Labour laws to set new course

Monday, April 30, 2012

In March, cabinet approved the submission of the amendment bills for the Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA) to Parliament. The two will deal with the phenomenon of labour broking and child labour, among other things.

Some have argued that the amendments could damage business in the country; with others even arguing that the amendments could affect job creation.

BuaNews sat down with the Department of Labour Director-General (DG) Nkosinathi Nhleko to find out what the amendments meant for the South African labour landscape.

"Government has the responsibility to assess the conditions of state in general in terms of how South Africa is developing," says Nhleko.

"It's specifically in this regard one would talk about government having seen the need to assess, review and take stock of developments at the level of the labour market system in this country. But that review or taking stock of what the conditions are, are always informed by our constitutional obligations," he explains.

Amendments to the LRA and the BCEA have a major focus on addressing what is now commonly referred to as the phenomenon of labour broking. And according to Nhleko, labour federations have been engaging with government on an on-going basis around this issue.

In terms of the LRA, temporary employment is limited to genuine temporary work that does not exceed six months. Additional protection is extended to persons employed in temporary work and who earn below an earnings threshold (set at the BCEA threshold of R172, 000.00 per annum). Unequal treatment of those employed in temporary work who earn below the threshold is prohibited.

"What was noticed was that there were employment practices that were beginning to unsettle the work that has been done in a number of years in so far as the labour market is concerned in South Africa. And one of those is the question of regulating contract work and also regulating the issue of how people who are subjected to contract work have got to be treated," says Nhleko.

Recent trends, he says, have shown that there has been an increase of casualization of labour.

"When you have labour casualized, you will also experience a situation where temporary workers or casual labour are not subjected to the same regime as permanently employed workers, be it your benefit structure or the applicable benefits that workers enjoy in the labour market would not be applicable to them. We've had situations where people are casual labourers for years on end and that's what government sought to respond to and of course address."

The amendments to the LRA also introduce the regulation of fixed term contracts for those who earn below the threshold. An employee may be employed on a fixed term contract for longer than six months only if the work is of limited duration or the employer can demonstrate a justifiable reason for fixing the term of the contract.

An employee who is employed for longer than six months is deemed to be employed for an indefinite period and must be treated no less favourable than a permanent employee doing the same or similar work.

"Government seeks to achieve a situation where workers, irrespective of their industries and status are treated equally. If you work for an established company and you enjoy a particular set of rights, there's no reason, for a casual or temporary employee, to not be subjected to the same set of rights as a permanent employee. The amendments seek to foster the issue of equality within the labour market system but also within society in general," he says.

The BCEA amendments are proposed to give the Minister the power to prescribe thresholds of representativeness of a trade union to have the organisational rights of access to employer premises. This is intended to apply to situations where unionization is difficult but where a more flexible threshold may facilitate unionization within a sector or area.

Further amendments in this regard propose that the Minister could set increases to actual wages instead of minimum wages for vulnerable workers in sectoral determinations.

"If you are regulating; if you have the responsibility to regulate the labour market system; you must set a flow of standards and that's within the jurisdiction of the minister of labour.

"All the other sectoral determinations are processed along those particular lines of a minister proclaiming what the actual determination should be in a given sector."

The private sector has argued that the amendments to the labour laws will affect the cost of doing business and the creation of employment.

"We do not see how job creation will be affected by the mere fact that we are setting standards and rules that have got to be followed in the process of recruiting labour and subjecting labour to offer its services.

"What needs to be understood is that all which government is trying to do is ensuring that people are treated fairly, equally and justly as per the dictates of the South African constitution," explains Nhleko.

The amendments also see the return of a balloting process before a strike, and the majority of those who vote are required to support any strike through a ballot.

"Government takes the view that for any strike action to take place, there has got to be balloting. Which is a normal democratic principle," he says.

Amendments are also made to chapter four of the LRA which deals with the procedural requirements for protected industrial action. The changes are intended to respond to unacceptable levels of unprotected industrial action and unlawful acts in support of industrial action, including violence and intimidation.

"In terms of violence associated with strikes, there has to be a degree of accountability and responsibility that is taken into account as and when you are embarking on strike action," says the DG.

"In recent times we've seen a pattern where certain groups would go on strike and for those who do not go on strike they then would be subjected to somewhat of vulnerability or victimisation by those who happen to be on strike and that is undesirable.

"The constitution of this country is very clear; you respect the rights of everyone, in other words, the point is simply that, if you exercise your right to strike, do so, without necessarily trampling on the rights of others."

Provisions will also be introduced to facilitate unionisation of workers, which Nhleko says will allow people to have an understanding of what their rights are. He says government may have a progressive law in place but if people don't know about it, it is the same as not having it.

"The necessity [of being in a union] is simply that, for the country to have a thriving labour market system, that system must be based on the knowledge of rights. Unionisation opens people up to understanding what their rights are.

"One of the key objectives of this department is to protect vulnerable workers. And protection of vulnerable workers is that people must then know about their rights and they must have access to unionisation," he says.

According to Nhleko, South Africa has got a progressive set of labour laws. He says the country has done well in terms of aligning itself to the rest of the world in as far as issues of labour are concerned.

"If you were to take the amendments of the BCEA, those amendments talk directly to labour standards as set by the International Labour Organisation (ILO). In terms of the structure related to the crafting and designing of our laws, I think that they are progressive.

"What I normally say to people is that there is a difference between an existence of a law and knowledge about that law and using it. People have got to know about their rights, they have got to know about the existence of these particular rights.

"The only way that people can know, particularly workers and working people in general, is to associate themselves perhaps under organisations or worker formations of any sort so that they are then subjected to knowing about what their rights are and getting educated."

The Bills will now be considered by the Portfolio Committee on Labour before being submitted to the National Assembly and the National Council of Provinces respectively for adoption. -BuaNews