Amendments to Legislation
ABC Sector Meeting
9 March 2011
Agenda
•Amendments to Labour Relations Act
•Amendments to Basic Conditions of
Employment Act (BCOE)
•Amendments to Employment Equity
Act (EEA)
•Introduction of new Employment
Services Bill.
Amendment to Labour
Relations Act
Section 147 – Performance of Dispute
Resolution.
These functions may now be performed by
the Commissioners at CCMA under
exceptional circumstances. (previously was
at Labour Court)
Question – how can CCMA intervene in an
agreement with an employee (who is very
senior at a company) and the employer
when they have an agreement between
them?
Amendment to Labour
Relations Act
Section 186
New insertion – CCMA can intervene in
strike action if it is in the public interest.
This will have implications on the right to
strike for unions.
Amendment to Labour
Relations Act
Section 189A
New insertion – threshold of earning above
R149’000 pa can no longer be referred to
CCMA on Sections 185, 186, 188, 189A or
197 labour disputes for free.
This implies that there is NO representation
for these people!
Amendment to Labour
Relations Act
Section 198 Temporary Employment
Services (TES)
Repealed in its entirety!
A TES will now have to act as a permanent
placement agency only.
Have to register with DoL and pay a fee for
registration
Violation of right of TES to conduct business
Namibia has NOT banned TES. Declared as
unconstitutional to do so.
Amendments to Labour
Relations Act
Section 200A – Presumption of who is
an employee.
This refers to any person who is
employed in any capacity is referred to
as an employee – i.e.: permanent.
Entitled to full benefits of permanent
employees
Amendments to Labour
Relations Act
Section 200B
All temporary employees (FTC) are
declared permanent unless a
company can justify why they require
temporary staff – i.e.: seasonal
workers.
Receive all benefits as per a
permanent employee!
Amendments to Labour
Relations Act
Section 200C – Liability of Client
Company in Sub-Contracting
States the employee of a sub-contractor
“must” litigate against the principal user as
well in respect of allegations of unfair labour
practices.
The employee must have recourse against
the employer and it’s client company where
there is unfair labour practice.
Amendments to Labour
Relations Act
Section 213 includes new definitions of employer and
employee – requires direct supervision, direction and
remuneration.
New definition of employer
“ means any person, institution, organization, or
organ of state who employs or provides work to an employee
or any other person & directly supervises, remunerates or
tacitly or expressly undertakes to remunerate or reward such
employee for services rendered”
New definition of employee
“ means any person employed by or working for an
employer, who receives or is entitled to receive any
remuneration, reward or benefit & works under the direction
or supervision of an employ
Amendments to BCOE
Act
Section 32
Insertion as per LRA – employers
must contribute benefits similar or of
similar value to employees on FTC.
Can be seen as a disincentive to
employment as an employer may not
employ casual staff.
Permanent staff benefits will be the
benchmark used.
Amendments to BCOE
Act
Section 55 – Sectorial Determination
Give the Minister of DoL right to make a Sectorial
Determination at any time at a Bargaining Council.
Example:
Bargaining Council state minimum wage R1000.00
and a company pays R2000.00pm. Minister may
impose Sectorial Determination that all wages must
be as per Bargaining Council.
No negotiation on pay rates
Can also impact on % of union fees which exclude
Non Cosatu unions.
Amendments to BCOE
Act
Repeal of Sections 68,69, 70,
71,72,73
Impact of this allows that the DoL may
take a company straight to court or
give a fine!
Very litigious!
Amendments to BCOE Act OFFENCES AND PENALTIES
It is a criminal offence to contravene the
following provisions
Section
9.
1D.
16,17.18.19.20.21,22.25,
26.27.32.33.34 and 34A
Section 33A
Section 39, 40 and 41
14.
Minimum Applicable fines Minimum term of imprisonment
15, R10000.00
12 months imprisonment
R10000.00
R10000.00
12 months
12 months imprisonment
Section 43
[3] 6years
Section 44
Section 46
Section 48
Sections 65 and 66
[3] 6years
[3] 6years
[3] 6years
12 months imprisonment
R10000.00
Section 90(1), (3) and 92(a), (d), (e), (f)
1 year
Section 92(b)
Applicable legislation must
be used to determine
imprisonment
Amendments to EEA
Section 6 – Prohibition of Unfair
Discrimination.
