimately recast; it was made clear in discussions that the draft

legislation was not to be prepared by the consultant, and the assistance being requested was in the

preparation of an Issues Paper and in the drafting of instructions (a narrative) for the revised Labour

Code to guide the drafting process.

A consultation process – involving separate workshops with government and the social partners ‐

preceded the drafting of the Issues Paper, which identified the key areas for reform arising out of

the consultations.

4.2 Areasoflawidentifiedforreform

There was a consensus that emerged during the workshop around the broad themes for reform

although more contentious issues – such as flexible working conditions, the framework for collective

bargaining and the regulation of labour brokers ‐ remain contested. All parties agreed that the

objective of the current law reform project should extend beyond merely ensuring that the

provisions in the Draft Amendment Bill, 2006 get passed by Parliament. There have been significant

developments both within Lesotho and globally subsequent to the 2006 project and the parties

welcomed the opportunity to identify additional areas for reform.

41 Note 40 at p. 12. 42 The Task Team includes Lesotho’s Labour Commissioner, the MOLE legal officers, representatives of the social partners, the DDPR and the Occupational Health and Safety Inspector and a representative of Parliamentary Counsel. 43 A draft Issues Paper was presented to stakeholders in Lesotho at a workshop in Maseru on 30 June 2014 and, in response to feedback received both from the ILO and from participants at the June workshop, a Supplement to the Issues Paper was prepared for the National Task Team. 44 At the first meeting between the consultant and MOLE it was made clear that the consultant would not attend to any drafting of the Code but would provide guidance to the National Task Team in this regard, and would provide a technical memorandum to guide the drafting of the Code. After requests for clarification, it was established that a legal drafter from Parliamentary Counsel would be responsible for drafting of the Code.


14.

The issues which emerged out of the workshops with the three stakeholders were categorised and

documented in the Issues Paper45 as follows:

The need for agreement on a broad direction for labour market policy46

A need to revise the scope of protection provided by the Labour Code47

Revising the regulatory framework for key labour market institutions48

The possibility of regulating standards through Regulations and Codes of Good

Practice49

Addressing deficits in the regulatory framework for the protection of children50

Revising aspects of the regulatory framework for collective bargaining51

Introducing flexibility into labour standards52

Concerns around the regulation of occupational health and safety53

Skills development54

Miscellaneous provisions that require amendment55

45 The Issues Paper (June 2014) was expanded upon in a Supplement to the Issues Paper (July 2014) and additional notes were provided to the Task Team to assist in their deliberations on the issues. More specifically, we provided the National Task Team with Notes on regulating the informal sector and who is an employee (July 2014); Notes on flexible working conditions (September 2014); and Notes on collective bargaining and organisational rights (November 2014), As part of the ILO intervention in Lesotho, a workshop on flexible working conditions and collective bargaining and organisational rights was hosted in November 2014. 46 See discussion below. 47 See discussion below. 48 Numerous concerns were raised around the current structure and functioning of the key labour market institutions, most of which were established in Part III of the Labour Code which provides the regulatory framework for the Minister, Labour Commissioner, Labour Officers and Registrar of Trade Unions and Employers’ Organisation, the National Employment Service, the Labour Court and the National Advisory Bodies (NACOLA and NACOSH). 49 The possibility of making better use of Regulations and Codes of Good Practice as mechanisms for promoting and providing clarity on labour standards was discussed and it was proposed that the revised Labour Code should establish a framework for this. 50 The 2006 Amendments, which did not pass, make provision for significant revisions to the current regulatory framework. These amendments need to be implemented. 51 There is a concern regarding certain limitations on the freedom of association and collective bargaining rights of ‘public officers’, which are contrary to the Freedom of Association and Protection of the Right to Organise Convention, 87 (1948) and the Right to Organise and Collective Bargaining Convention 98 (1949). In particular there are concerns that the Public Service Act provides that ‘public officers shall not engage in a strike’ and certain limitations on public officers’ freedom of association and the right to form a trade union. Other freedom of association and collective bargaining concerns related to teachers and minority trade unions; as well as mechanisms for registering collective agreements; clarity on essential service and on agency shop agreements as well as the possibility of developing the mechanisms for bargaining at sectoral level. 52 See the discussion below. 53 The possibility of separating out OSH legislation from the core Labour Code was raised, although caution was expressed in view of the slow process of getting legislation through Parliament. The 2006 Amendment Bill does provide for additional regulation of OSH in the workplace and the enactment of these provisions will address many of the current concerns. 54 The possibility for an enhanced regulatory framework for skills development was discussed and proposals were suggested in this regard, including the appointment of a Director for Skills Development, the establishment of a National Skills Development Council and general and sector specific training centres and a skills levy of 1% of the wage bill.


