Labour Relations Amendment Bill; Basic Conditions of Employment Amendment Bill: hearings

Meeting report

LABOUR PORTFOLIO COMMITTEE
17 October 2001
LABOUR RELATIONS AMENDMENT BILL; basic conditions of employment amendment bill: PUBLIC HEARINGS and deliberations

Chairperson: Mr S Manie
Relevant Documents:
Basic Conditions of Employment Amendment Bill [B70-2001]
Labour Relations Amendment Bill [B77-2001]
Submission by the South African Domestic Workers Union
Submission by the South African Christian Bishops Conference
Submission by FEDUSA
Submission by the Disabled People of South Africa

SUMMARY
The submissions evolved around a number of key issues: S189 of the Labour Relations Amendment Bill, Elective Rights, Sunday Work, CCMA Fees, the inclusion of Labour Court Judges formally in the High Court and the variation of working hours, particularly in the maritime and agricultural sector.

The Department of Labour apologised for not submitting a report detailing the current position of its deliberation process and undertook to submit this report, together with information regarding the submissions during the public hearings, proposed amendments as well as the department’s response to these amendments. It was decided that any further deliberation on the substantive reform of the amendment Bills would be postponed pending the submission of said report.

MINUTES
South African Domestic Workers Union
Ms Hester Stevens: President, SADSAWU, urged that more copies of the Labour Relations Act and the Basic Conditions of Employment Act be printed, in languages understood by domestic workers. SADSAWU were concerned about the following issues:
maternity leave – S27
family responsibility leave – S29
S33 which expressly excludes domestic workers
severance pay – S41

Department of Labour
The Chair asked Lisa Seftel of the Department of Labour for a brief explanation of Section 25, 33 and 41 of the Labour Relations Act.

Ms Seftel explained that Section 25 of the Labour Relations Act as it stands allows a domestic worker a period of four months unpaid maternity leave. Section 33, which deals exclusively with record keeping required the Committee’s deliberation on whether a domestic worker is required to keep an employment record for a period of three years. Regarding Section 41, Ms Seftel stated that it was difficult to determine when a dismissal amounted to a retrenchment. Once this was determined it would be a deciding factor on whether a domestic worker would be entitled to severance pay. In addition the labour laws currently provided for one week’s pay for every year worked. The South African Domestic Workers Union’s proposal that it be amended to one months pay for every year worked, was significantly high.

Ms Thabethe asked Ms Stevens if she felt that the present government had done nothing to assist the plight of the domestic workers in the past. Ms Stevens stated that it was not her intention to sound ungrateful for the assistance provided so far by the government, but that she tended to disagree with the content of certain sections.

Mr Sitole (ANC) firstly asked Ms Stevens if she was aware that the purpose of the Department of Labour was to assist vulnerable workers and the domestic worker sector. Secondly, he enquired if she was familiar with the current Unemployment Insurance Fund Bill being tabled in Parliament; and lastly, he how Ms Stevens empowered domestic workers through trade unions. Ms Stevens responded briefly by stating that this was achieved through educational programmes provided by the trade unions.

Mr Ramodike (ANC) referred to Section 41 of the Bill which dealt with severance pay and stated that the proposal made by the SADSAWU lacked motivation. He expressed discomfort with the comment contained in the submission that domestic workers earned a minimum wage and asked Ms Stevens to respond.

The Chair responded that the contents of Section 41 was clear cut. SADSAWU was merely asking for a months salary for every year employed upon termination of employment because of the invariably low wages earned by domestic workers.

Mr Malebana’s (ANC) concern related to the same section. However, his issue was more specifically around security and the rights of domestic workers to benefit such pension funds, etc. He stated that the Department of Labour needed to redefine the definition of the term "retrenchment" so as to include domestic workers.

Mr Moonsamy (ANC) remarked that a person would only be able to relate to the term "little wage" if one had been employed as a domestic worker. He added that one month’s salary for every year worked was more than reasonable; and hence, supported the South African Domestic Workers Union submission in this regard.

