Labour Relations Amendment Bill: concerns on possible inconsistencies with other legislation

Meeting report

Labour Relations Amendment Bill: Concerns about possible inconsistencies with other legislation
Chairperson Landers indicated that the purpose of this meeting was not to interrogate how things may have gone wrong in the drafting of the Labour Relations Amendment Bill (the LRA Bill) but to ensure that whatever problems there might be would be corrected so that the LRA Bill was not in conflict with the Constitution, Superior Courts Bill or any other legislation.

Mr Thembinkosi Mkalipi, Chief Director, Department of Labour, noted that a number of issues were initially identified, that might be problematic but all had been resolved except for two that were still outstanding but on which the officials from the Department of Labour (DoL) and Department of Justice and Constitutional Development (DoJ) had held discussions. Some of the clauses in the LRA Bill that were dealt with in the Superior Courts Bill had since been deleted.

Clause 33 of the LRA Bill related to the appointment of judges to the Labour Appeal Court. Presently, the pool from which such judges may be drawn was limited to High Court judges, with no mention being made of judges of the Labour Court. The Department of Labour was trying to ensure that those with experience in labour matters may be included in the pool of judges. The Superior Courts Bill gave the Labour Court judges the same status as the High Court judges. After discussion by both departments, it was agreed that there was no problem with the amendment sought by the DoL, and clause 33 would be amended. It was agreed that there were no constitutional difficulties with this.

The second issue was in relation to clause 31, which dealt with the Rules Board for the Labour Court. The Minister of Labour, in terms of the amendment, was responsible for the appointment of members of the Rules Board for Labour Courts, and for ensuring that it would meet at least once every two years. The Constitution assigned responsibility for justice matters to the Minister of Justice and there were concerns about the responsibility being transferred to the Minister of Labour. After further discussions, the departments had agreed to recommend that the amendment to clause 31 that would give responsibility to the Minister of Labour not be proceeded with, but it was also agreed that the Rules Board for Labour Courts should nonetheless still be requirement to meet once every two years. The Minister of Justice, in consultation with NEDLAC would henceforth appoint the members of the Rules Board for Labour Courts.

Mr Jacob Skosana, Chief Director: Policy, Department of Justice and Constitutional Development, agreed that the DoJ had maintained that the Minister of Justice was responsible for all matters linked to the administration of justice, and that no other Minister should be empowered to interfere with the proceedings of any court. The Rules Board made general rules for all courts, whereas the Rules Board for the Labour Courts made specific rulings in relation to the Labour Courts, where there were gaps to be filled. It made no sense to have two Rules Boards under two ministers, particularly as the point was to identify and monitor any gaps. The Rules Board, generally, needed to be overhauled as it was based on a1984 piece of legislation, but since there were also different Rules relating to the specialist courts, there was fragmentation. The Minister of Justice made the general Rules,but the Judge President of the specialist courts were entitled to make rules for their courts. The rules could be challenged if they did not advance public interest.

In relation to the requirement that the Rules Board meet every two years, he pointed out that hopefully there would be an overhaul of the Rules Board in the meantime. It was one thing to say that it must meet, but it must be borne in mind that the Judge President chaired the Rules Board, and it was possible that he may not call a meeting. This clause was essentially placing an administrative burden on a judicial functionary, but  it was hoped that this would not be a problem in practice. |Judges President also tended to issue directives, which was not desirable as it did not allow for full consultation, but in the long term this would also hopefully be addressed through the overhaul of the whole process.

Mr Skosana suggested that there may be a need to cross reference the LRA Bill and the Superior Courts Bill. The Minister must table all the Rules, and those of the Labour Court must be published.

Mr Skosana said that there had indeed been agreement on clause 33, but it was actually not needed because of the amendment, in the meantime, that the Superior Courts Bill had effected. There was no problem with allowing judges of the Labour Court to be considered for appointment as Labour Appeal Court judges, and although it was not strictly needed in the LRA Bill, there was no harm in keeping it there.

Discussion
The Chairperson added that presumably there was also no dispute around the six-month requirement in clause 24.

Ms M Smuts (DA) queried the wording.

Mr J Jeffery (ANC) said that he had no problem with clause 24, which set out amendments to section 145 of the Labour Relations Act. He did not see that there was any problem with Parliament setting a time limit within which matters must be heard, and disagreed with the opinion of the Parliamentary Law Advisors that there was a problem, as the whole purpose of the Labour Court was to allow for matters to be heard urgently.

Ms Smuts said that the original section 145, although it had used different wording, said that the application must be lodged within a certain time frame, although the Court could condone a failure to do this. She asked if clause 24 was changing this to say that the Court must give a date within six months.

Mr Jeffery again stressed the urgency of dealing with labour disputes.

The Chairperson said that the clause had three basic requirements; firstly, the application must be made subject to the rules of the Labour Court, secondly, a party must apply for the application to be heard, within six months, and the court may condone. The whole picture must be considered.

Ms Smuts thought that the whole Bill afforded too great a role to the National Economic Development and Labour Council (Nedlac), and said that the appointment of the Judge President of the Labour Court was subject to Nedlac offering advice, which to her mind was not acceptable since it was not a constitutional structure.