15.

In addition, certain fairly technical issues were identified for expedited reform.56

Given that our broad approach to labour market regulation is that it should seek to complement and

integrate with the development policies in place, and the development needs of the recipient

country, we undertook a detailed examination of the economic and social conditions in Lesotho

which then informed our proposals in the Issues Paper.

The crux of our argument is that the adoption of labour standards in LDCs should not undermine the

broader development needs of an LDC, and in this regard, three of the themes we identified in the

Issues Paper, in particular, are deserving of further analysis, these are (1) the proposed broad

direction for labour market policy; (2) our proposals for revising the scope of protection provided by

the Labour Code; and (3) our proposals for introducing flexibility into labour standards. What

follows is a discussion of our proposals, the ILO standards and the ILO position on our proposals.

4.2.1 Theproposedbroaddirectionforlabourmarketpolicy

As the discussion in section 3 above reflects, Lesotho is currently undergoing major restructuring:

with Lesotho experiencing a shift from its reliance on subsistence farming, sustained by mining

remittances and SACU revenues, to increased urbanisation and a decline of the agricultural sector

being off‐set by rising exports, in particular of garments,57 water58 and the sale of diamonds.

Policy interventions are intended to support this shift from agriculture to manufacturing and

services,59 and to support skills development in this regard, however the economy is not generating

enough jobs resulting in high unemployment and a large informal economy.

We took the view that the labour market policy in Lesotho needs to have a strong development

orientation and that, before getting into the detail of the amendments, a broad direction for labour

market policy, taking into account the regional and sectoral development prospects, should be

agreed. We also took into account the significant capacity constraints faced in Lesotho and the

consequent barriers to enforcement in the face of high levels of non‐compliance.60 As Bronstein has

observed, rather than proposing a ‘perfect’ law, the ILO should seek ‘to offer legislative proposals

whose implementation could be realistically undertaken in the context of each country.’61

55 Various aspects of the current framework were raised for reform, including clarity on severance pay exemptions; protection of probationary employees; revisiting the prescription periods for referral of disputes to DDPR and the Labour Court; Labour Court jurisdiction; decriminalisation of non‐compliance; clarity on discrimination law; and issues relating to workmen’s compensation and social security law. 56 These were measures to clarify the enforcement of settlement agreements concluded at the DDPR; and severance pay obligations when other separation benefit schemes are in place. 57 Although the garment sector is the main generator of manufacturing growth, the sector is entirely foreign‐ owned and is dependent on the US African Growth and Opportunity Act (AGOA) for half of its exports. Issues Paper, p. 16. 58 The Lesotho Highlands Project provides a source of income by supplying the Gauteng province in South Africa with water. In addition the project generates hydroelectric power for Lesotho. 59 Currently the secondary sector contributes 40% to GDP and in terms of the National Strategic Development Plan (NSDP) this is projected to rise to 55% in the short‐term and 70% in the medium‐term. Issues Paper p. 16) 60 ILO and UNDP programmes to strengthen the inspectorate are referred to in the text above. Some of the challenges faced in Lesotho with regard to monitoring and compliance are documented by the ILO at http://www.ilo.org/labadmin/info/WCMS_112603/lang‐‐en/index.htm. 61 Bronstein (note 16) at p. 356.


