Version Two

Department of Labour: Response to the public hearings on amendments to the LRA and BCEA

16 and 17 October 2001

 

No.

Clause

Of Bill

Section of Act

Issue

Raised by

Response

Proposed amendment where applicable

1

2

24

Dispute resolution of councils

AMSSA

AMSSA are arguing that a collective agreement on dispute resolution should trump the accreditation process of the CCMA.

This would go against the intention of the LRA when it introduced accreditation, namely that the CCMA should play a role in ensuring uniform standards.

The amendments are not supported.

N/A

2

3

28

Functions of bargaining councils

COSATU

Due to a misunderstanding the SLA or Parliament changed "home workers" to "domestic workers".

The amendment to return to "home workers" is supported.

Replace "domestic" with "home".

3

7

33A

Enforce-ment of collective agreements by bargaining councils

AMSSA

Section 33A seeks to allow bargaining councils to enforce their collective agreements without having to develop their own procedures.

The AMSSA proposals do not contain a procedure which should then be incorporated. Instead it focuses on giving bargaining councils the power to determine their own procedures provided that these provisions do not reduce the protection afforded to persons in terms of the Act.

These amendments were drawn up after witnessing the difficulties that councils had to determine their own procedures. It is also difficult to establish what kind of procedures would not reduce protections.

The effect of this amendment could lead to lower levels of enforcement of collective agreements.

However the AMSSA proposal in respect of sub-section (4) gives better effect to our intention that the present formulation. It also gives effect to a recent Labour Appeal Court ruling in Kem-lin.

An amendment to Section 33A (4) be supported.

Replace Section 33A (4) with the following:

In sub-section (4) replace "commission" with "Council".

Insert a new paragraph (b) and (c).

If a party to an arbitration in terms of this section who is not a party to the council objects to the appointment of an arbitrator in terms of paragraph (a), the commission, on request by the council, must appoint an arbitrator

  1. If an arbitrator is appointed in terms of sub-paragraph (b) –
  1. the Council remains liable for the payment of the arbitrator’s fee;
  2. the arbitration is not conducted under the auspices of the Commission.

 

4

 

51

Dispute resolution functions of councils

AMSSA

AMSSA have made a number of technical proposals primarily for purposes of clarification.

In the main they are not necessary, have not been canvassed at NEDLAC and could have unintended consequences.

Two proposals however can be supported:

  • To clarify the footnote so that it only applies to a dispute involving a non-party to the council.
  • To amend sub-section (10) so as to clarify that a collective agreement can regulate ways in which an arbitration can be conducted under the auspices of a bargaining council.

(10) Unless agreed otherwise in a collective agreement, sections 142A and 143 to 146 apply to any arbitration conducted under the auspices of a Bargaining Council".

Add the following words after "disputes" in both paragraphs of footnote 11:
"in which a non-party to the council" is a party to the dispute".

5

22

115(2A)(a)

Rules about con-arb

COSATU

COSATU want to specify that the CCMA can make rules about a "joint process of conciliation and arbitration".

The Act has been amended at section 191(5A) to enable a single process. However the Act does not make specific mention of a Joint Process of Conciliation and Arbitration and therefore there is no need to specify this. The existing provisions allow the CCMA to make rules which can regulate a single process.

The amendment is not supported.

N/A

6

22

115 (2A) (j)

Costs to be treated the same as fees

BSA

BSA wants costs to be treated in the same way as fees and representation and moved to 2 B.

This amendment is supported. Consequential amendments to S 138 would be required.

Sub-section 115 (2A)(j) should become sub-section 115 (2B)(c).

7

22

115 (2B) (b)

Regulations on fees

FEDUSA

SACBC

FEDUSA does not support the charging of fees. SACBC want the relevant guidelines to include consideration of indigent parties.

The provision does not provide for fees to be charged but gives the Minister the power to make regulations after consultation with NEDLAC and CCMA. This can include the concerns of the SACBC.

No change is proposed.

