Written by Darcy du Toit
This blog series invites discussion around a research agenda which is implicit in our name: Centre for the Transformative Regulation of Work.
These terms are inclusive, indicating that the envisaged research agenda is open-ended.
‘Work’ indicates that the inquiry is not limited to employment; it encompasses all forms of work that contribute to the production of goods or services for others (in contrast to work done purely for the worker’s own benefit).
‘Regulation’, likewise, covers all rules that govern the performance of work, from legislation to individual contracts and collective agreements, ‘custom and practice’ and rules made by employers in the exercise of managerial discretion. This is because workers’ conditions can be determined by numerous means.
‘Transformative’ is the key qualifier. It indicates that the focus is not primarily on analysing problems but, rather, on what to do about them. In South Africa a parallel can be drawn with the idea of ‘transformative constitutionalism’ – i.e., the fact that the Constitution not only regulates the exercise of state power, but also mandates state action to give effect to the principles of social justice set out in the Bill of Rights.[1]
However, the process is not limited to South Africa. Similar principles are embodied in the Universal Declaration of Human Rights and other international conventions.
Transformation is therefore about identifying features of present-day social structures and institutions that are in conflict with the principles of social justice and developing alternatives that give effect to those principles.
The challenge lies not so much in the first part. Much of what is wrong stares us in the face (deepening inequality, climate change…) and has been researched extensively. The second part is the crux. It involves both outcomes (‘what to aim for’) and process (‘how to get there’) – i.e., the concrete nature of the alternatives to be aimed for, combined with concrete measures for implementing them.
This implies a critical, open-ended investigation which cannot be limited to the existing institutional or conceptual framework, nor to postulating how things ‘ought to be’. The central question is how to get there – i.e., understanding what is needed to develop practical alternatives, whether by adapting existing institutions or by creating new institutions that are geared to achieving the objectives of social justice.
Much work has been done towards addressing these questions and numerous proposals – many of them reflected in policy documents and international instruments – have emerged as to what society should do (or stop doing) to put an end to human rights abuses, including environmental degradation. Yet, despite this, abuses have persisted; indeed, the greatest advances in knowledge and technology ever seen have coincided with an exponential rise in inequality.
This is the elephant in the room. It shows that there is more work to be done.
What does all this have to do with labour law? Two answers can be given. First, labour is central to human and socio-economic development, while the exploitation of workers remains a pervasive feature of social injustice. Secondly, labour law is about promoting social justice and is thus intimately concerned with the questions outlined above.
This forum aims at stimulating conversation about these questions, primarily from a labour law perspective but extending to cognate issues that present themselves. This includes addressing the elephant in the room: why existing research and policies for promoting social justice have had such a limited impact on global inequality and what we can learn from this.
We see this as an ongoing and long term project (“as short as possible, as long as necessary”). The initial blogs are intended to get the ball rolling, outlining propositions which could be seen as research questions or as abstracts of research proposals. But the value of the forum will lie in the debate it provokes. From this we hope to see the development of systematic inquiry towards clarifying key concepts that can help to map out parameters within which, ultimately, transformative measures (“solutions”) can more readily be conceptualised.
This process will help to develop a frame for CENTROW’s research towards giving practical meaning to the transformative regulation of work. The stating point is that there are no ready-made answers. Hard questions need to be asked, criticism and disagreement need to be spelled out. Where it may lead remains to be seen. But, if the forum stimulates new research towards this end based on the exchange of ideas and reasoned argument, it will serve its purpose.
[1] See Debbie Collier ’Transformative regulation and a model for unacceptable forms of work’ (Centrow, September 2022) ; Theunis Roux ‘Transformative Constitutionalism and the best interpretation of the South African Constitution: distinction without a difference?’ (2009) 20 Stellenbosch Law Review 258.
