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LABOURRELATIONS

AMENDMENT ACTNO 6 OF 2014

Prepared by CLSO

Abbreviations/ Acronyms

BC: Bargaining CouncilCCMA: Commission for Conciliation, Mediation &

ArbitrationESC: Essential Services CommissionLAC: Labour Appeal CourtNEDLAC: National Economic Development and Labour CouncilTES: Temporary Employment Service

Common name (Labour Broker)

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Collective Rights

Section 21• Background

– Difficult for trade unions to organise where high levelof temporary employees

• Amendment– New test element that commissioners must consider– Unions can obtain additional rights

• Qualified• Normal strike permission still needed

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Collective Rights

Section 22• Background

– Previously unclear if client’s premises could be seen asworkplace for exercise of collective rights

• Amendment– Makes it clear that any Chapter III reference to

employer’s premises read as including client’s premises– Speaks to rights and interest affecting third parties via

arbitration award

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Collective RightsSection 32• Background

– Amendments were required to address efficiency issuesassociated with BCs

• Amendment– Improves the efficiency of the exemption procedures

associated with BC concluded collective agreements– Ensures independence of the exception appeal body– Requires consultation with the public– Representation factors extended– Consequential section 49 amendment

• Certificate specifying level may be taken into consideration forrelated purposes, i.e Minister considering agreement extension

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Picketing Rules

Section 69• Background

– Trade Unions who arrange pickets for their members infurtherance of a strike or which is in opposition to alock-out, may encounter problems in that thatpremises at which a picket is to take place, does notbelong to the employer.

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Picketing Rules

Section 69(6)• Amendment

– Now includes that the Commission in establishingpicketing rules, may make provision for picketing in aplace which is outside the employer premises andowned by another person as long as the other personhas been afforded an opportunity to makerepresentations to the Commission.

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Picketing Rules

Section 69(12)-(13)• Background

– Sub-section (11) only states that a dispute aboutpicketing rules may be referred to the Labour Court butdoes not refer to any types of relief.

• Amendment– Sub-section 69(12) is inserted to allow the Labour

Court to grant certain relief: urgent relief, an orderdirecting parties to comply with picketing agreementor rule or variation of picketing agreement or rule.

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Picketing Rules

• Amendment– Sub-section 69(13) sets time requirements for the

Labour Court.– If an Applicant seeks an order directing compliance

with a picketing agreement, then 48 hours notice tothe Respondent must elapse before the Labour Courtmay grant relief.

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Essential Services Committee

Section 70• Background

– There is a negative perception about the functioningand administration of the Essential Services Committee(ESC) which operates under the auspices of theCommission.

– There are also numerous problems with the system ofdispute resolution in essential services.

– Section 70 completely overhauled (70A-70F)

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Essential Services Committee

• Amendment– 70A: Composition of ESC– 70 B: Powers and functions of ESC– 70 C: Appointment panels– 70 D: Powers and functions of Appointment panels– 70 E: Jurisdiction of ESC– 70 F: Regulations of ESC

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Minimum Services

Section 72:• Background

– Section 72 replaced by a new section 72. The currentsection does not deal with minimum services in acomprehensive manner

• Amendment1. The ESC Panel-orders parties to negotiate a Minimum Services Agreement

(MSA) within a specified time allows parties to refer to Commission if time line not met

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Minimum Services• Amendment

2. The ESC Panel-can decide Minimum Services if partiesfail to conclude a collective agreement or thecollective agreement is not ratified.

3. If ESC Panel act in terms of (2), the determination ofwhat constitutes minimum services is binding onemployer and employee. Parties cannot refer adispute to the Commission in this regard.

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Minimum Services• Amendment

4. The determination by the ESC Panel as to what is aminimum service remains valid until it is revoked bythe ESC and cannot be varied or revoked for a periodof 12 months after it is made.

5. Only if the ESC has made a decision iro what is aminimum service may a party refer the matter to adispute forum.

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Winding up of trade unions /Employers Organisations

Section 103A: Appointment of an Administrator• Background

– In cases where a trade union / employers organisation iswound up, the Labour Court has to appoint a Liquidator.

• Amendment– The amendment allows the Labour Court to appoint an

Administrator as the first step.– A person such as Commissioner may be appointed to

administer the affairs of a trade union/ employersorganisation.

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Winding up of trade unions

Section 103A: Appointment of an Administrator• Amendment

– The amendment allows an administrator to beappointed on the basis that a trade union/ employersorganization materially fails to perform their functionor because of financial mismanagement

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Winding up of trade unions

Section 103A: Appointment of an Administrator• Amendment

– The fees paid to an Administrator is decided by theRegistrar of the Labour Court.

– The Labour Court may terminate the appointment ofan Administrator if he/she is not longer needed.