 

8

22

115 (2B), also 133, 135, 138

Role of NEDLAC in respect of CCMA regulations

COSATU

COSATU wants the Minister to make regulations IN consultation with NEDLAC as opposed to AFTER consultation.

This could lead to a situation where no rules could ever be agreed to. It is adequate that the Minister should consult both NEDLAC and the CCMA.

This amendment is not supported.

N/A

9

24

128 (2A))

 

AMMSA

AMSSA wants to allow for councils to contract with non-accredited agencies to resolve their disputes.

This goes against one of the intentions of the LRA which was to ensure that the CCMA played a role through accreditation of ensuring standards. See section 24 above.

 

10

39

154

Removal of a judge from the Labour Court

COSATU

COSATU wants the President to be able to remove a Labour Court judge on the advise of NEDLAC. This is not possible in terms of section 177 of the Constitution. The same process as for other judges has to prevail.

The amendment is not supported.

 

11

40

158 (1A)

Settlement agreements being made awards of LC

COSATU

COSATU are proposing the deletion of the word: "either". This is a grammatical point.

The amendment is supported.

 

12

45

186(f)

Link between unfair dismissal and S197

COSATU

COSATU are proposing that this section should be cross-referenced to section 197 (3).

The section deals with the circumstances in which a transferred employee may claim constructive dismissal. The term ‘conditions of employment’ was erroneously inserted in place of the term conditions of ‘work’ as agreed at NEDLAC. This should be re-instated and COSATU’s concern should be addressed.

Replace ‘conditions of employment’ with ‘conditions of work’

13

47

188A

Enquiry into allegations about an employees’ conduct or capacity

AMSSA

AMSSA want to permit collective agreements bargaining to set up their own mechanisms for pre-dismissal enquiries.

AMMSA also propose to define arbitrator’s powers to determine fairness of employer’s decision to dismiss.

This is supported

Clarify that collective agreement can set up pre-dismissal hearings.

Clarify that councils (in respect of non-parties) and private agencies must be accredited to perform this function.

Insert a new section 188A (9) defining powers of arbitrators to decide on fairness of an employer’s action.

14

48

189

Right to strike

CLOFED

Free Market Foundation

CLOFED and the Free Market Foundation do not support the right to strike on retrenchments. This has been extensively negotiated at NEDLAC.

The proposal is not supported.

N/A

15

48

189

Giving workers an election

BSA

CLOFED

BSA argued that the DOL argued for an elective right to strike or go to the Labour Court for constitutional reasons. This is correct but it is only one part of the story. DOL was also concerned that the provisions of Section 189 should be implementable and not be subject to a large mount of litigation.

Having an elective right is a better way to achieve this.

CLOFED argues that the elective right will create greater uncertainty. This is not necessarily the case. This was extensively debated at NEDLAC.

The proposals to remove the election are not supported.

N/A

16

48

189 (2)

Meaningful

COSATU

COSATU want the word "meaningful" to be added to joint consensus seeking process.

This word was removed by the SLA due to the fact that it would be difficult in Court to establish what would be ‘meaningful’.

The Department of Labour accepts the explanation of the State Law Advisor. No change is proposed.

N/A

17

48

189 (3)

What should be disclosed in writing

COSATU

COSATU have proposed an amendment to ensure that all relevant information is disclosed in writing.

This amendment is supported.

Redraft so that both notice and disclosure of information must be in writing.

18

48

189 (4)(b)

Role of Labour Court in disclosure of info disputes

COSATU

COSATU have added the Labour Court to the provision in respect of disclosure of information. This was an oversight.

This amendment is supported.

Insert ‘or the Labour Court’ after ‘arbitrator’

19

49

189A (3)

Facilitation at request of either party

COSATU

COSATU want a facilitator to be appointed at the request of one party and not only when both parties agree.

This may lead to a situation where a facilitator may be requested in almost all retrenchment disputes and even when the other party has no intention of putting energy into the facilitation process. The CCMA will not have the capacity to provide so many facilitators.

This amendment is not supported.

N/A

20

49

189A (7)

60 day facilitation period and ability by agreement to reduce the period

BSA

CLOFED

Free Market Foundation

Although the Act does not provide that the time periods be reduced by collective agreement, section 23 of the LRA allows collective agreements to vary the Act.

