NEDLAC TABLES REPORT ON LABOUR LAW AMENDMENTS

Nedlac finalised its report on the Labour Law Amendments negotiations in September and this was tabled to Parliament in early October. As is evident from the report, a high level of agreement was reached on a wide range of difficult and complex amendments. The report concludes "the fact that substantive agreement was reached demonstrates yet again the value of social partnership. It also bodes well for the subsequent processes of implementation of the legislation."

LABOUR RELATIONS ACT

The parties achieved several agreements or noted their reservations on the issues as listed below:

Bargaining Councils

Amendments were agreed to in relation to private and public sector bargaining councils to ensure that they service employers and employees better. The negotiations also covered a policy statement on bargaining councils, and agreed that it would be desirable to promote membership of small businesses of employers' associations so that their interests may be represented more effectively in bargaining councils where such bargaining councils have jurisdiction. Membership of such employers' associations would be voluntary. 

Commission for Conciliation, Mediation and Arbitration (CCMA)

The parties agreed that it was desirable to improve the functioning of the CCMA through measures that will, inter alia, simplify CCMA processes, shorten the time taken to process cases and limit the scope for abuse of CCMA resources and processes.

Reservations were recorded by both labour and business in relation to the proposed amendments to Section 115 and Section 138. They proposed that rules in respect of representation at the CCMA, charging of fees and the criteria for cost awards by commissioners should be developed in consultation with Nedlac.

Labour Court

The parties agreed on measures relating to the status of Labour Court judges and the appointment of acting judges.

Unfair dismissals and unfair labour practices (including probation and formal hearings)

Amendments were effected which improve the resolution of disputes in respect of unfair dismissals and unfair labour practices. Labour recorded its reservation on the terms of the compensation to be awarded in the case of an unfair dismissal and also expressed a reservation with the concept of compatibility in relation to probation.

Retrenchments

The parties agreed to a substantial amendment to the current provisions governing retrenchments. Arising out of the negotiations, the following amendments were made to Section 189 and a new Section 189A was inserted to:

• Require the parties facing possible retrenchments to engage in a meaningful joint consensus seeking process;

• Allow parties, if they agree, to request a facilitator from the CCMA;

• Change the onus of proof in disputes regarding disclosure of information;

• Permit industrial action by the parties in accordance with time periods set out in the Act or refer a dispute about whether there is a fair reason for the retrenchment to the Labour Court;

• Require employers to give 30 days notice of retrenchment to individual workers with more than one year's service or a lesser notice period for those with less than one year's service after the time periods for meaningful engagement have been exhausted;

• Allow workers to refer a complaint about procedural fairness to the Labour Court on an expedited basis and allow the Labour Court to compel an employer to comply with a fair procedure;

• Define the grounds that the Labour Court can consider when deciding on the substantive fairness of the retrenchment of workers covered by s.189A. 

Section 189A is only applicable to employers who employ more than 50 employees; and a defined number of retrenchments in any 12-month period depending on the number of employees employed by that employer.

Business, although agreeing to the introduction of the principle of a strike, could not agree with s.189A as in the current Bill. Their areas of concern were fundamental in terms of Business agreeing to the entire section. Labour expressed reservations regarding the operation of the proposed facilitation. 

Transfers of contracts of employment (Section 197)

The parties agreed that the provisions relating to the transfers of contracts of employment should be redrafted for greater clarity, to ensure adequate protection for worker benefits in the event of transfers, and to reduce possibilities for abuse of the provisions.

Independent contractors

The parties recognised that abuse of contractual relationships was occurring on an increasing scale in the labour market including the phenomenon of disguised employment relationships. An amendment to the LRA (s.200A) and BCEA (s.83A) was agreed.

Public service amendments

The parties recognised the need for amendments to align the LRA with changes in the regulation of public service councils and changes to laws that govern the public service.

Labour recorded its reservation in relation to the definition of a workplace in the public service (section 213) and proposed that workplaces should be defined by the Public Services Co-ordinating Bargaining Council.

Other amendments

The parties agreed to a number of other amendments, some technical and others more substantive that are aimed at improving the application of the law.

Among those that were agreed were:

• Giving the Registrar of Labour Relations the power to refuse to register labour organisations that are not genuine (s.95);

• Giving the Registrar greater oversight over the effective functioning of bargaining councils (s.53, s.54);

• Simplifying the processes of de-registration of labour organisations and increasing the powers of the Registrar to wind up and de-register defunct organisations (s.103, s.105, s.106). 

A further proposal was tabled extending the power of the Labour Court to make an order in the event of an unprocedural strike or lock out to any conduct in contemplation or in furtherance of the strike or lock out (s.68).Labour indicated that the amendment to section 68 was receiving careful consideration and it would revert with a position on the amendment during the parliamentary process. 

BASIC CONDITIONS OF EMPLOYMENT ACT 75 OF 1997

Government's proposed amendments focused on two areas: Changing of substantive conditions of employment and improving the application and enforcement of the Act.

The parties agreed amendments which:

• Enable employers and trade unions to conclude a collective agreement to extend the weekly limit on permissible overtime to 15 hours for two months in any 12 month period (s.10);

• Require employers to pay over their contributions as well as deductions made from employees' salaries for benefit funds within 7 days of the deduction being made or the contribution becoming due (s.34A);

• Reduce the minimum notice period to one week during the first six months of employment and provide that a collective agreement may not reduce the notice period below two weeks (s.37);

• Ensure that workers whose contracts of employment are terminated when their employer is sequestrated or liquidated are entitled to severance pay (s.41).

Reservations were expressed in relation to the following amendments:

Payment for work on Sundays 
Labour did not agree to an amendment that would remove the premium for work on Sundays.

Power of the Minister to vary the 45 hour week 
Labour expressed strong opposition to the formulation in the Bill. Business expressed a reservation with reference to the determination only being able to be made where the conditions "are on the whole more favourable". 

Civil and criminal liability of company executives 
Business and Labour proposed that directors of companies should be held criminally and civilly liable if they do not pay over their and employee contributions to benefit funds and the affected workers are thereby prejudiced as a result. Government argued that remedies already exist in criminal law and other legislation. There was no agreement in this regard.

AMENDMENTS TO STATUTES REGARDING INSOLVENCY 

At present, aspects of insolvency are dealt with in several different statutes. The parties agreed that the statutory arrangements currently covering insolvency should be audited in order to ensure that the abuse of insolvency is curbed. Various amendments were agreed to the LRA, BCEA and Insolvency Act that address the problems of workers facing insolvency. The parties also agreed the remainder of the problems should be taken up as amendments to be addressed in the proposed comprehensive Insolvency Amendment Bill to be tabled by the Department of Justice. Labour noted a reservation that should the process of finalising the comprehensive Act be delayed beyond 2002, it would reconsider support for the process and may seek to have the matter dealt with more immediately in Nedlac.