Clothing Federation of South Africa
Mr Van Zyl: President, Clothing Federation (CLOFED), advised that the issues to be discussed consisted of viewpoints by both the clothing industry and manufacturing industry. The key issues were as follows:
Job losses: Mr Van Zyl stated that in the past 12 years, job losses have been reduced by 50% as a result of the clothing industry. He believed that the proposed amendments contained in the Labour Relations Amendment Bill would enhance job losses and not create jobs should the Committee proceed to pass the amendments.

International and global markets: Mr Van Zyl noted that this type of industry was prone to fluctuation. Additionally, that it was a key player in the international market. For this reason it was important that international investors be given an assurance that delivery of the product would be made.

The Clothing Federation of South Africa supported the African Opportunities Act which has resulted in exports being increased by over 76% to date. However, he mentioned that the proposed amendments to the Labour Relations Amendment Bill would do much to discourage international customers from investing in South Africa.

S189 of the Labour Relations Amendment Bill, dealing with retrenchment. Mr Van Zyl informed the Committee that his main concern revolved around the manner or process in which a worker could be retrenched. Mr Van Zyl was of the opinion that workers would only be retrenched if the operational requirements were too high to meet demands. In such a case the industry would have an option to either close down or cancel the orders placed.

Delays and time frames of the facilitation process: Mr Van Zyl stated that the clothing federation vehemently disagreed with the approach that a facilitation period of 60 days be considered. Additionally, that Business South Africa’s recommendation that a 45-day period be considered was to be rejected, as well. The Clothing Federation of South Africa proposed a period of 21 days.

Elective rights: Mr Van Zyl stated that in looking at elective rights of workers, the freedom of choice afforded to workers to either strike or approach the Labour Court for assistance was cause for conflict on the shop floor. Therefore, this view could not be supported.

The right to strike and sympathy strikes: Mr Van Zyl informed that because the clothing industry is a key player in the global market, delivery of the product needs to be ensured. Should workers be allowed to strike, this process of delivery would be made impossible. He remarked that the clothing industry themselves would be at a disadvantage having huge penalties imposed on them on non-delivery.

In concluding this issue, Mr Van Zyl stated that the right to strike was not to be supported by the Clothing Federation of South Africa.

Section 16 of the existing Basic Conditions of Employment Act, which dealt with overtime pay on a Sunday, Mr Van Zyl was of the opinion that it should be deleted completely from the Act.

Contribution to benefit funds: Mr Van Zyl informed that the submission which was to be paid over within 7 days was an impossible task – reasoning being that the Clothing Federation subscribes to a contribution benefit fund and health and pension fund on behalf of employees. To process employees applications within a 7-day period was far too onerous a task, he added.

The transfer of contracts: Mr Van Zyl believed that this onerous amendment would have the effect of enhancing job losses. By supporting this amendment, the Clothing Federation would be instrumental to contributing to huge job losses in the industry which will have the spin-off effect in other industries such as textiles.

Discussion
Mr Clelland asked Mr Van Zyl if he would be supportive of a section which provided for facilitation having both a short and long period.
Mr Van Zyl stated that the Clothing Federation would be supportive of a section which allowed for a reduced time period.

Ms Thabethe (ANC) remarked that the submissions made by the Clothing Federation appeared to be reflective of the apartheid era; allowing for no measures or protection for workers. She asked if Mr Van Zyl agreed with this view.

As regards Ms Thabethe’s (ANC) question, he stated that the Clothing Federation had no intention of re-living and implementing apartheid ideology. As proof thereof one only needed to refer to the African Opportunities Act which the Clothing Federation endorsed. However, the fear existed of widespread job losses through the implementation of the amendments in the Labour Relations Act and the Basic Conditions of Employment Act.

Mr Mshudulu (ANC) asked Mr Van Zyl if the Clothing Federation was of the opinion that their considerations had been ignored by NEDLAC.

Mr Van Zyl advised that losses in the industry were the result of employees conduct and lack of skill. More distinct was the fact that SACOB, an affiliate of the Clothing Federation of South Africa, failed to take their position into consideration on discussions with NEDLAC. Hence, the Clothing Federation made submissions to Business South Africa, but were subsequently outvoted.

Mr Ramodike (ANC) intervened and expressed his animosity and disgust at the submissions made by the Clothing Federation. He largely supported the standpoint of Ms Thabethe (ANC).

