In 2011 I alerted readers to four new labour bills set to bedevil employers and likely to further discourage employment. These have now been followed up with two more bills. The new LRA amendment bill’s intentions are that:
• members of minority trade unions will be able to elect shop stewards.
• Labour broker employees will be able to exercise their trade union rights at the premises of the broker’s client.
• employers falling under bargaining councils will fund dispute resolution.
• unlawful strike action including violence and intimidation will be reduced.
• a ballot will be required before a protected strike or lock-out may begin.
• conduct in breach of a picketing agreement or picketing rules will not enjoy protection against civil legal proceedings.
• the Labour Court will be able to make orders for the compliance with or variance of picketing rules/agreements
• minimum service agreements be implemented in essential services.
• the CCMA be empowered to provide administrative assistance to lower paid employees in serving CCMA documents on employers
• the CCMA be empowered to regulate the rights of parties to be represented in proceedings before the Commission.
• Arbitration awards certified by the Commission can be presented to the Deputy-Sheriff without the involvement of Labour Court writs.
• the need to have an arbitration award for reinstatement made an order of the Court before contempt proceedings can be commenced be removed.
• applications for rescission on grounds of good cause may be brought before the CCMA.
• the operation of an arbitration award would be suspended if financial security is provided by the applicant for a Labour Court review
• employees engaged for a fixed term could claim dismissal on
expiry of the term whether they have a reasonable expectation of continued temporary or permanent employment.
• section 187(1)(c) of the LRA be amended to prohibit the dismissal of employees for reason of their refusal to accept a demand by the employer over a matter of mutual interest (e.g. a change in working hours).
• employers be permitted to dismiss senior executives (earning above a threshold to be determined) under certain circumstances without having to comply with the normal requirements of the LRA
• the CCMA will have jurisdiction to arbitrate disputes about retrenchments involving employers employing less than 10 employees.
• labour brokers will not be able to supply employees to clients for longer than 6 months unless the employees are hired to do genuine and relevant temporary work
• lower income employees of labour brokers will become employees of the client if they are employed to perform work over a period in excess of six months and be paid the same wages and benefits as the client’s other employees who are performing the same or similar work.
• Employers may not employ staff on fixed term contracts for longer than 6 months unless the nature of the work for which the employee is engaged is of a limited or definite duration or the employer can demonstrate any other justifiable reason for fixing the term of the contract. The bill sets out a non-exhaustive list of ten justifiable reasons for fixing the term of a contract.
• if a fixed term of longer than 24 months can be justified under the
law, the employer must, on expiry of the contract and subject to the
terms of any collective agreement regulating the issue, pay the employee
one week’s remuneration for each completed year of the contract.
• contractors and their clients will have joint and several liability for any failures to comply with the LRA or any employment law.
The new BCEA amendment bill’s intentions are that:
• Employers be prohibited from accepting any payment from any employees or potential employees in respect of their employment or the allocation of work
• the Minister may issue an “umbrella” sectoral determination covering employers and employees who are not covered by any other sectoral determination or by a bargaining council collective agreement and may prohibit the subcontracting of work, prescribe minimum pay increases and set a threshold of representativeness for a registered trade union to have the organizational rights of access to employer premises and deduction of trade union subscriptions
• bottle-necks and delays in the labour law enforcement process be removed.
• the right of the employer to lodge objections with the Director -General concerning a compliance order be removed from the Act. Any objections that employers have to compliance orders, uncontested by the Department of Labour, will now be adjudicated by the Labour Court.
I will go more deeply into the ramifications of these far reaching amendments in my next articles.
Contributing Author: lvan lsraelstam, Chief Executive of Labour Law Management Consulting