16.

As a result, we proposed a variable (sector‐specific) approach to regulation, using a ‘layered’

approach to labour rights to achieve this. In terms of this approach, we proposed the extension of

social security as the foundation, health and safety and decent conditions of work as the second

layer, active labour market policy in the form of an enhanced skills development system as the third

layer, and flexible wage setting and collective bargaining as the fourth layer. Cutting across these

layers would be massively improved enforcement. Represented in a tabular form:

Table 1 ‘Layers’ of rights

4th layer Flexible wage setting and collective bargaining Enhanced

enforcement mechanism

3rd layer Active labour market policy : enhanced skills development system

2nd layer Health & safety and decent conditions of work

1st layer Extension of social security

We then suggested a variable approach to regulation, depending on the development needs within a

particular sector. More specifically we suggested the following:

The rural economy and subsistence agricultural sector: regulation should primarily be

geared to social protection, i.e. social security, plus health and safety, plus workmen’s

compensation; if wages are set they should be lower than wages in most other sectors. Child

labour should also be a focus in the agricultural sector.

The mining sector: we suggested dedicated health and safety provisions, a floor of basic

rights but with dedicated hours and wages for the sector; and rigorous enforcement.

The manufacturing sector (in urban areas): we suggested health and safety provisions, a

floor of basic rights, skills development, provision for wage determination in significant

sectors and the promotion of sectoral collective bargaining, and rigorous and improved

enforcement; but wages for youth should be low and be linked to learnerships and

apprenticeships, and SMEs below a certain size should be excluded from certain rights.

The services sector (in urban areas): we suggested health and safety provisions, a floor of

basic rights, skills development, provision for wage determination and rigorous and

improved enforcement; but wages for youth should be low and be linked to learnerships and

apprenticeships, and SMEs below a certain size should be excluded from certain rights.

Informal employment: in this regard, we felt that regulation should not attempt to address

informal employment in subsistence agriculture ‐ the most effective mechanism for

addressing livelihoods in the subsistence agriculture sector is extension services and similar

policy mechanisms (which are spelled out in much more detail in the NSDP); we suggest that

the key means to put a brake on the growth of informal employment is to target the

phenomenon at formal enterprises (mainly in urban areas) through better enforcement and

by giving employers flexibility with regard to certain categories of employment and hours of

work.


17.

The ILO, in feedback on the Issues Paper in which we articulate this approach, expressed concerns

with this proposal; pointing out that the approach does not reflect ILO Conventions.

The ILO queried the genesis of the approach, arguing that the section would need to be redrafted to

remove implications that some sectors will not be able to enjoy Convention entitlements. What we

should have done in the Issues Paper is more clearly articulate the applicable Conventions,

reassuring the ILO and the partners in Lesotho, that the minimum standards in the ratified

Conventions would, at least, be complied with in all sectors.

In terms of our suggestions in relation to informal employment in subsistence agricultural, again the

ILO expressed concern also that our suggestion should not run afoul of the ILO Conventions that deal

with the agricultural sector. We engaged with the ILO on the feedback and the reasons for our

proposed approach which we clarified in greater detail in a supplement to the Issues Paper.

We reiterated that informal workers engaged in subsistence farming work in hard‐to‐reach rural

areas; that the Lesotho government works under significant capacity constraints which negatively

impacts their ability to enforce legislation; and that the production in subsistence farming is

vulnerable and precarious.

