Labour Law Amendments 2012: Key Changes to LRA

Labour Law Amendments,
2012

For the SABPP

Presentation by Dr Linda Meyer
CIMAP www.cimap.co.za
October 2012

Labour Law Amendments 2012

Labour Relations Amendment Bill, 2012
Basic Conditions Of Employment
Amendment Bill, 2012
Employment Services Bill, – Still to be
presented to Parliament
Employment Equity Amendment Bill, – Still
to be presented to Parliament
11/17/2012 www.cimap.co.za 2

Freedom Charter 1955
Key elements of worker rights are succinctly enshrined in the
Freedom Charter, providing:
 "All who work shall be free to form trade unions, to elect
their officers and to make wage agreements with their
employers; there shall be a forty-hour working week,
 a national minimum wage, paid annual leave, and sick
leave for all workers, and maternity leave on full pay for
all working mothers; miners, domestic workers, farm
workers and civil servants shall have the same rights as
all others who work; child labour, compound labour, the
tot system and contract labour shall be abolished".

Background
2009 ANC Election Manifesto
Avoid exploitation of workers;
Ensure decent work for all workers;
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.


Background
2009 ANC Election Manifesto
Facilitate unionisation of workers and
conclusion of sectoral collective agreements ;
To cover vulnerable workers in these different
legal relationships;
 Ensure the right to permanent employment
for affected workers;
Procurement policies and public incentives
will include requirements to promote decent
work."

BCEA & LRA
 The NEDLAC negotiations concluded on
amendments to the LRA and the BCEA in
January 2012;
 Revised Bills were submitted to Cabinet in April
2012 and they were approved for submission
to the National Assembly;
 Public Hearings and submissions are now
complete and submissions have been made to
the Office of the Chief State Law Adviser.


Unemployment & Competiveness
 6.4 million unemployed South Africans:
 Predominantly youth
 Mostly prevalent in previously disadvantaged communities
 Typically not previously employed
 SA 133rd out of 139 in WEF Competitiveness Report
 Average wage settlements 2010 – 8.2% (2009 – 9.3%)*
 The number of working days lost due to strike action rose
from 2.9m days in 2009 to 14.6m day in 2010*
 The lower level civil servants in South Africa are of the best
paid employees for unskilled and semiskilled in the world
today – Mike Schüssler (Economist.co.za)

Unemployment % Education
 One’s salary nearly doubles between grade 11 and
Matric.
 After completing a bachelors degree, your salary rises by
over 350% when compared to that of a Matriculant
 Over a normal lifespan a person with a degree gets a
308% higher return than a person with just matric.
 Mike Schüssler (Economist.co.za)

Labour Relations
Amendment Bill, 2012


LRA Amendments
Collective Bargaining and Organisational Rights - Section 21

 Commissioner may determine Representativity- the
composition of the work-force 21(8)(b)(v), which states
that where there is a dispute regarding whether the trade
union is representative or not, a Commissioner must
consider:
 "the composition of the work-force ....taking into account
the extent to which there are employees assigned to work
by temporary employment services, employees engaged in
fixed term contracts, part-time employees or employees in
other categories of non-standard employment".


LRA Amendments
Collective Bargaining and Organisational Rights - Section 21-
1(b) to insert new subsections 21(8A) -(8D).

 Commissioner allowed in arbitration to grant a trade union,
that is not a majority union, the rights under sections 14
and 16 - the rights to elect representatives at the
workplace and to disclosure of information.
 Commissioner may grant 1 or more unions acting jointly
rights under sections 12 (access to the workplace), 13
(deduction of union fees by employer) and 15 (leave for
trade union activities), provided the union)s) represent a
significant interest or a substantial number of employees
(do not have to represent a majority of employees at the
workplace).

LRA Amendments
Strikes and Lock-outs - Chapter IV of the LRA
Amendments to sections 64; 67 and 69.

