Estructura del proceso de trabajo con grupos

The central research question which this thesis will seek to address is how, if at all, South African legislation should be adapted to cater for the integration of the demands of modern parental caregiving with work.

Before further addressing the research question, it must be noted that the informal economy accounts for a large part of the economy in South Africa.⁷² These workers in

71 See ch 7 below. Only Brazil and India (in the case of Central Government employees) provide for paternity leave and only Russia and India (in the case of Central Government employees) for parental leave. For India, see the Central Civil Services (Leave) Rules; for the other countries see B Sorj “Brazil” (2017) International Review of Leave Policies and Research

<http://www.leavenetwork.org/fileadmin/Leavenetwork/Country_notes/2017/Brazil_2017_fina l.pdf> (accessed 19-08-2017); O Sinyavskaya “Russian Federation” (2016) International Network on Leave Policies & Research <http://www.leavenetwork.org/fileadmin/Leavenetwo rk/Country_notes/2014/Russian_Federation.pd> (accessed 19-08-2017) and F Wu “China”

(2017) International Review of Leave Policies and Research <http://www.leavenetwork.org/file admin/Leavenetwork/Country_notes/2017/China_2017_FINAL.pdf>(accessed 19-08-2017

72 International Labour Office “Transitioning from the informal to the formal economy Report V(1)” (2014) International Labour Office <http://www.google.co.za/url?sa=t&rct=j&q=&esrc=s

&source=web&cd=1&ved=0ahUKEwiL0OPw1sLXAhUkL8AKHQ3nChQQFgglMAA&url=http

%3A%2F%2Fwww.skillsforemployment.org%2Fwcmstest4%2Fidcplg%3FIdcService%3DGE T_FILE%26dID%3D181570%26dDocName%3DWCMSTEST4_123048%26allowInterrupt%

3D1&usg=AOvVaw101U4FTO9MrxtMsSMpbq2H> (accessed 15-11-2017) 1.

the informal economy are not “employees” who are recognized, registered, regulated or protected under labour legislation and social protection, for example, when their employment status is ambiguous, and are therefore not able to enjoy, exercise or defend their fundamental rights.⁷³ Although these workers are particularly vulnerable to various risks and contingencies and therefore most in need, most have little or no social protection and receive little or no social security, either from their employer or from the government.⁷⁴ Beyond traditional social security coverage, workers in the informal economy are without social protection in such areas as education, skillbuilding, training, health care and childcare, which are particularly important for women workers. The lack of social protection is a critical aspect of the social exclusion of workers in the informal economy.⁷⁵ These workers need to be included in some kind of social protection scheme and existing legal protection needs to be extended to cover these vulnerable category of workers so that they can, inter alia, benefit from work-care legislative provisions.⁷⁶

In addressing the research question, a number of related research questions will be considered, questions also related to the sequence of chapters of this study. In chapter 2 below, the enquiry will be into the importance of care and a description of and distinction between the concepts of “family”, “parenting” and “care”. Specific questions that will be considered include the following: If the “family” is seen as the cornerstone of society, how does this concept relate to the concepts of “parenting” and “care”?

What are the dimensions of parenting and care, in terms of content and in terms of duration (the different stages of development)? What is the importance of care in and to society, in terms of a multi-disciplinary evaluation? What are the structures of care in modern society in general, and in South African society in particular? What are the

73 International Labour Office “Transitioning from the informal to the formal economy Report V(1)” International Labour Office 10, 31 and E Fourie “Exploring innovative solutions to extend social protection to vulnerable women workers in the informal economy” (2016) 37 ILJ 831 831, 840.

74 International Labour Office “Transitioning from the informal to the formal economy Report V(1)” International Labour Office 4, 68 and Fourie (2016) 37 ILJ 831, 840.