We proposed that definitions that identify informal workers in subsistence farming must be clearly

delineated62 and that any law reform in this regard must comply with the ILO definitions and

standards, such as the Convention concerning Safety and Health in Agriculture, 2001 (No. 184)63 and

the Recommendation Concerning Safety and Health in Agriculture, 2001 (No. 192), which contains

clauses dealing with self‐employed farmers and the idea of taking progressive steps towards

realising greater protections for vulnerable workers in the agricultural sector.64 In addition the

provisions of the Labour Inspection (Agriculture) Convention, 1969 (No. 129)65 should be

considered.66

62 This could be by activity (ie production for household consumption) and by nature of relationship (for example members of a family). 63 Convention 184 provides for the formulation of a national policy on safety and health standards, and inspection, in agriculture. Article 3 of Convention 184 expressly provides that:

1. The competent authority of a Member … after consulting the representative organizations of employers and workers concerned: (a) may exclude certain agricultural undertakings or limited categories of workers from the

application of this convention or certain provisions thereof, when special problems of a substantial nature arise; and

(b) shall, in the case of such exclusions, make plans to cover progressively all undertakings and all categories of workers.

64 Recommendation 192 has a section titled Self‐employed farmers and provides extensively for self‐employed farmers and other who work with them. These provisions include:

Article 12 (1) Taking into consideration the views of representative organizations of self‐employed farmers, Members should make plans to extend progressively to self‐employed farmers the protection afforded by the Convention, as appropriate. (2) To this end, national laws and regulations should specify the rights and duties of self‐employed famers with respect to safety and health in agriculture. … Article 13 (1) … measures should be taken … to ensure that self‐employed farmers enjoy safety and health protection afforded by the Convention. (2) These measures should include: (a) provisions for the progressive extension of appropriate occupational health services for self‐employed farmers …


18.

4.2.2 RevisingthescopeofprotectionprovidedbytheLabourCode

Significant concern arose in the consultations around the desire to provide protection to the many

vulnerable workers in the informal sector and hence we reflected on the question of revising the

scope of protection provided by the Labour Code, bearing in mind the context of significant capacity

and enforcement constraints. We therefore recommended a process of gradual upgrading of rights,

suggesting ‘that employment rights be secured for informal workers in an incremental manner that

progressively realises these rights’.67

As mentioned, the bulk of informal employment in Lesotho is in the subsistence agriculture sector,

which often involves unpaid family labour and similar working arrangements undertaken in hard to

reach rural locations. Our recommendation, in view of the significant barriers to transforming these

rural working relationships, is to focus initially on informal employment in urban areas – specifically

in formal firms, and to facilitate a transition from informality to formality in these areas. In this

regard we recommended three strategies –

1. Clarity on the question who is an employee?

2. A measure of flexibility (as raised by the employers in consultations) so as to encourage

employers to formalise workers (even if as temporary/casual or part‐time); and

3. To provide a more effective system of inspections in urban‐based sectors, mines and

industry and in commercial agriculture

As mentioned above, the ILO expressed concerns around any proposal to exclude regulation of

employment in the agricultural sector (unless these were in conformity with ILO Convention 184 and

Recommendation 192).68 These instruments themselves provide for members to take progressive

steps toward realising greater protections for vulnerable workers in the agriculture sector.69

Article 14 Where economic, social and administrative conditions do not permit the inclusion of self‐employed farmers and their families in a national or voluntary insurance scheme, measures should be taken by members for their progressive coverage to the level provided for in Article 21 of the Convention. … Article 15 In giving effect to the above measures concerning self‐employed farmers, account should be taken of the special situation of: (a) small tenants and sharecroppers; (b) small owner‐operators; (c) persons participating in agricultural collective enterprises, such as members of farmers’ cooperatives; (d) members of the family as defined in accordance with national law and practice; (e) subsistence farmers; and (f) other self‐employed workers in agriculture, according to national law and practice.