A specific clause in this regard could be added but we would caution against it since it may create difficulties of interpretation to the extent that other provisions in the LRA may be varied by collective agreement.

 

It is however proposed that 189 (5)(b) could be put in as a separate clause and it could include that all time periods provided for in Section 189A can be varied by agreement.

Take 5 (b) out and redraft to permit all time periods to be varied by agreement.

21

49

189A (7)

Reduce time period to 45 days

BSA

This has been addressed by the above proposal.

N/A

22

49

189A

Crisis circumstances

BSA

BSA want a provision that allows employers to put workers on short time or temporary lay off in the event of a crisis situation. The Act does not preclude the employer from putting workers on short time or temporary lay- off. This is regulated by contract or collective bargaining and not by any statute.

The proposal is not supported.

23

49

189 A (5)

Varying notice periods

CLOFED

CLOFED are proposing that the Minister could make regulations to shorten the time periods for facilitation in a specific industry or sector.

This proposal can be accommodated. It is proposed that the Minister can make regulations on the time periods for facilitation and under what conditions these time periods can be varied.

Redraft sub-section 6(a) –

  1. the time period for facilitation and the reduction or extension of that period;

24

49

189A (7)(a)

Notice periods

BSA

CLOFED

BSA and CLOFED want more flexibility to reduce the notice periods of workers facing retrenchment. However workers facing retrenchment require a maximum period to be able to seek alternative employment and finalise their retrenchment benefits etc.

This amendment is not supported.

N/A

25

49

189A (7) (a)

Notice periods

COSATU

COSATU want the provision strengthened to clarify that notice periods can’t be reduced. This is not necessary.

This amendment is not supported.

N/A

26

49

189 (8)

90 days for referral to substantive issues

BSA

CLOFED

The law currently provides that an applicant has 90 days to refer a matter to the Labour Court. It would be a problem to reduce this period as it would give the applicant inadequate time to properly prepare his/her case.

The amendment is not supported.

27

49

189A

(10) (b)

Relationship between different groups of workers possibly represented by different unions or some unionized but not all.

COSATU

COSATU raises a concern as to the situation where workers who are organized by a union agree to strike while others may want to refer the matter to the Labour Court. However their proposed amendment does no address the problem.

It is proposed that where a union gives notice to strike no member of that union or person bound by a collective agreement may refer a dispute to Court.

Add –

Sub-section (10) to be redrafted to reflect the following –

  1. a consulting party may not both call a strike and refer a dispute on substantive fairness to court;
  2. where a union calls a strike, its members may not refer a dispute to court.

27A

49

189 (13)

Applications to the Labour Court should be made on an expedited basis

BSA

The BSA request for applications to be made on an expedited basis has been included in Section 33 of the transitional provisions.

There could be a further amendment in respect of the Labour Appeals Court but it may not be appropriate. This should be left to the discretion of the Rules Board

It is inappropriate that such detail should be in an Act.

The proposal is not supported.

N/A

28

49

189A (1)

Size of retrench-ments

BSA

CLOFED

This was extensively canvassed at NEDLAC and business agreed to the proposals made.

No change is recommended.

N/A

29

49

189 A (11)

Sympathy strikes

CLOFED

CLOFED does not support sympathy strikes. This was extensively negotiated at NEDLAC and agreed.

This proposal is not supported.

N/A

30

49

189A

(11) (C)

Sympathy strikes: circumstances

BSA

This is a new issue which was not raised by BSA in the negotiations. There is already a proportionality test in S66 and established jurisprudence which has not caused any difficulty. This proposed change can create uncertainty.

The proposal is not supported.

N/A

31

49

189A (11) (C)

Sympathy strikes: when does the notice period run from

BSA

BSA want to clarify when the notice period for a sympathy strike runs from. This should be the same as for all other sympathy strikes. In the NEDLAC process it was agreed that the only difference between a sympathy strike in respect of retrenchments and a sympathy strike for any other reason would be the 14 day notice period.