Mr Jeffery said that the whole purpose of specialist courts was that they could deal with matters  differently, and in particular expeditiously, and the Competition Appeal Court was another example. That was one of the reasons that these courts had not been named in the new Superior Courts Bill.

Mr Jeffery heard the request of the Chairperson earlier not to debate the history, but said that he felt that he needed to question the fact that the Department of Labour drafters had not picked up, when drafting the LRA Bill, that some of the matters were already covered in the Superior Courts Bill, which had been introduced already in 2011. If this had not been picked up, Parliament would have passed the same amendments twice. He suggested that in future, officials from the Department of Labour must check with the Department of Justice prior to introducing any amendments that would affect the Labour Court, until such time as a ruling might be made that only the Minister of Justice could introduce any legislation dealing with courts.

Mr Jeffery asked for clarity on what exactly was to be deleted from the Bill.

Ms Anthea Gordon, Parliamentary Law Adviser, summarised that the Portfolio Committee on Labour had decided, in view of duplications, to reject clauses 27, 28 and 34(a) of the Bill. Clauses 31 and 33 were to be changed.

Mr Jeffery said that the inclusion of the words referring to judges of the Labour Court who would be eligible for appointment to the Labour Appeal Court seemed to be acceptable. He confirmed that the reference to the Minister of Labour appointing the Rules Board would be removed from clause 31. He noted what Mr Skosana had said about a total revision of the Rules of Court and was pleased to hear that in the longer term the inconsistencies would be sorted out. However, he found it curious that the Judge President of the Labour Court must ensure that the Rules Board sat every two years, since the Rules Board was appointed for a three year term, which meant that it would only have to sit once during its tenure. He questioned the need for a directive to the Judge President, saying that if the Rules Board would not meet, then there was little point in appointing it. He thought that there was a danger in setting out a minimum, as people would tend to abide by that. He wondered now, having heard that the Rules would be reviewed, if this clause was needed at all. However, that was up to the Portfolio Committee on Labour, which should, however, note these points. From an administrative point of view, in light of the Constitutional amendments passed in the previous year, the Chief Justice was head of the judiciary, and the Judge President of the Labour Courts therefore was subject to his authority. If the Rules Board failed to meet, the Chief Justice could call upon the Judge President to convene a meeting. He wondered if the amendment resulted from the failure of the Rules Board to meet in the past.

Mr Landers pointed out that the Rules Board would merely be reviewing the Rules, and asked how often they should meet.

Mr Jeffery responded that Mr Skosana had suggested that it be left to the Judge President, and the position was slightly different now that the Chief Justice was the administrative head of courts.

Mr S Swart (ACDP) said that the Portfolio Committee on Labour had presumably discussed these points at length, and asked if there had been any submissions on these points from interested parties, if consensus was achieved at Nedlac, and if there had been any major objections to the clauses. This Committee would normally consider public submissions, but he understood that it was now coming in at the end of the process.

Mr Swart corrected the earlier discussions and said that clause 24 was not saying that the judgment must be given within six months. The Labour Court was required to give a judgment “as soon as reasonably possible” – something that had not previously been included in any legislation. Clause 30(d) also covered that issue.

Ms D Schäfer (DA) pointed out that the judgments would be dealt with by the new Code of Conduct.

Mr Jeffery agreed, but made the point that legislation was more binding than the Code of Conduct, and he felt that the urgent nature of labour matters required this statement. Although he was hampered by not having the Labour Relations Act in front of him, he had thought that section 145 dealt with review of arbitration awards and section 58 dealt with general judgments. Although a review of an arbitration award would be a judgment, it may be necessary to specify both. He agreed that section 145 was not saying that the matter must be heard within six months, but that parties must apply within six months for a date to be assigned, to ensure that one of the parties was not able to delay.

Mr Swart reiterated that clause 24(6) and 30 both dealt with the judgments. A judgment covered everything. 

The Chairperson said that this underlined the point that all labour court matters must be dealt with expeditiously.

Ms Schäfer suggested that clause 24(5) was not clear and could be interpreted either that the matter must be heard within six months, or that the application must be made within six months.

Ms Smuts agreed with her also on this point.

Mr Jeffery felt that the wording meant that the parties must apply and the hearing should be held within six months. However, it was up to the Portfolio Committee on Labour must decide on it. In addition, that committee should look at the points that Mr Swart had raised in relation to the apparent duplication in the wording, although it did not appear to cause any harm.

Ms Schäfer repeated that the problem was that the clause was open to two interpretations.

Mr A van der Westhuizen (DA) said that since the condonation applied to the failure to bring an application within the time period, the earlier parts of the clause presumably then also related to bringing the application for a date. He agreed that the clause probably meant that the application for a date must be brought within six months.

Mr Swart said that this was actually explained in the Memorandum on the Objects, which explained clause 24, and said that the application for a date had to be brought within six months. Failing this, an application for condonation must be brought. The matter did not have to be heard within six months.

Mr Jeffery made a suggestion, to the Chairperson of the Portfolio Committee on Labour, that perhaps that committee might wish to consider inserting a phrase such as “must apply, within six months of the date of the application, for the matter to be heard”, to make the clause clearer.

The meeting was adjourned.