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Operation of Registrar Decision

Section 111• Amendment

– Addressing issue of operation of Registrar’s decisionwere challenged by trade union or employer’sorganisation

– Appeal does not suspend operation of decision• ILO Standards

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CCMA Rules

Section 115• Background

– Need to• empower Commission• clarify rules regulating right of parties to be represented

• Amendment– Commission can make rules to regulate consequences

of party failure to attend conciliation/arbitration– LAC interpretation of CCMA rule-making power

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Enforcing Arbitration Awards

Section 143• Background

– Need to streamline mechanisms for enforcing arbitrationawards

• Amendment– Presumption: as if order of the Labour Court

• Exception advisory– Contempt proceedings to enforce

• exception money– If payment require, enforced/executed as if order of

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Variation of Arbitration Awards

Section 144• Amendment

– Expands discretion of Commission• Variation / rescission of arbitration awards and rulings

– Brings certainty (case law)– Absence of any party

• “good cause shown”

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Review Applications

Section 145• Background

– Frivolous applications brought to frustrate the system

• Amendment– Reduce number or frivolous applications– Expedite finalisation of applications– To prevent delays by applicants

• Within 6 months

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Public Interest Intervention

Section 150• Amendment

– Empowering provision– Extends and regulates circumstances in which CCMA

(director authorised) may intervene (conciliation)• At request• Public interest

– Intervention does not affect strike / lock-outentitlements

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Meaning of Dismissals

Section 186• Background

– The ambit of dismissals in respect of contracts ofemployment has evolved over time. The amendment isdesigned to bring the section in line with case law or tostrengthen certain positions.

• Amendment– (1)(a)- An employer has terminated employment with

or without notice (contract deleted)

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Meaning of Dismissals

Section 186• Amendment

– (1)(b)- The legitimate expectation of renewal ofcontract has been extended to include legitimateexpectation to be retained in employment indefinitely(permanent employment).

– 1(e) and (f) the word contract is deleted.

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Lock-Outs

Section 187• Background

– Court cases interpreted contrary to legislative intentand the purpose of the Act

• Amendment– Removed anomaly in s 187(1)(c)– Protect the integrity of the process of collective

bargaining

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Disciplinary Enquiries

Section 188A• Background

– Previously referred to as pre-dismissal enquiries

• Amendment– Promote enquiries by arbitrators

• Avoid need for both enquiry and arbitration hearing

– Aligns with Protected Disclosures Act, 2000• Reduces risk of collateral litigation (High Court)

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Extension(Retrenchment)

Section 189A• Background

– Uncertainty regarding application (specificallysubstantive fairness test)

• Amendment– Precludes party from unreasonably refusing

consultation period extension– Empowering provision: discretion of the court

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Dismissal Date

Section 189A• Background

– Uncertainty regarding calculation of dismissal date

• Amendment– Creates certainty

• Date of notice, or• Date on which salary paid

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CCMA Jurisdiction(Operational Requirements)

Section 191• Background

– Need identified to• clarify procedural issues relating to operation requirement

dismissals (retrenchments)• allow for cheaper & less formal adjudication

• Amendment– Clarifies arbitration in case of only one employee– CCMA jurisdiction to arbitrate disputes about

operational requirement dismissals (small employees)30

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Temporary Employment Services

Section 198• Background

– When a person is employed through a TES, the personis deemed to be the employee of the TES.

– The Client and TES are jointly and severally liabletoward the employee if the TES contravene a collectiveagreement, binding arbitration award or basiccondition of employment [current 198(4)]

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Temporary Employment Services

Section 198(4A)• Amendment

– New 198(4A) inserted. Section regulates the extent towhich the TES and the Client are severally liable towardthe person rendering the service (employee).

– Employee can institute proceedings against bothparties (TES and client) or either or them

– A labour inspector may seek a compliance orderagainst the TES and client or either of them

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Temporary Employment Services

Section 198(4A)• Amendment

– Order/Award enforceable against both parties– A TES must provide employment particulars as

required by section 29 of the BCEA. (this will apply 3months after the amendment act comes into force topersons who have been contracted by a TES prior tothe date of commencement)

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Temporary Employment Services

Section 198(4A)• Amendment

‒ An employee cannot be employed by a TES incontravention of labour law.

‒ In any proceedings brought by an employee the labourcourt or arbitrator may determine whether theemployee is employed in contravention of an labourlaw.

‒ No person can operate as a TES unless registered as aTES in terms of legislation

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Temporary Employment Services

Section 198(A)- Below the earnings threshold• Background

– Persons who find employment through a TES, usuallyfind themselves in situations where they earn less thanperson who are employed and doing the same workfor the same employer.

– TES placements continue for long periods and incertain cases used to evade labour law legislation.

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Temporary Employment Services

Section 198(A)- Below the earnings threshold• Amendment

‒ New section limits the scope of “temporary service” to:‒ A period not longer than 3 months‒ Substituting for an employee who is absent (maternity

leave etc)‒ As set out in a collective agreement concluded in a

bargaining council

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Temporary Employment Services

Section 198(A)- Below the earnings threshold• Amendment: New sub-sections (3) and (4)

‒ If person is performsca temporary service for a clientin terms of section 198A(1) that person is theemployee of the TES.