The proposal is not supported.

 

 

 

32

49

189A (11)

Defensive and offensive lock out

BSA

CLOFED

BSA and CLOFED want to be able to embark on both an offensive and defensive lock out.

At present, it is possible for an employer to lock out as soon as workers give notice to strike.

These provisions are appropriate under the circumstances.

The proposal is not supported.

N/A

33

49

189A

(13), (14) and (15)

An order for compensation by the Labour Court

COSATU

This proposal is to ensure that an employee can make an application to be awarded compensation.

This amendment is supported.

To add a new 13 (d):

"(d) directing the employer to compensate an employee if an order in terms of subsection (a) to (c) is not appropriate." And to delete 14 (b).

34

49

189 A

(19) (i)

Definition of operational requirements

COSATU

COSATU point out the present formulation is tautological and proposes a change.

The amendment is supported.

 

35

50

191 (5) (a) (ii)

Constructive dismissal after transfer

COSATU

COSATU want this clause to be consistent with 186(f). See proposed change to section 186(f).

 

36

52

194(1)

Remove cap for compensation

COSATU

COSATU want the 12-month cap on compensation to be removed. This was not raised at NEDLAC and will have further consequences for some of the principles underlying the LRA.

At the moment there is a 24 month cap for compensation for automatically unfair dismissal. This cap may also then need to be removed to create consistency. This may not be desirable..

The proposal is not supported.

N/A

37

53

197

Transfer of contracts of employment

CLOFED

CLOFED argue that the provisions are too onerous. This was extensively negotiated at NEDLAC.

The proposals are not supported.

N/A

38

53

197(4)

Reference to Pension Fund Act

COSATU

COSATU want a footnote that refers to the provision of the Pension Funds Act included. The SLA does not support footnotes. However we will discuss it with them.

The amendment is supported.

 

39

53

197

Choices in respect of benefit funds

FEDUSA

FEDUSA want persons affected by a transfer to have more options in respect of their benefit funds when they are transferred.

This can’t be regulated in the LRA but can be negotiated as part of rules of funds.

The proposal is not supported.

40

53

197 (B)

Insolvency

Free Market Foundation

The FMF ask a number of questions about the relationship between the LRA and the Insolvency Act. These issues are addressed in the amendment to the Insolvency Bill which will be considered by the Justice Portfolio Committee.

N/A

41

55

200A

Creating a rebuttable presumption as to who is an employee

Free Market Foundation

The FMF do not support this amendment. This was agreed to at NEDLAC with even organized business recognizing the need to curb the abuse that presently exists.

The proposal is not supported.

N/A

42

55

200A

Code of Good Practice as to who is an employee

COSATU

COSATU want a reference to the fact that a Code must be developed by NEDLAC in respect of guidelines to determine whether persons are employees.

The amendment is supported.

Add a new 200A (4):

"(4) NEDLAC must prepare and issue a Code of Good Practice in terms of Section 203 of the Act that sets out guidelines for determining whether persons, including those who earn in excess of the amount determined in sub-section (2), are employees."

43

58

213

Definition of public service

COSATU

FEDUSA

COSATU want the PSCBC to define workplace in the public service. FEDUSA have two options. The first is similar to COSATU. The problem is that if the PSCBC does not or can’t make a decision, the ability of a department or organizational component in the public service to set up an equity or skills forum could be undermined. The amendment provides for more certainty and gives the power to the Minister in consultation with the PSCBC to decide on a workplace in respect of ‘grey’ areas or unusual circumstances.

The second option by FEDUSA is a completely new proposal which was not discussed at NEDLAC and would require extensive discussion with the DPSA. It would also create more rigidity for different parts of the public service to set up equity or skills forums, for example.

These proposals are not supported.

 

44

60

Sche-dule 8

Probation

SACBC

Want a clearer definition of "less compelling reason". This is an issue that is appropriate for courts to develop.

The proposal is not supported.

 

45

20

83a

Code of Good Practice in respect of who is an employee

COSATU

COSATU want a reference to the fact that NEDLAC must prepare and issue a Code to determine guidelines as to who is an employee. A Code can be prepared without a reference in the Act.

