The Minister of Labour submitted amendment bills for the Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA) to the Cabinet Committee on Wednesday 14th March 2012.
On Tuesday, 20th March 2012, Cabinet approved the submission of these Bills to Parliament where they will be considered by the Portfolio Committee on Labour before being submitted to the National Assembly and the National Council of Provinces respectively for adoption.
The first versions of these two bills were published for public comment on 17th December 2010. The Department received comment from approximately 390 individuals and organisations – with comments focused mainly on the issue of labour brokers.
In January 2011, negotiations between government and its social partners - organized labour and organized business - commenced in the National Economic Development and Labour Advisory Council (NEDLAC). These concluded earlier this year with agreement on a range of issues that are now contained in the bills that are now going to Parliament.
The current amendments have their origins in the growing“informalisation” or “casualization” of work that has become a feature of the South African labour market over the past decade. The 2009 election manifesto of the ruling party gave urgency to the task of introducing amendments by setting out the following;
“In order to avoid exploitation of workers and ensure decent work for all workers as well as to protect the employment relationship, introduce laws to regulate contract work, subcontracting and out- sourcing, address the problem of labour broking and prohibit certain abusive practices. Provisions will be introduced to facilitate unionisation of workers and conclusion of sectoral collective agreements to cover vulnerable workers in these different legal relationships and ensure the right to permanent employment for affected workers.”
Amendments to the LRA and the BCEA therefore have a major focus on addressing what is now commonly referred to as the phenomenon of labour broking.
Additional amendments have been effected to these acts to achieve the following:
· To bring them in line with labour law developments;
· To improve the functioning of the Commission for Conciliation Mediation and Arbitration (CCMA), and;
· To fulfill our obligations as a member state of the International Labour Organisation (ILO).
The Labour Relations Amendment Bill, 2012 and the Basic Conditions of Employment Amendment Bill, 2012 are now very different to the bills published in December 2010.
The following are, in summary, the major areas of amendment in the bills.
1. Labour Relations Amendment Bill, 2012
· Addressing the problem of labour broking
The Labour Relations Amendment Bill retains section 198 and it will continue to apply to all employees. Temporary employment is limited to genuine temporary work that does not exceed six months. A temporary employment service is the employer of persons whom it pays to work for a client and the temporary employment service and its client are jointly and severally liable for specified contraventions of employment laws. Additional protection is extended to persons employed in temporary work and who earn below an earnings threshold (set at the BCEA threshold of R172, 000.00 per annum). Unequal treatment of those employed in temporary work who earn below the threshold is prohibited.
· Regulating contract work
The amendments introduce regulation of fixed term contracts for those who earn below the threshold. An employee may be employed on a fixed term contract for longer than six months only if the work is of limited duration or the employer can demonstrate a justifiable reason for fixing the term of the contract. An employee who is employed for longer than six months is deemed to be employed for an indefinite period and must be treated no less favourable than a permanent employee doing the same or similar work. The provisions relating to fixed term contracts do not apply to an employer who employs less than 10 employees, nor does it apply to an employer who employs less than 50 employees and whose business has been in operation for less than two years.
· Commission for Conciliation Mediation and Arbitration (CCMA)
The bill proposes a range of amendments to the provisions that deal with the operations of the CCMA to facilitate the resolution of disputes and enhance the efficiency of the CCMA’s operations. These amendments include the exclusion of high-income earners from bringing unfair dismissal claims to the CCMA.
· Strikes and lock-outs
Important amendments are made to chapter four of the LRA which deal with the procedural requirements for protected industrial action. The changes are intended to respond to unacceptable levels of unprotected industrial action and unlawful acts in support of industrial action, including violence and intimidation.
· Essential Services
A number of amendments are made to deal with problems that have been identified with the current system for dealing with disputes in essential services. These problems include the scope of essential service determinations made, the small number of minimum service determinations ratified by the Essential Service Committee (ESC) and the high level of unlawful strike action in essential services. A new provision deals with public officials exercising authority in the name of the state, defined as customs’officials, immigration officers, judicial officers and officials working in the administration of justice.
· Organizational rights and collective bargaining
A few amendments are introduced to change the circumstances under which a Commissioner of the CCMA may grant organizational rights where trade unions refer disputes relating to these rights. A Commissioner may consider the composition of the workforce, including the extent to which employees are engaged in non-standard working arrangements. This provision is aimed at promoting the organization of those in atypical work situations including being placed in employment through temporary employment services. Amendments to provisions dealing with collective bargaining aim to improve the effectiveness of exemption procedures from collective agreements extended to non-parties. Bargaining councils will now have 30 days within which to decide on exemption applications. Appeals against exemption decisions will also have to be dealt with by an independent body within 30 days.
2. Basic Conditions of Employment Amendment Bill, 2012
· Changes to the power of the Minister
Amendments are proposed to give the Minister the power to prescribe thresholds of representativeness of a trade union to have the organizational rights of access to employer premises. This is intended to apply to situations where unionization is difficult but where a more flexible threshold may facilitate unionization within a sector or area.
Further amendments in this regard propose that the Minister could set increases to actual wages instead of minimum wages for vulnerable workers in sectoral determinations
A proposed enabling provision in the Basic Conditions of Employment Act will provide the Minister with the power to determine the conditions of labour tenants.
· Sectoral Determinations
Amendments are proposed to adjust the powers of the Minister and the Employment Conditions Commission in respect of sectoral determinations to, inter alia, facilitate regulation of temporary employment by also extending protection of vulnerable workers and facilitate their right to freedom of association.
· Child labour
The provisions in the BCEA dealing with the prohibition and regulation of child labour are to be extended to cover all work by children and not only work by children as employees. These amendments will align the BCEA with South Africa’s international law obligations in terms of the International Labour Organisation Convention (No. 182) on the Worst Forms of Child Labour.
· Strengthening the power of the inspectorate
While the framework for enforcing compliance with the BCEA is maintained, amendments are proposed to sections 68 and 73 to remove bottle-necks and delays in the enforcement process.
The maximum term of imprisonment for an offence involving child labour or forced labour is increased from three to six years. A new clause also prohibits conduct by employers where they require or accept any payment by or on behalf of an employee in respect of employment or the allocation of work and an employer may not require an employee to purchase any goods or services from the employer. The maximum penalties that may be imposed for a breach of the BCEA not involving underpayment are increased for the first time since the Act came into effect in 1998.
The two bills that are to be submitted to Parliament have been the subject of robust engagement between the social partners at NEDLAC during the past year. While there has been substantial agreement on many of the amendments, there remain key areas of disagreement. On these areas of disagreement, business and labour are entitled to put forward their views during the Parliamentary process in terms of the NEDLAC Protocol.
The Department will be conducting briefing sessions in the major centres of each province over the next few weeks. The aim of these sessions will be to inform the public of the proposed amendments to the LRA and the BCEA. We recognise the important role that the media will play in this regard and we look forward to your cooperation in ensuring that information on the bills is disseminated in an objective and accurate manner.
Issued by: Ministry of Labour
Lloyd Ramutloa 22 March 2012