Labour law amendments

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Labour Law Amendments
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Background
? Process
? Review of Labour Laws Announcement - 1999
? Bills published for comment July 2000
? NEDLAC negotiation process conclusion August
2001
? Bills tabled in parliament October 2001
? Parliament passed bills February 2002
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Government Policy Imperatives
? Amendments needed to address policy
imperatives of Government
? create jobs
? promote develop small business
? improve protection of vulnerable workers
? stimulate investment eradicating negative
perceptions of investors
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Objectives of amendments
? Improvement in application of LRA and BCEA
? To correct practices that undermined the
application of these acts (unintended
consequences)

• ? Ensuring effective alignment of laws with
• changing labour market environment.

? Sensitize legal framework to the need for Job
creation
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Main Areas of Amendments
? Amendments divided into 4 areas

• Collective Bargaining and Bargaining Councils

• Dispute resolution

Retrenchments
4. Rights Responsibilities of
employers workers

• Conditions of employment and contractual
  relationships

Business transfer Insolvency
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Collective Bargaining and Bargaining Councils
? Bargaining Council agreements similar
enforcement way to BCEA enforcement
? Simultaneous with amendments notice
stipulating fines that CCMA arbitrators may levy
published in regulations
? Bargaining Councils - advise Registrar of
Labour Relations annually on involvement of
small business in that council (Section 54)
? Registrar of Labour Relations increased power
overseeing conduct of councils affairs (Section
54) also ascertaining representivity
? Registrar of Labour Relations greater
authority to register or not applicant as
a Trade Union or Employer Organisation
? Registrar must be satisfied that they are a
genuine organization
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Dispute resolution
? Continuous process of Conciliation and
arbitration in all probation disputes and
all dismissal disputes relating to
misconduct and incapacity (Section 191(5)A)
? Consent or Contract by employers and workers to
have final and binding disciplinary hearing
conducted by CCMA commissioner (Section
188A)
? CCMA director enjoined to make arbitration
awards of CCMA, Bargaining councils or accredited
agency arbitrators orders of the Labour
Court
? Probationary period clarified employers need
to meet lower burden of proof
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? Commissioners given discretion as to amount of
compensation that may be awarded for
dismissal, limited to 12 months (Section
194)

• Nature and limit of compensation to be awarded
  for unfair labour
• Practices clarified

• Bargaining Council Arbitrators given similar
  powers to CCMA
• arbitrators

• Labour Relations Act aligned to Protected
  Disclosures Act It is
• automatically unfair for a worker to be
  dismissed for making
• such a disclosure

• CCMA Governing Body empowered to make rules
  and
• processes regulating its functions
  including CCMA
• representation and charging fees for
  services

• Governing Body agreed on set of rules and
  alignment and
• refinement of all CCMA forms

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Rights and responsibilities of employers and
workers Retrenchments, transfer of business and
insolvency
? Retrenchments
? Distinguished on whether they deal with
individuals, small enterprises or large
enterprises
? Amendments deal with the following areas
? Section 189 amendments
Parties are obliged to
? engage in meaningful interaction or Joint
consensus seeking process and attempt to reach
consensus on
? Disclose information - employers duty to show
why information is not relevant
? Disclosure of information disputes may be
decided by either Labour Court or CCMA
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Section 189A amendments
? CCMA facilitation may enhance process of
consultation
? Regulation and amendments published
simultaneously for the process of conduct
of such facilitations
? After consultation workers may elect to strike,
OR refer matter to the Labour Court for
adjudication
? Labour Court may decide on fairness of dismissal
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? Workers may request Labour Court to compel
employer to comply with procedures
? Strikes to be conducted in terms of section 64
? Secondary strikes permitted on 14 days notice,
CCMA can be requested to intervene on
request from employer
? Individuals may elect to go to Labour Court or
CCMA for dispute determination
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Transfer of a business
? Section 197 revamped
? Sale of business as going concern new
employer takes over contracts of employment
from the old
? Continuity not interrupted happens
automatically
? New employer to employ on conditions on the
whole not less favourable
? If Collective agreement decided terms those
terms prevail
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? Old employer obliged to take reasonable steps
to ensure capability of new employer to
meet benefits of old employer
? Pension funds may be transferred should be
reasonable and equitable
? Workers entitled to effective disclosure of
information in transfers
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Insolvency
? BCEA
? Severance pay entitlement for workers
contracts terminated due to insolvency
(Section 41)
? Employer and employee contributions to benefit
funds to be paid over within 7 days
(Section 34A)
? LRA Section 197B
? Notification of Trade Unions or employers of
legal proceedings that may result in
insolvency
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? Insolvency Act
? Long term amendments envisaged to various acts
including Companies Act and Close Corporations Act
? Short term amendments to Section 38 of
Insolvency Act include
? Suspension of workers contracts on insolvency
instead of immediate termination
? Consultative process with workers or
representatives to explore options of
saving the business
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Conditions of Employment and Contractual
Relationships
? Reduction of notice periods to 1 week for
workers who have only worked up to 6 months
? Collective agreements may not reduce notice
periods to below 2 weeks if worker worked
for over 1 year
? Collective agreements can increase overtime
hours worked per week to maximum of 15
hours for periods up to two months within a
12 month period
?
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? Minister may increase 45 hour week if
resultant working time arrangements are
more favourable where
? It is a collective agreement
? It is necessitated by operational
requirements(e.g. in Maritime sector)
? In respect of the private, security or
agricultural sectors
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? Minister can determine definition of
remuneration after consulting NEDLAC for
purposes of calculating notice, severance
annual leave pay
? Speedier stronger enforcement processes
? Business Labour on Employment Conditions
Commission may appoint alternate delegate
? Wage determinations deemed to be sectoral
determinations - small business determination
supercedes wage determinations
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Employees vs. Independent Contractors
? Section 200A of LRA and Section 83A of BCEA
? Series of Rebuttable presumptions created as to
who is an employee, which applies to all
workers earning below R90 000,00 per year
? Employers duty to demonstrate why they should
not be so considered
? CCMA will issue advisory award on application
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Department Of Labour (and CCMA)
? Operationalise the amendments to achieve set
objectives
? Rigorous provincial stakeholder briefings
? Training on aspects of amendments
? Enforcement of the relevant sections
? Monitor and evaluate progress and impact
? Published all regulations and CCMA rules in
same GG
? Revised the Know your LRA
? Briefing pamphlets and new BCEA summaries
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Labour Law Amendments
THE END
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