It is however proposed that this provision be reincluded in the LRA since the Code referred to is in fact a Code in terms of s203 of the LRA.

The amendment is not supported.

 

46

45 & 52

Sec-tions 186, 192 and 194

Unfair labour practice

CICLASS

CICLASS propose the following amendments to the unfair labour practice (ULP):

  1. include transfer and grading as ULPs;
  2. clarify meaning of benefit;
  3. limit compensation for ULPs to 12 months;
  4. apply onus in section 194 to unfair labour practice

Our response is as follows:

  1. is opposed since this would ‘judicialise’ grading systems. Employees have adequate protection under Employment Equity Act and existing ULP.
  2. Classification of ‘benefit’ would be useful.
  3. It is logical to limit compensation to 12 months as there should not be more compensation for ULPs than dismissals.

(d) Onus provision should not be extended and courts should develop rules. Because of the variety of different ULPs, onus rule may vary in different cases.

Amend section 192 to limit compensation for ULPs to 12 months.

47

45 & 53

Section 186(f) Section 197 and 197A

Transfer of companies

CICLASS

CICLASS propose that the test for constructive dismissal after transfer be based on a substantial change in conditions of work.

This is partially accepted – see 186(f) above.

CICLASS want ‘business’ and ‘transfer’ in S 191 (1) defined. We argue that the Courts have begun to examine these concepts and it should be left for them to determine.

CICLASS want to limit the scope to vary the application of S197

DOL believes that S197 contains an appropriate balance of protection and flexibility.

CICLASS want employees to able to opt out of transfer and remain with old employer. DOL argues that the employee has adequate protection in terms of 186(f) and 187 or could resign.

CICLASS says there should be disclosure of information in respect of consultations over transfer. This proposal is accepted and an amendment will be drafted.

CICLASS says there is Inadequate protection in insolvent transfers.

DOL argues that the present level of protection is appropriate in the context of the possible rescue of insolvent employers.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Require disclosure of information for consultation under section 197 and 197A.

 

 

 

Basic Condition of Employment Act

No

Clause of Bill

Sect in Act

Issue

Who raised

Response

Proposed amendment

1

3

10

Regulation of overtime

CLOFED

The Bill says that by collective agreement overtime can be extended for up to two months within a 12-month period. CLOFED want it extended to four months.

NEDLAC agreed on two months.

The proposal is not supported.

N/A

2

 

16

Sundays

BSA

CLOFED

BSA wants the premium for work on Sunday removed. If not they want a premium of time and a half for all companies with more than 20 employees and no premium for companies with less than 20 employees. CLOFED want a premium of time and a half for all workers.

This proposal for large employers is not supported. In respect of small employers it is possible to provide for this through Ministerial determinations. The parties can approach the Minister in this regard.

 

3

 

25

Maternity leave

SADSAWU

SADSAWU want domestic workers to be able to travel home for four months paid maternity leave.

The Act makes provision for 4 months unpaid leave. Other workers get UI benefits during their maternity leave. However this matter is better addressed in the proposed sectoral determination since it is unique to domestic workers.

The proposal is not supported.

 

4

4

27

Family responsibility eave

SADSAWU

SADSAWU want two more days’ family responsibility leave for workers to travel home.

It is proposed that this matter is better addressed in the proposed sectoral determination since it is unique to domestic workers.

The proposal is not supported.

 

5

 

29 and 33

Written particulars and info about remuneration

SADSAWU

SADSAWU want domestic worker employers also to provide written particulars and info on remuneration. S 28 (b) of the BCEA specifically excludes domestic worker employers from these provisions.

In the domestic worker investigation for a sectoral determination these issues have also been raised and employers have indicated that they could provide written particulars.

This proposal is supported.

Section 28(b) to be deleted

6

5

34A

Payment of contribution to benefit funds

 

CLOFED want the period by which an employer must pay over contributions to benefit funds to 14 days. It is possible to do this through collective bargaining.