65 Convention 129 provides (in Article 5) that Any member … may … undertake also to cover by labour inspection in agriculture one or more of the following categories of persons working in agricultural undertakings: (tenants who do not engage outside help, sharecroppers and similar categories of agricultural workers; (b) persons participating in a collective economic enterprise, such as members of a co‐operative’ (c) members of the family of the operator of the undertaking, as defined by national laws or regulations. (Underlining our emphasis) 66 Lesotho has not ratified these Conventions; however the ILO standards should inform the direction and the floor of rights provided to vulnerable workers. In addition, we indicate in the supplement paper, that ILO Conventions and Recommendations regulating basic working and employment conditions (ie the duration of working time, overtime, breaks, rest periods, night work, holidays and public holidays, and pay) and the extent to which flexibility is provided for in these Conventions should also be considered. 67 Issues Paper, p. 21. 68 Which is not ratified by Lesotho, although Lesotho has ratified the Right of Association (Agriculture) Convention, 1921 (no. 11). 69 See footnotes 63, 64 and 65 above.


19.

On the proposed approach to flexibility (‘flexibility and formalisation’) concern was expressed by the

ILO that no empirical support is provided for the assumption that more flexible forms of

employment will increase formalisation, and in particular no empirical support was offered to

support the precise forms of casualization and part‐time work proposed. This is feedback which we

have taken to the employer party in Lesotho and is a matter that has subsequently been discussed

within the Task Team.

In essence, the Issues Paper proposed three categories of ‘flexible’ employees distinguished by

reference to both their hours of work and the manner of their engagement.

(a) Employees working 24 or less hours per month;

(b) Employees working more than 24 hours per month but 72 or less hours per month

on a temporary or irregular basis – these are described as ‘casual employees’;

(c) Employees working for more than 72 hours per month but less than the hours of a

full time employee, described as ‘part‐time employees’ who are employed

indefinitely or on a fixed‐term basis.

The relevant extract from the Issues Paper reads as follows:

On flexibility and formalisation: we would suggest that the key to formalising workers is to establish an

employment relationship with a formal employer. We therefore propose that legislation ‘favour’ casualization

over externalisation. Hence we propose introducing provision for a casual worker and a part‐time worker, which

will establish an employment relationship but will give employers the flexibility they might want. In this regard,

reform along the lines of the following provisions might be considered in respect of casual and part‐time work:

Any employee working 24 or less hours of work per month for an employer is excluded from the

provisions of the Labour Code dealing with annual leave, sick leave, maternity leave, educational

leave, notice of termination, severance pay. But the employer of such an employee must comply

with the ordinary daily hours of work and may not allow the employee to work more than 2 hours

overtime per day. Such overtime will be paid at 1.25 of the hourly rate. The employer must also

comply with the daily or hourly rates of any applicable wage order but not with provision for

maternity pay. Payment to be made daily.

An employee working more than 24 hours per month but 72 or less hours per month on a

temporary or irregular basis is classified as a ‘casual’ employee. Such an employee cannot have a

reasonable expectation of continued employment or re‐employment, and is excluded from sick

leave, maternity leave, educational leave, notice of termination, severance pay and weekly rest

periods. But the employer of such an employee must comply with the annual leave provision on a

pro rata basis, with one day of paid annual leave for every 23 days worked in a year. Furthermore,

the employer must comply with ordinary daily hours of work and may not allow the employee to

work more than 2 hours overtime per day. Such overtime will be paid at 1.5 of the hourly rate. The

employer must also comply with the daily or hourly rates of any applicable wage order but not with

provision for maternity pay. Payment to be made daily.

An employee working for more than 24 hours per month but less than the hours of work of a full‐

time employee who is employed indefinitely or on a fixed‐term contract is classified as a part‐time

employee. A part‐time employee is excluded from educational leave and weekly rest periods. The

employer of such an employee must comply with daily or hourly rates of any applicable wage

order, and must comply with annual leave, sick leave and maternity leave provisions on a pro rata

basis, the notice of termination provision, and severance pay. Sunday work must be paid at x2.

If any of the above work on a public holiday they must be paid at x2 their minimum or their normal

daily rate, whichever is the higher.


20.