 To require the holding of ballots by trade unions and
employers’ organisations prior to calling a strike
or lock-out; (must have a majority).
 A certificate must be issued by the CCMA, bargaining
council or accredited agency showing compliance with
balloting requirements. (See section 6 of the LRAB, which
amends section 64(1) of the LRA.)


Procedure Strike or Lock Out (S 64)

Compliance
Certificate
30 Days elapses Ballot Strike or Notice of strike
Refer dispute issued by
/ certificate Lock Out / lock out
(CCMA/BC/Acr
Agency

11/17/2012 14

LRA Amendments
Strikes and Lock-outs S 69

 To strengthen the status of picketing rules and agreements
and to clarify the powers of the Labour Court in respect of
breaches of picketing rules or agreements;
 “(6) The rules established by the Commission may
provide for picketing by employees :
 (d) in a place contemplated by section 69(2)(a) which is
owned or controlled by a person other than the employer,
if that person has had an opportunity to make
representations to the Commission before the rules are
established;

LRA Amendments
New probationary type clause -

“Provision for a new probationary type clause that would
effectively allow employers to hire and fire employees
during the first six months of employment, during which time
the employee would have no recourse to challenge an
unfair dismissal either on substantive or procedural grounds
of fairness”. (Patrick Craven; COSATU)


LRA Amendments
Essential Services

Section 13 of the LRAB introduces a new section 71A, which
provides for a new category of essential services workers
under the category of "public officials exercising authority in
the name of the State".
In so doing it lists "customs officials, immigration officers,
judicial officers and officials working in the administration of
justice" under this category and deems them to be an
essential service.


LRA Amendments
Dispute Resolution and Dismissals in the Public Interest

 Section 26 of the LRAB replaces the current section 150.
 The Commission may "offer" to resolve a dispute that has
not been referred to it, if this would be in the public
interest.
 Both parties in this case would need to agree to the
appointment of the Commissioner.
 The amendment removes the voluntary nature of the
provision since neither party needs to consent.


LRA Amendments
Dismissal of High Earning Employees

188B into the LRA, which states that an employee who
earns over an amount to be determined by the Minister
and whose dismissal is not automatically unfair will be
deemed to fairly dismissed and in accordance with a fair
procedure.
Provided three months’ notice or three months
compensation was paid.
A longer period can be set out in a contract of
employment.


LRA Amendments
Dismissal of High Earning Employees

The Minister must consult NEDLAC as to the amount in this
section. This section will initially only apply to new contracts
of employment but after two years will apply to contracts
concluded prior to the commencement of the LRAB.


LRA Amendments
Dismissals Based on Operational Requirements

S189 and 189A of the LRA, with the latter being
applicable to employers employing more than 50
employees.
Section 39 of the LRAB amends this by inserting a
new paragraph 189A(2)(d), which provides that a
"consulting party should not unreasonably refuse to
extend the period of consultation" this would ensure
meaningful consultation.


LRA Amendments
Date of Dismissal

 Section 190 of the LRA regulates the issue of determining
the date of a dismissal. Section 40 of the LRAB inserts a
new paragraph 190(2)(d), which clarifies the date of a
dismissal if an employee is dismissed on notice.
 The effective date will now be the date on which the
notice expires unless "all outstanding salary" is paid on an
"earlier" date, in which case this earlier date will be the
date of dismissal.


LRA Amendments
 Distinction is drawn between workers who provide
"temporary services" and those who do not.
 Those considered to be providing temporary services will
be subject to the principle of joint and several liability -
similar to section 198.
 In other cases the true employer (client) will be deemed to
be the employer.
 Workers earning less than the BCEA threshold of R172 000,
are only considered employees of a labour broker if this
involves "temporary services".


LRA Amendments
Temporary services entail the following:

 Work not exceeding a six month period;
 Substituting for an employee who is away temporarily,
although the period is undefined; and
 Categories of work as defined either through a bargaining
council agreement or sectoral determination.