Responding to Mr Ramodike’s view, Mr Van Zyl remarked that the Clothing Federation to date has never challenged the right to strike. Not only are they in favour of supporting this right, but merely recommended that an additional right of choice between the Labour Court and that of a strike not be afforded to the general employee.

Mr Moonsamy (ANC) commented that changes brought about by Parliament were in line with transformation and democratisation in South Africa which appeared to be lacking in the submission proposed by the Clothing Federation.

Mr Maledana (ANC) remarked that the submission made by the Clothing Federation aimed to retard the growth of the economy and not enhance it.

Mr Patel, a representative of COSATU, referred to the Clothing Federations submission that the facilitation period be reduced to a period of 21 days. He said that experience has taught him that this process is much larger than 21 days and the suggestion is therefore completely unreasonable. Mr Van Zyl agreed with Mr Patel’s view but remarked that the contrary could also be true.

FEDUSA
Mr Chez Milani informed the Committee that FEDUSA has been inherent in its involvement in this process, together with NEDLAC, COSATU and NACTU. The main areas of concern surrounded S115, S197 and S213 of the Labour Relations Act – which concerns were noted in his written submissions.

Discussion
Mr Middleton (IFP) enquired whether the submissions made by FEDUSA were discussed at NEDLAC structures.

Mr C Milani replied that NEDLAC had been part of the discussion process. Much debate surrounds Section 115 of the Labour Relations Act, but all sections were canvassed adequately. Regarding Section 197 of the Labour Relations Act (also canvassed with NEDLAC), Mr C Milani remarked that it was open-ended and provided for no resolution or conclusion. The same, he believed, appeared to be the case with the definition of the term "workplace" which required further qualification. NEDLAC had also been part of the process with FEDUSA and it was now left to the Committee to make the final judgement which FEDUSA would agree to abide by.

South African Catholic Bishop’s Conference
Mr J Capel advised that their submission was contained in the documents provided.

In perusing the documents, Mr Middleton (IFP) asked why the South African Catholic Bishop’s Conference were of the opinion that the CCMA should be allowed to charge fees.

Mr Capel replied that while he believed that all kinds of people should have access to the CCMA, there were those members of the public who were well within their means to pay for the CCMA’s services. This reasoning, he stated, was deprived after consultation with various Bishop’s Conferences throughout the world who complained of frivolous litigation. The aim here was to ensure that important organisations such as the CCMA were not "bogged down".
The Chair responded that the CCMA was created to provide a service to the general public. By supporting the idea that a fee is required for services would require that people be categorised in order of who could or could not afford to pay. Mr Capel replied that the ideology behind the charging of services by the CCMA is based on the need to institute some level of mechanism to ensure justice.

Mr Patel, a representative of COSATU, explained that COSATU’s submission on vexatious and frivolous proceedings was to allow for a cost award, and not charge a fee. He asked Mr Capel for his opinion on this proposal. Mr Capel stated that he fully supported this view.

The Chair summarised the presentations made before the Committee and advised that a general trend apparent in all submissions presented were concerns relating to Section 189 of the Labour Relations Act, elective rights, Sunday work, retrenchments, CCMA fees and the inclusion of Labour Court judges formally in the High Court.

Disabled People South Africa
In introducing the aim, functions, nature and objectives of the Disabled People’s Organisation, Mr Matthew Parks noted that the reason for their submission was to ensure that the interests of all disabled people–both employed and unemployed were being protected. He cautioned against amendments that infringed on basic human rights.

Mr Sitole (ANC) asked how the Disabled People’s Organisation of South Africa used the advantages provided for in terms of the Skills Development Act to their benefit.

Mr Parks advised that DPSA has engaged in endless negotiations with the Department of Labour and, in addition have been a key player in the drafting process of the Code of Good Practice for Disabled People. He urged the government to look at more creative ways of creating employment for disabled people.

Mr Sitole thought their submission provided the impression that the definition of "community constituency" should be redefined to give priority to disabled people first.
Regarding the definition of "community constituency", Mr Parks advised that disabled people were usually the last sector or forum to be thought of.