In terms of our proposal, employees in the identified categories would enjoy varying rights: an issue

which concerned the ILO. For example, category (b) workers would not enjoy sick leave or maternity

leave. The ILO was concerned that the proposal may have deleterious effects on women workers in

particular, who are frequently in more precarious, short‐term and/or part‐time employment.

The ILO expressed concern in relation to the proposed flexibility and requested further detail and

justification for the proposals. The ILO requested an explanation of the basis for the categorisation

and the link between the category and (non)entitlement to benefits, and how the categorisation

interacted with the existing provisions around the types of contracts provided for in the Labour

Code, and for compliance with ILO instruments to be specifically addressed.70

We explained in the supplement to the Issues Paper that the development context in Lesotho

suggests the need for a nuanced approach to flexibility, and that any variation of core labour

standards should not be inconsistent with ILO Conventions. We clarified that the particular type of

flexibility we are proposing i.e. provision for various types of casual and part‐time worker, we

believe is better regulated and more easily enforced than if the flexibility is achieved through

externalisation (e.g. using labour brokers or independent contractors).71

As we explain in the supplement, one reason for suggesting the flexibility options we do is that it was

a point raised (and presented in some detail) by employers, but more importantly, we believe it will

be a way of formalising employment, by providing employers with flexible but regulated options for

employing workers. The hope is that this would be a stepping stone into full‐time, indefinite

employment. It is therefore to give a particular route to flexibility for employers but in a way that

will lead to a reduction in the large number of informal workers. However, we do not have detailed

knowledge of the types of casualization and externalisation that is being practiced in Lesotho, and

the different types of non‐standard employment that they are creating, and we recommended to

the parties that they modify our suggestions to meet their particular needs. We indicate that to

motivate for innovations that provide for greater flexibility it would be useful to consider statistical

analysis from key industry sectors indicating the need for, and benefits to be derived from, a more

flexible labour market.

70 Specifically, our attention was drawn to the Part‐time Work Convention C175, article 8:

1. Part‐time workers whose hours of work or earnings are below specified thresholds may be excluded by a Member:

(a) from the scope of any of the statutory social security schemes referred to in Article 6, except in regard to employment injury benefits; (b) from the scope of any of the measures taken in the fields covered by Article 7, except in regard to maternity protection measures other than those provided under statutory social security schemes.

2. The thresholds referred to in paragraph 1 shall be sufficiently low as not to exclude an unduly large percentage of part‐time workers. 3. A Member which avails itself of the possibility provided for in paragraph 1 above shall:

(a) periodically review the thresholds in force; (b) in its reports on the application of the Convention under article 22 of the Constitution of the International Labour Organization, indicate the thresholds in force, the reasons therefor and whether consideration is being given to the progressive extension of protection to the workers excluded.

4. The most representative organizations of employers and workers shall be consulted on the establishment, review and revision of the thresholds referred to in this Article. (Underlining our emphasis) 71 Our proposal is based, not on principled or ideological grounds, but is intended as a pragmatic response to the realities faced in the labour market.


21.

The theme of flexibility, as a measure to balance Lesotho’s specific development needs with an

increased and effective floor of labour rights, was carried through to our proposals for the revision

of labour standards.

4.2.3 Introducingflexibilityintolabourstandards

Part VI of Lesotho’s labour code regulates weekly rest, hours of work, holidays with pay, educational

leave and sick leave; and in this regard we proposed the introduction of a variety of alternative ways

of articulating hours of work in the Labour Code. More specifically, we suggested that provision be

made for the compression of ordinary weekly hours of work; for the compression of monthly hours;

and for the averaging of weekly hours over four months.

An extract of our recommendation in the Issues Paper is as follows:

An alternative way of articulating hours of work that accommodates flexibility in the context of hours of work is

to provide for a variety of alternatives to the existing norm, for example to include in the Labour Code:

Provision for compression of ordinary weekly hours of work within a week subject to a maximum of 12

hours per day without overtime pay. Excludes Sundays.