LRA Amendments
ON FIXED TERM CONTRACTS - S186(1)( b)

 Separate amendment to which addresses rights around
dismissals for employees subject to fixed term contracts
(See section 35 of the LRAB), which inserts a new
paragraph 186(1)(b)(ii).
 Under the existing provision it constitutes a dismissal where
a fixed contract employee reasonably expected a renewal
of the contract on the same or similar conditions and the
employer failed to renew the contract or offered a renewal
on less favourable terms. - Now..


LRA Amendments
FIXED TERM CONTRACTS

 Amendment - dismissal where the employee
reasonably expected to be offered an indefinite
contract, and either no such offer was made or it was
offered on less favourable terms.
 Courts have tended to make findings that such
employees only have an expectation of another
limited duration contract – will no longer be the case.


LRA Amendments
FIXED TERM CONTRACTS
 An employee may only be engaged on a fixed term
contract for a period longer than 6 months only if the
nature of the work entailed is of a limited duration and
there is a justifiable reason for fixing the contract.
 Fixed term contract employees employed for longer than
six months must not be treated less favourably than those
employed on a permanent basis.
 Justifiable reasons for engaging workers on a fixed terms
beyond six months are contained under section 198B(4)
of the LRAB and include variously substituting for another
worker, being engaged through a public works scheme,
the performance of seasonal work.

LRA Amendments
 FIXED TERM CONTRACTS

 The new restrictions on fixed-term contracts will not
apply to small businesses or start-ups.
 Terminating employment before the end of the six-
month period to avoid having to treat them the same
as a full-time employee will be regarded as a dismissal.


LRA Amendments
ON PART TIME CONTRACTS

 Benefits for part time workers under section 198C entail :
 Their treatment may on the whole not be less favourable
than conditions for a comparable full-time employee;
 Access to training and skills development should on the
whole not be less than favourable than those applicable to
a comparable full-time employee; and
 The same access should afforded to apply for vacancies
as would be applicable to full-time employees.


LRA Amendments
Regulating contract work -

Amendment aims to stop the practice of repeated
contracting for short-term periods.
The onus will be on employers to justify the use of short-
term or fixed term contracts, in place of contracting
employees on a permanent basis.
DOL is introducing a new Employment Services Bill which
will address both Private and Public Employment
Services.


LRA Amendments

S 198A now reads:

 “An employee deemed to be an employee of the
client in terms of subsection (3)(b) must be treated on
the whole not less favourably than an employee of the
client performing the same or similar work, unless there
is a justifiable reason for different treatment.” (After 6
months).
 Does not apply to employees who work less than 24
hours a month.

LRA Amendments
 Section 198A: Temporary employment services can
only be engaged for up to six months by businesses
that employ more than 10 people or businesses that
employ less than 50 people but have been in
existence for less than two years.
 Section 198B: Contract work is limited to six months
unless an employer can prove the need for longer
term contracted employment.
 Section 198C: Temporary workers should be treated,
on the whole, no differently to permanently employed
workers.

LRA Amendments
Liability for Employer's Obligations

 Section 46 of the LARB inserts a new section 200B into the
LRA, which broadens the definition of "employer" to
include:
 "persons who carry on associated or related activity or
business by or through an employer if the intent or effect
....is to defeat the purposes of the Act or any other
employment law".


LRA Amendments
Review of arbitration awards and rulings

(7) The institution of review proceedings does not suspend the
operation of an arbitration award, unless the applicant furnishes
security to the satisfaction of the Court in accordance with
subsection (8).
(8) Unless the Court directs otherwise, the security must –
(a) in the case of an order of reinstatement or re-
employment, be equivalent to 24 months remuneration;


LRA Amendments
Review of arbitration awards and rulings

(b) in the case of an order of compensation, be equivalent to
the amount of compensation awarded.

(9) An application to set aside an arbitration award in terms of
this section interrupts the running of prescription in terms of the
Prescription Act (Act No.68 of 1969) in respect of that award.”