Deliberations
Mr N S Middleton (IFP) suggested that the proposed amendments to the current Labour Relations Act 66 of 1995 on which NEDLAC could not reach consensus should be referred back to it to resolve the disagreement. It should not be the role of this Committee to deliberate on these unresolved matters and to then "take sides", as this would completely defeat the purpose for which NEDLAC was initially formed. NEDLAC is in the best position to successfully resolve these matters and they should thus be referred back to NEDLAC for final deliberation.

Mr Clelland (DP) disagreed with this suggestion as very few issues were left unresolved by NEDLAC and further discussion of the amendment Bills should thus proceed.

The Chair regretted NEDLAC’s failure to submit their report which would have stated the precise stage at which its deliberation process is currently, the exact issues that have not yet been agreed upon and whether it is awaiting submissions from the relevant stakeholders. Had this report been tabled, the Committee would have been more certain of its position and would by now have been able to proceed.

Ms E Thabethe (ANC) further informed Members that the NEDLAC process has formed an integral part of labour relations legislation since 1994. Yet there have always been and would continue to be matters which may not be fully resolved. It is then the delegated duty of the Portfolio Committee to continue this process and attempt to forge some consensus on the unresolved matters, and it would not be "ideal" to refer these matters back to NEDLAC. It is thus recommended that the respective political parties, after hearing submissions during the public hearings, be afforded some time to reflect on these submissions. Furthermore, the Committee may either accept or reject proposed amendments, but it cannot be allowed to refer unresolved matters back to NEDLAC for further deliberation.

Mr Kettledas, the Deputy Director General, assured Members that a consolidated document would be prepared by the Department detailing the proposed amendments to both Bills, as well as the various responses to these amendments from all interested parties. This would then allow this Committee to work speedily, yet thoroughly, through the amendment Bills, clause by clause, with easy reference to the issues raised in the public hearings, the response from the Department as well as the proposed amendments.

Mr R M Moropa (ANC) agreed with Ms Thabethe’s proposal, and said that the NEDLAC process is invaluable in the amendment process of labour legislation. For this reason alone its input should be considered by this committee any decision to send it back to NEDLAC for further deliberation should be vehemently protested. It was now the duty of this Committee to consider the NEDLAC report and use it effectively to proceed with the amendment process.

Mr Patel, speaking on behalf of COSATU, voiced his approval of these suggestions and informed the committee that approximately 85 clauses have been proposed by the amendment Bills, containing more or less 200 substantive matters in need of reform. NEDLAC, to its credit, reached agreement on 95% or more of these substantive issues, and those issues it failed to reach consensus on are relatively narrow in its application and possible effect on the labour market. All these issues have been set out in the NEDLAC report, and it is a pity that this report has since not been forthcoming as it would have assisted this Committee no end. The Committee was encouraged to engage in further deliberation on the issues on which NEDLAC could not reach agreement, yet reassured Members that should NEDLAC in future resolve any of these issues, it would immediately inform this Committee of the progress made.

Mr Van Vuuren, a representative of Business South African (BSA), agreed with Mr Patel’s suggestion that the matters not be sent back to NEDLAC, and further supported NEDLAC’s continuing willingness to assist this committee in any future deliberations of these Bills.

Mr Dexter: President, NEDLAC, informed the Committee that the procedure supported by the above suggestions has been employed successfully in labour legislation amendments for several years now, as imperfect as it is. The NEDLAC document has now been handed over to Parliament to provide certainty on the issues, and any decision to refer matters back to NEDLAC would be undesirable as it would then create an endless deliberation process. This process may very well have its flaws, but as Sir Winston Churchill remarked regarding democracy, "It’s the least worst system we’ve got".

The Committee now awaits work by the Department consolidating the written and verbal submissions from the interested parties during the public hearings, as well as the discussions of the proposed amendments to the Labour Relations Act of 1995 (LRA). The Department was requested, however, to separate these matters into those agreed to and those on which agreement has not been reached. Lastly, the political parties in the Committee should continue to communicate with each other in an attempt to achieve consensus on the unresolved issues in the amendment Bills. The Committee extends an "open door" to NEDLAC and welcomes any future input it may need to contribute to the amendment process.

The meeting was adjourned.