By agreement with [xxx]

Transport arrangements [xxx]

Provision for compression of monthly hours of (4.3 x 45 = 193.5 hours) within a month without overtime

pay subject to a maximum of 11 hours per day, 6 hours on Saturdays and excluding Sundays.


Transport [xxx] expediency

Provision for averaging of weekly hours over four months subject to maximum of 56 hours per week,

with hours over 52 hours in a week to be paid at 1.25 overtime pay.


Transport [xxx]

The ILO cautioned that the introduction of any new measures of flexibility must occur on the basis of

appropriate empirical evidence and within the framework of the applicable Conventions, and

recounted the link between working hours and health and safety outcomes. In this regard, we have

provided the national task team that has taken ownership of the law reform process with further

notes on flexible working conditions and a table of the working conditions that are under review

juxtaposed alongside the ILO standard and comparative examples in the region.

Through a process of iteration between the consultant and the ILO expert, the Issues Paper was

supplemented;72 and additional material was provided to the Lesotho Task Team for further

reflection by the Task Team.73 In the notes provided to the national task team, we pose a series of

questions for the task team to reflect on. The indication from Lesotho is that further engagement

72 Supplement to the Issues Paper, July 2014. 73 The following were provided: Notes on Regulating the Informal Sector and who is an Employee (29 July 2014); Notes on Flexible Working Conditions (10 September 2014(; and Notes on Collective Bargaining and Organisational Rights (26 November 2014).


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between the parties is taking place and, from time to time, the task team raises questions for further

clarification and provides the minutes from its meetings and, recently, a schedule detailing a

timeline for the reform process was forthcoming. The hurdles faced by the team in Lesotho are

significant, what is encouraging is the sense of ownership of the project, and commitment to the

process which are implicit in the recent communications from Lesotho.

5 Summaryandconclusion

5.1 Thesignificantchallengesinlabourlawreforminaleastdevelopedcountrycontext

Earlier we identified four categories of constraints that may hinder labour law reform, and which are

perhaps amplified in the least‐developed country context. In this section we return to these themes

and provide a brief summary of these constraints as experienced in the Lesotho project.

The first two (stakeholder resource and capacity constraints and the host country political and policy

context) are internal to Lesotho, although still open to positive influence by the ILO. For example,

tailored training programmes, and providing support to the legislative drafting process will build

stakeholder capacity. The ILO has power to influence policy developments,74 although political

influence is perhaps more difficult, but not impossible, to conceptualise.75

In the case of Lesotho, the ‘one‐size‐fits‐all’ approach to labour standards and the negotiated

boundaries for external consultants are factors which are linked. One of the issues we grappled with

in reflecting on the approach we should recommend in the Issues Paper is the tension between an

aspirational approach on the one hand, in which high standards might be adopted but which, in

reality, will be met with low levels of compliance, and a more pragmatic approach on the other

hand, in which more realistic standards are set and a higher level of compliance is therefore likely to

be achieved. Should our approach have been aspirational or rather one that is feasible and realistic?

The ILO was open to our interaction in this regard, and perhaps it is a matter on which we should

have more robustly engaged earlier on in the process, alongside a discussion of the ILOs

expectations of the consultant in the process.

5.2 Suggestionsonfacilitatingdevelopmentinalabourlawreformcontext

It struck us throughout the reform process that Lesotho’s capacity constraints in terms of law‐

making and enforcement present significant (at times seeming insurmountable) hurdles in the

process of finalising a revised Labour Code. While this certainly should not detract from the ILO’s

commitment to technical cooperation in Lesotho, with law reform as its ultimate goal, what we did

experience as a particularly successful form of intervention in Lesotho that results in the upgrading

of labour standards76 in the garment industry is the ILO/IFC77 Better Work partnership. Better Work

74 Examples include the ILO’s Decent Work Country Programme Phase I 2006 – 2009; and the Decent Work Country Programme Phase II 2012‐2017. 75 Consider for example the ILO’s stance on Apartheid in South Africa. 76 Standards that have been improved include those relating to health and safety, harassment, HIV discrimination, increased maternity leave and other maternity rights. See http://betterwork.org/global/?page_id=322. 77 International Labour Organisation / International Finance Corporation.