Basic Conditions Of
Employment
Amendment Bill,
2012


BCEA Amendments
 To prohibit employers requiring employees to
make payments to secure employment and
requiring employees to purchase goods, services or
products in certain circumstances;
 To extend the prohibition on work by children to
children engaged to work as independent contractors
S43;
 To adjust the powers of the Minister of Labour in
respect of making sectoral determinations;


BCEA Amendments

 To revise and streamline the system for enforcement by
labour inspectors;
 To increase the penalties that can be imposed for
offences involving child labour or forced labour;
 To adjust that maximum fines that can be imposed for
breaches of the Act not involving underpayments.


BCEA Amendments

 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.
 Child labour - Amendments are proposed to align
the Basic Conditions of Employment Act with
South Africa's international law obligations in
terms of the International Labour Organisation
Convention (No. 182) on the Worst Forms of
Child Labour.

BCEA Amendments

 Strengthening the power of the inspectorate -
Contraventions of certain provisions in monitoring and
enforcement of the Act are criminalised which will
enhance the effectiveness of the inspectorate.
 The Bill further seeks to impose heavy penalties for
offences and contraventions of the provisions of the Act
as well as increased prison terms for employers that do
not comply.


BCEA Amendments

" 'contract of employment' means—
(a) a common law contract of employment; or
(b) any other agreement or arrangement under
which a person agrees to work for an employer but
excluding a contract for work as an independent
contractor;“


Employment Services
Bill –


Employment Services Bill
 Employment Services Bill - legal framework that it
provides for the operation of employment services;
 Transfer of the skills development functions to the
Department of Higher Education and Training;
 Previously, the employment services were provided
for in the Skills Development Act which is now the
mandate of the Department of Higher Education
and Training;


 Relevance to labour broking as it makes provision for
the regulation of temporary employment services by
government;
 The Bill seeks to provide a legal status for Employment
Services after the transfer of the Skills Development
functions to the Department of Higher Education and
Training (DHET);
 The Bill also provides a legal status for the Sheltered
Employment Factories administered by the Department
and Productivity SA.


 The Bill defines the role and core functions of public
employment services including governance arrangements via
an Employment Services Board.
 Decent work schemes to promote youth employment;
 Promotion of employment of people with disabilities;
 Employment promotion schemes to respond to economic
recession, company closures and pending retrenchments or
lay-offs;
 Regulation of employment of foreign workers;
 Private Employment Agencies - provision is made for the
registration and licensing of Private Employment Agencies for
placement and their regulation by the department.

Employment Equity
Amendment Bill-


EEA

 To amend the EEA to comply with ILO standards;
 Promote equity and equality;
 Increase fines; and
 Align the EEA with other pieces of legislation.


EEA
Designated employees
 All citizens are included - even if born after 1994
in South Africa.
 Citizens by way of naturalisation before 27 April
1994;
 Foreign nationals who were not entitled to
citizenship by 27 April 1994 are still excluded.
 Independent contractor - now defined as a person
who works for another or supplies a service to
another as part of his/her business, undertaking or
professional practice.

EEA
Unfair treatment

 Equal pay for work of equal value;
 Equal pay for equal value;
 Prohibits unfair discrimination and harassment;
 Unfair for an employer to differentiate between
employees remuneration where those employees
provide work of the same or substantially the same
or equal value – burden on employer


EEA
Burden of proof
 The burden of proof will be on the employer to show
that the differentiation is in fact based on fair reasons:
i.e. experience, skill, responsibility and qualifications. -
The bill does not prohibit differentiation. It must be based
on an unfair discriminatory reason before it can be
sanctioned under the bill.
 The burden of proof in the Promotion of Equality and
Prevention of Unfair Discrimination Act.


EEA
Burden of proof

 An employee must only make out a prima facie case of
unfair discrimination.
 The employer must then prove that no discrimination
took place or if discrimination did take place that it was
not on one of the prohibited grounds of section 6(1).


EEA
Psychometric testing & Dispute Resolution

 Only psychometric tests that have been certified by
the Health Professions Council can be used in
assessment tests.
 Dispute resolution
 Employees earning below the threshold of section
6(3) of the BCEA to refer a dispute to arbitration in the
CCMA after conciliation.