This proposal is not supported.

 

7

5

34A

Directors to be held personally liable if do not pay over contributions

 

This is unconstitutional since you can’t make directors liable when there may not be any fault on their part. There are constitutional court cases in this regard.

There are also existing remedies to stop this kind of abuse in Section 434 of the Companies Act.

The proposal is not supported.

 

8

6

35

Schedule on

Remuneration

SACBC

It is proposed that a schedule on remuneration should be made IN and not AFTER consultation with NEDLAC. They also point to a mistake in the memorandum.

The mistake in the memorandum can be corrected. The Department prefers the formulation AFTER consultation with NEDLAC since this promotes good governance and allows the schedule to be published in the event that no agreement is reached in NEDLAC. This is adequate for essentially a technical schedule.

N/A

9

7

37

Notice periods

DPSA

DPSA oppose the reduction of notice periods. This was agreed at NEDLAC.

The proposal is not supported.

10

8

41

Severance pay

SADSAWU

SADSAWU want one month’s pay for each year worked. This is more than other workers.

It is proposed that this issue be addressed in a sectoral determination.

 

11

9

50(2A)

Terms and conditions more favourable

BSA

BSA does not want the terms and conditions to be more favourable. The Bill has introduced the ‘more favourable test’ due to the fact that the policy approach of the Department is not to encourage the increase in working hours over a 45-hour week.

The proposal is not supported.

 

12

9

50 (2A) and 55

45 hour week: package of what can be ‘traded’ for as more favourable

COSATU

COSATU want to delete ‘overtime’ and ‘meal intervals’ when considering what could be traded to be more favourable.

This amendment is supported.

Delete ‘overtime’ and ‘meal intervals’ from section 50(2A)(a)

13

9

50 (2A)

45 hour week: indicate maritime sector in the Act

COSATU

COSATU want to specify maritime sector as being allowed to work more than 45 hours per week as opposed to sectors where it is ‘necessitated by the operational circumstances’.

The problem with this is that in future new conditions may emerge which requires workers to work more than a 45-hour week in terms of their operational circumstances. Examples could include civil aviation and emergency personnel.

The amendment is not supported.

14

9

50 (2A) (b) (iii)

Restricted to two industries

BSA

The Department does not agree with the interpretation of this section by BSA. Our understanding of the section is that there is a right to vary ordinary hours of work in three kinds of instances, namely:

  • where there is a collective agreement

 

  • where it is required by operational circumstances
  • in security and agricultural sectors.

A small amendment to further clarify this is proposed.

Add an "or" at the end of paragraph (a).

15

10

60

Representation at ECC

DPSA

Want representation of community constituency at NEDLAC and in particular to take account of the circumstances of people with disabilities.

Representation is provided for experts who understand the issues of poverty and unemployment. This is adequate.

The proposal is not supported.

 

16

19

83

Deeming provisions

CICLASS

CICLASS want the deeming provisions to extend to other labour laws such as the MHSA and laws administered by the DOH. There is no need to include the MHSA as it applies to all workers who work on a mine.

The DOL agrees in principle but this would require the support of other Ministers. This should be achieved by amendments to those laws. The Department will support and engage with the relevant Departments in this regard.

 

 

 

 

Technical from Department of Labour (LRA)

17

68(1)(b)

Compensation for unlawful conduct

Department

Technical correction

Replace ‘the strike’ in line 26 with ‘a strike’ (?)

30

142

Witness fees

Department

Technical correction

Replace ‘to the Commission the prescribed witness fee for" with "the prescribed witness fee to" in 7(b).

Redraft 7(C) – ‘The Commission" may on good cause shown, waive the requirement in paragraph (b) and pay the prescribed fee to the witness".

49

189A

(11)(b)

 

Department

Technical correction

Redraft 11(b). Subject to sub-section 2(b), section 65(1) and (3).

54

197A

 

Department

Technical correction

Replace ‘and’ with ‘or’ in sub-section 1(a).

 

Notes:

  1. The submission by Judge Zondo has not been responded to. Consultations are proceeding with the Department of Justice.