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Lesotho aims to ‘reduce poverty by creating decent work opportunities in Lesotho’s garment

industry.’78

The gains for labour derived from the Better Work programme are significant and could not easily

have been achieved through law reform alone. Programmes such as Better Work can play an

important role, complementary to the ILO’s traditional method of technical assistance, in raising,

implementing, and enforcing labour standards.

5.3 Concludingremarks

Labour law reform in a least‐developed country context presents a number of complex challenges

which call for innovative, collaborative and responsive interventions and in our view, the ILO is the

organisation best placed to co‐ordinate such an intervention. In the context of Lesotho, for us it has

been a privilege to be involved in the unfolding process in Lesotho.

78 This is achieved ‘[b]y conducting independent factory assessments against national and international labour standard as well as advisory and training services, [and] the programme assists factories in the remediation of non‐compliances.’ Better Work Lesotho, Better Work Lesotho: Thematic Synthesis Report: Contracts’, (2014) ILO/IFC. at p. 4.


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Bibliography

Primary sources Legislation in Lesotho:

Constitution of Lesotho, 1993

Labour Code Order, 1992 (Order no. 24 of 1992)

Labour Code (Amendment) Act 1997 (Act No. 9 of 2006)



Draft Amendment Bill, 2006

ILO Conventions and Recommendations:

Convention concerning Safety and Health in Agriculture, 2001 (No. 184)

Recommendation Concerning Safety and Health in Agriculture, 2001 (No. 192)

Labour Inspection (Agriculture) Convention, 1969 (No. 129)

Part‐time Work Convention, 1994 (No. 175)

Policy in Lesotho:

Government of Lesotho, National Strategic Development Plan 2012/13 – 2016/17 (September 2012).

Government of Lesotho, National Vision 2020

Draft National Employment Policy, 2014

Lesotho Industrial Policy, 2011‐2013 (Aug 2010)

Ministry of Trade & Industry, Cooperatives & Marketing, Lesotho Competition Policy, 2007

National Investment Policy of Lesotho, 2013

ILO policy and related documents:

Better Work Lesotho, Better Work Lesotho: Thematic Synthesis Report: Contracts’, (2014) ILO/IFC. Lesotho Decent Work Country Programme 2006 to 2009

Lesotho Decent Work Country Programme Phase II 2012 to 2017

Report on Addressing the Implementation Deficits: Assisting the Constituents in Lesotho to Implement the Comments of the Committee of Experts on the Application of Conventions and Recommendations (CEACR) 2014.

Collier, Debbie and Godfrey, Shane ‘Review of Labour Legislation in Lesotho’ Issues Paper (June 2014)


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Secondary sources:

Blackett, Adele ‘Beyond standard setting; a study of ILO technical cooperation on regional labour law reform in West and Central Africa’ (2010‐2011) (32) Comparative Labor Law & Policy Journal 443‐492

Bronstein, Arturo ‘The role of the International Labour Office in the framing of national labor law’ (2004‐2005) (26) Comparative Labor law & Policy Journal 339‐369.

Motsamai, Dimpho Southern Africa Report: Elections in a time of instability – Challenges for Lesotho beyond the 2015 poll (April 2015) Issue 3, Institute for Security Studies.

Standing, Guy ‘The ILO: An Agency for Globalisation?’ (2008) 39 Development and Change 355 – 384.

University of Melbourne ‘Improving Labour Systems in Southern Africa’ Centre for Employment & Labour Relations Law, University of Melbourne, Med‐term Evaluation: Final Report October 2006

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