EEA
Sanctions

 The sanctions in the bill have been simplified -easier
for the Director General to impose sanctions on the
employer for not following the EEA.
 Section 20 dealing with the EE plan is amended by
adding a clause allowing the DG to apply to the
Labour Court to impose a fine on an employer who
fails to prepare and implement an EE plan.


EEA
Reporting, Monitoring and enforcement – S 21
 No longer a distinction between employers with 150
employees and less - all designated employers must now
submit its first report within 12 months of becoming a
designated employer and thereafter submit annually.
 Reports must contain the prescribed information and signed
by the CEO.
 A new clause is added to require employers who cannot
submit to inform the DG by end of August if the employer
cannot submit a report in a particular year.
 If the employer fails to submit or the DG does not accept
the reasons it can apply to the Labour Court to impose a
fine on the employer.

EEA
FINES
 Reporting to the ECC on occupational categories
has been deleted - employers must only report on
the occupational levels.
 Failure to comply with section 27 can result in a
fine of between 2 and 10% of annual turnover.
 Section 36 dealing with the undertaking of the
employer to comply with a labour inspector’s
request has been deleted.


EEA
Enforcement
 Simplifies the enforcement process.
 Labour inspectors can still enter, question and inspect
the employment equity actions of employers – no
need for an undertaking any more.
 Labour inspectors immediately issue a compliance
order in terms of the new section 37(1) if the
employer failed or refused to consult, conduct an
analysis, publish a summary of its report, assign
responsibility to a senior manager, inform its employees
of the EEA, maintain records and prepare and
implement an EE Plan.www.cimap.co.za
11/17/2012 56

EEA
National and regional demographics

 Employers cannot choose between national and
regional demographics any more. Sub section 42(a)
(1) has been changed to “demographic profile of the
economic active population”.
 Part of the assessment also now includes reasonable
steps by employers to train suitably qualified people
from designated groups.


EEA
Reasonable “efforts”

 Reasonable “efforts” has also now been substituted
with “steps” making it stricter as efforts seems not to
be acceptable any more. The accessible pool,
economic factors of the industry and the employer
and the progress of other employers has been
deleted.
 It seems that this clause is becoming stricter as several
of the reasons accessible to employers as to why they
are not complying, have now been deleted.

EEA
Review process

 The review process of section 43 and 44 mainly
remains the same, however if the employer fails to
comply with a request or recommendation by the DG,
the DG may apply to the Labour Court for an order to
comply or a fine.
 Any challenge to the validity of the DG’s request or
recommendation may only be made by the employer
in the process instituted by the DG in the Labour Court.


EEA
Positive obligation

 In terms of the current EEA, a designated employer has
a positive obligation to find and eradicate unfair
discrimination.
 In terms of the new sub section 27(2) another
positive obligation has been added to take measures
to progressively reduce any disproportionate income
differentials subject to guidance by the Minister on
reducing income differentials.

EEA
Labour Brokers
The section dealing with labour brokers has been
repealed.
Schedules
Schedule 1 is amended by substantively increasing fines.
Section 27 is added and contravention of various of the
sections of the EEA will attract fines of between 2 to 10%
of turnover of the employer. The turnover threshold of
designated employers, schedule 4, is also amended by
increasing agriculture from 2 million to 5 million.


EEA
Summary - EEA
 The these amendments aim at reducing income
differentials;
 Places an obligation on the employer to investigate
and eradicate disproportionate income differentials
and move towards equal pay for work of equal
value;
 Employers who do not comply with this can be fined
by the DG and the Labour Court anything between 2
and 10% of its annual turnover.

Thank you


Labour Law Amendments 2012: Key Changes to LRA

Recommandé

Recommandé

Contenu connexe

Tendances

Tendances (18)

En vedette

En vedette (20)

Similaire à Labour Law Amendments 2012: Key Changes to LRA

Similaire à Labour Law Amendments 2012: Key Changes to LRA (20)

Plus de CIMAP

Plus de CIMAP (12)

Dernier

Dernier (20)

Labour Law Amendments 2012: Key Changes to LRA