75 International Labour Office “Transitioning from the informal to the formal economy Report V(1)” International Labour Office 69 and Fourie (2016) 37 ILJ 831, 840

76 International Labour Office “Transitioning from the informal to the formal economy Report V(1)” International Labour Office 31, 33 and Fourie (2016) 37 ILJ 831, 840.

reasons, if any, for changes in the structure of care in South Africa? In terms of the broad goal of this study, which is about the appropriate regulation of the integration of work and care, it is submitted that these questions are of vital importance: the appropriate regulation of any phenomenon in society depends, in the first instance, on a proper appreciation of what you are trying to regulate.

After chapter 2, the focus will be on the evaluation of existing modes of regulation of the integration of work and care on a comparative basis. Chapter 3 will provide the baseline and consider the extent to which the need for the integration of work and care has been recognised at international, regional and constitutional level. However, as mentioned above, the true domestic operationalisation of the integration of work and care happens within countries through equality legislation and/or specific rights contained in employment standards legislation. From chapter 4 onwards, the focus be on a comparative analysis of such domestic operationalisation. In doing so, a comparison will be made between South Africa and four developed and four developing countries. The developed countries are the United Kingdom (“UK”) and Sweden (in the European context), as well as Canada and the United States of America (“USA”). The developing countries, chosen for the reasons mentioned earlier and explained more fully later, are Brazil, Russia, India and China. In this regard, it is important to note that the goal of this study is not to provide a comprehensive comparative analysis of the integration of work and care. Rather, the goal is to provide a representative comparative analysis inclusive of both developed and developing countries. It is submitted that a sample of nine countries across the developmental divide is not only sufficient to draw valid insights and comparisons about the legal regulation of the integration of work and care, but also to control for the possible impact of developmental levels on the level of benefits in different societies.

This in mind, chapter 4 will consider the effectiveness of equality legislation to promote the integration of work and care. Its focus will primarily be on South Africa. A number of underlying questions – especially as far as South Africa is concerned – guides this chapter and include the following: What has been the experience in South Africa with discrimination litigation? Has the express recognition of “family responsibility” (apart from pregnancy, sex and gender discrimination) as a ground of discrimination made any significant difference to the integration of work and caregiving? Can it be said that recognition of a duty to accommodate in the EEA and the phenomenon of gender based affirmative action have made a significant difference

to the integration of work and care? In addition, to the extent that discrimination law has been a failure in facilitating the integration of work and caregiving – what are the essential reasons for this and can anti-discrimination law and its enforcement be adapted to make such a contribution?

Chapters 5 to 8 will consider the specific rights regimes on the integration of work and care of the different countries that form part of this study. In chapter 5 the focus will be on on the UK and Sweden in the European context, chapter 6 will be devoted to Canada and the USA, chapter 7 to the BRIC countries and chapter 8 to South Africa.

In doing so, and in line with the comments made earlier about the structure of specific rights regimes across countries, specific attention will be paid to the legal regulation of time off/ leave provisions in these countries, as well as the legal approach to the broader concept of flexible working while doing permanent work. This comparison will provide answers to different questions: What are the worldwide trends in employment standards legislation to provide for the integration of work and caregiving – in terms of both content and levels of protection? Are these trends the same across developed and developing countries? How does South African standards legislation compare in light of these trends? What are the possibilities of adapting existing standards in South Africa to provide for increased integration of work and caregiving?

Chapter 9 will summarise the findings of the study and make recommendations on the way forward for South Africa as to appropriate regulation of the integration of work and care. At this early stage, it may be submitted that perhaps the real value of this research will be at a more fundamental level. As the preceding discussion shows, the search for practical recommendations about the integration of work and care will, in effect, address three fundamental concerns:

(1) proper recognition and preservation of the family, parenting and care as the cornerstone of the long-term health of a democratic society;

(2) the promotion of equality in the South African society through the provision of solutions catering for the effective integration of women as primary care-givers into the workplace;

(3) in general, and at the individual level, the promotion and preservation of the fundamental human rights of all workers as persons.

CHAPTER 2: THE IMPORTANCE AND NATURE OF PARENTAL CAREGIVING IN