‒ If the employee is not performing a temporary servicein terms of 198A(1) then the person is an employee ofthe Client.

‒ If Client terminates contract to avoid the effect of thesub-section, it is a dismissal

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Temporary Employment Services

Section 198(A)- Below the earnings threshold• Amendment: New sub-section (5)

‒ Persons who become employees of a Client cannot betreated less favourably than the Client’s othersemployees performing the same or similar work

‒ New sub-section (6), the Minister must call forsubmissions from public when deeming categories ofwork “temporary services”.

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Temporary Employment Services

Section 198(A)- Below the earnings threshold• Amendment: New sub-section (7) and (8)

‒ NEDLAC must be consulted by Minister whenpublishing a notice in respect of a sectoraldetermination.

‒ 198A applies to employee who services were procuredprior to the coming into operation of the amendment,3 months after the amendment enters into force.

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Fixed Term Employment

Section 198(B)- Below the earnings threshold• Background

– In order to eliminate the abuse of keeping employeeson fixed term contracts over lengthy periods time forno justifiable reason.

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Fixed Term Employment

Section 198(B)- Below the earnings threshold• Amendment: New section 198B sets the scope of

whe a “fixed term contract” terminates, on‒ The occurrence of a specified event‒ The completion of a specific task or project‒ A fixed date as provided for in sub-section 3, other

than retirement.

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Fixed Term EmploymentSection 198(B)- Below the earnings threshold• Amendment

‒ Sub-section 198B(3) and (4) (a)-(i)sets out variousscenarios;

‒ Nature of work limited‒ Another justifiable reasons‒ Sub-section (4) justifiable if‒ Replacing someone temporary‒ Volume of work‒ Student graduate being trained‒ Specific project

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Fixed Term Employment

Section 198(B)- Below the earnings threshold• Amendment:

‒ Sub-section (5)‒ If an employee renews a fixed term contract in

contravention of sub-section (3), the employment willbe considered to be indefinite term.

‒ Sub-section (6)‒ An offer of fixed term contract must be in writing and

set out the reasons for the fixed term contract.

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Fixed Term Employment

Section 198(B)- Below the earnings threshold• Amendment

‒ Sub-section (7) and (8)‒ If there is a dispute about a fixed term contract, the

employer must prove that a justifiable reason exists fora fixed term contract

‒ An employee who is employed longer than 3 monthsmust not be treated less favourably than an employeewho is permanent doing the same or similar work.

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Fixed Term Employment

Section 198(B)- Below the earnings threshold• Amendment: Sub-section (9)

‒ At the time when the amendment act enters into forcean employee must give fixed term contract employeesequal opportunity to apply for vacancies.

‒ Sub-section (10) when fixed term contracts are usedfor periods longer than 24 months, at the end of thecontract the employee must be paid 1 week’sremuneration for each completed year of the contract... (Section 35 of BCEA)

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Fixed Term Employment

Section 198(B)- Below the earnings threshold• Amendment:Sub-section (11)

‒ The termination payment contained in sub-section 10is not applicable if prior to the termination of the fixedterm contract, the employer offers continuousemployment or secures employment with anotheremployer on same or similar terms, and theemployment commences at the expiry of the contract.

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Part-Time Employment

Section 198(C)- Below the earnings threshold• Background

– Seeks to regulate part-time employment of vulnerableworkers and that part-time employees should betreated less favourable than employee in permanentemployment.

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Part-Time Employment

Section 198(C)- Below the earnings threshold• Amendment

‒ Part-time employees are remunerated according to the“time” worked and cannot be treated less favourablythan full-time employees

‒ Part-time employees should be given access to trainingand skills development as would full-time employees

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Disputes about types ofemployment

Section 198(D)• Background

– This section was inserted to provide for the disputemechanism in respect of the new sections inserted intothe LRA.

• Amendment– Disputes about interpretation of 198A to 198C can be

referred to the Commission, a bargaining council and ifnot resolved to arbitration

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Disputes about types ofemployment

Section 198(D)• Amendment

‒ The different treatment of employees in respect ofsections 198A to 198C is justifiable in respect of

‒ Years of long service‒ Merit‒ Quantity and quality of work

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‘Employee’ Presumption

Section 200A• Amendment

‒ Presumption extended to cover this act and any otheremployment law, as well as section 98A of theInsolvency Act, 1936

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Employer Liability

Section 200B• Amendment

‒ Broadens meaning of “employer” for purposes of theAct

‒ To prevent simulated arrangements / corporatestructures intended to avoid Act application

‒ Makes provision for joint and several liability for non-compliance

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Code of Good Practice

Section 203• Amendment

‒ Empowering Provision: Minister may issue Codes‒ By publication in Gazette‒ IF

• Been tabled and considered by NEDLAC, and• NEDLAC reported unable to reach agreement

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Thank You

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