Equal work for Equal value!
How is performance management
conducted and rewarded?
Amendments to EEA
Section 20 – EE Plan
Fines will be imposed from 2% to 10% of turnover if
anything in the reporting and the plan is out of line!
Inspectors no longer need to issue undertaking
requests and compliance orders but can take
company to Labour Court immediately with fines of
between 2% and 10% of turnover
Submission of reports is EVERY year for ALL
companies regardless of size.
Schedule 4 – Total Turnover for BEE Reporting has
been increased from R2 million to R5 million for
compliance
Amendments to EEA
Section 27 Income Differential and
Discrimination
Reporting on the EE Plan must include the
remuneration and benefits received in each
occupational category and level of the
employer’s workforce and where
disproportionate income differentials or
unfair discrimination in terms and
conditions of employment are reflected,
the employer must show how this will be
rectified.
Amendments to EEA
Section 42 /43– Assessment of Compliance
Allows the DG to review the EE plan and
progress is made more inspector-friendly in
that employers have to prove they have
taken reasonable steps to generate skills
of under-represented designated persons
and the like (learnerships, apprenticeships
are excellent in this regard to show
progression).
No differentiation between national and
regional demographics – will measure
against national demographics only.
Substitution of Schedule 1 of Act 55 of 1998
The following Schedule is hereby substituted for Schedule 1 of
the Principal Act:
Previous Contravention
No previous contravention
A previous contravention in respect
of the same provision
A previous contravention within the
previous 12 months or two previous
contraventions in respect of the
same provision within three years
Three previous contraventions in
respect of the same provision within
three years
Four previous contraventions in
respect of the same provision within
three years
Contravention of any Provision of
Sections 16 ,19,20,21,22,23 and 27
2% of turnover
4% of turnover
6% of turnover
8% of turnover
10% of turnover
Employment Services Bill
The purpose of this Bill is to provide public
employment services;
To provide for the registration of private
employment agencies;
To provide for the establishment of the
Employment Services Board;
To provide for the establishment of
Productivity South Africa;
Employment Services Bill
This Bill will have an impact on the Labour Relations Act 1995
in that Section 198 (TES) are REPEALED.
And
On the Skills Development Act, 1998, that are REPEALED,
in the following:
“1.
The deletion of the definition “employment services”
2.
Sections 2 (1)(g) and (h), 2(2)(a)(v) and (xii), 5(4) in
so far as it relates to
Productivity South Africa, 22(1),
23(1)(a) and (d), (2) and (3),
24,25,26,26K,26L,26M,26N,32(1) and (20,33,36(a),
(o),(p) and (q).
3.
Item 7 of Schedule 2A and Schedule 4
4.
Any other provision in so far as it relates to
“employment services” or
Productivity South Africa, as
established by section 26K.”
Employment Services Bill
“Work seeker” means any person, and includes a
legal foreign worker, who is unemployed and is
looking for work.
Note here that there is no linkage to the
Employment Equity Act in regard to EE reporting
and where to include foreign workers in the
demographics and statistics!
Essentially this Bill will ensure that there are
Private Employment Agencies and Public
Employment Agencies (DOL Labour Centres).
There is no provision for TES Agencies.
Employment Services Bill
Chapter 2 – Public Employment Services
10 – Reporting on vacancies and filling of positions.
Employers have to notify the Labour Centres of any
vacancy or new position in their establishment
within 14 working days after the position became
vacant or was created.
The Labour Centre will provide suitable candidates
to fill the vacancy to the establishment for
interviewing.
Should the establishment not accept one of the
Labour Centre candidates, the establishment must
provide written reasons for declining the candidate
to the Labour Centre.
Thank you for your time and for listening to
this presentation.
Any questions?
Janelle Gravett
011 883 0119
janelle@sassda.co.za