Labour law amendments on the cards

July 1st, 2012

By Nomfundo Manyathi

Draft legislation to amend the Labour Relations Act 66 of 1995 (LRA) and the Basic Conditions of Employment Act 75 of 1997 (BCEA) was the topic at a recent employment law seminar in Johannesburg. Topics covered at the seminar included labour broking, dispute resolution and strikes. At the time of going to print, the Bills had been approved by cabinet and were being considered by the Portfolio Committee on Labour before submission to the National Council of Provinces for adoption. Several directors of law firm ENS were speakers at the seminar.

Brian Patterson spoke about labour brokers and other forms of short-term employment. He said that the Labour Relations Amendment Bill (B16 of 2012) amended s 198, which refers to labour broking. He added that over one million people in South Africa were employed through labour brokers, which constitutes 7,5% of the total workforce. Mr Patterson said that the proposed amendments provided for the registration of labour brokers.

Dion Masher spoke about dispute resolution, unfair dismissal and unfair labour practices. He said that the Labour Relations Amendment Bill proposed a range of amendments to the provisions that deal with the operations of the Commission for Conciliation, Mediation and Arbitration (CCMA) to facilitate the resolution of disputes and enhance the commission’s efficiency. Mr Masher said that these amendments included excluding high-income earners from bringing unfair dismissal claims to the CCMA.

Mr Masher said that there had been a ‘constant fight for territory’ between the Supreme Court of Appeal, the Labour Court and the High Court regarding labour law matters. He said that the Labour Court would now be empowered to order compliance with the LRA or any employment law, which would help in clarifying which court will have jurisdiction.

Mr Masher said that the amendments attempted to make court reviews easier and more efficient. He said that it currently took approximately two years to obtain a judgment in a review application in the Labour Court.

‘What the legislature does now is put the onus on the applicant to apply for the court date within six months of bringing the application,’ he said. ‘Labour Court judgments will have to be handed down as soon as reasonably possible and not later than six months after the hearing, and review applications must be handed down within six weeks,’ he added.

Regarding representation in the Labour Court, Mr Masher said that members of trade unions or employers’ organisations would no longer have a right of appearance, this being limited to office bearers and officials.

He said that, save for legal practitioners, those who had right of appearance – such as directors, office bearers and officials – would not be able to charge for their services, unless permitted to do so by the Labour Court.

He also said that Labour Court judges may sit as Labour Appeal Court judges.

Lizle Louw spoke about collective issues and focused on the granting of organisational rights, strikes, picketing and essential services. Ms Louw said important amendments had been made to chapter four of the LRA, which deals with the procedural requirements for protected industrial action. She said that the changes were intended to respond to unacceptable levels of unprotected industrial action and unlawful acts in support of such action, including violence and intimidation.

Ms Louw said that one of the proposed amendments sought to introduce additional procedural requirements for a strike to be protected. This amendment would provide for a ballot to be conducted by the union among its members on whether or not to strike and will require the majority of voters to vote in favour of strike action in order for the union to proceed with a strike. Ms Louw stressed that the majority of voters, not members, would be required to vote in favour of the strike.

One of the proposed amendments is that when the CCMA, a bargaining council or an accredited agency certifies that the ballot was fair, there could be consensus or agreement, or at least a presumption, that the requirements for a ballot had been met.

On the topic of essential services, Ms Louw said that the ‘most interesting’ amendment to the section of the LRA relating to essential services was that public officials – defined as customs officials, immigration officers, judicial officers and officials working in the administration of justice – may be deemed to be essential service providers, who are not permitted to strike. Ms Louw said that there was heavy opposition from unions on this aspect because they viewed it as an infringement on the right to strike.

Itayi Gwaunza spoke about the Basic Conditions of Employment Amendment Bill (B15 of 2012). He said that one of the proposed amendments was to provide for ‘electronic mail’ in the definition of ‘service’.

Mr Gwaunza said that the Bill also prohibited requiring employees to purchase goods, products or services from an employer or a person nominated by an employer. He added that one exception was that there was no prohibition if the employment contract or collective agreement required participation in a scheme involving the purchase of specific goods, products or services if the price of the goods, products or services provided through the schemes is fair and reasonable, the employee receives a financial benefit from participating in the scheme, and the purchase is not prohibited by any other statute. He said that a subsidised work medical aid scheme would therefore not be illegal.

Mr Gwaunza said that the amendments proposed to give the Minister of Labour the power to –

  • determine the conditions of labour;
  • set increases to actual wages, instead of minimum wages, for vulnerable workers in sectoral determinations; and
  • facilitate regulation of temporary employment by extending the protection of vulnerable workers and to facilitate their right to freedom of association regarding sectoral determinations.

Nomfundo Manyathi,

This article was first published in De Rebus in 2012 (July) DR 11.