Last week I alerted readers to two new labour law amendment acts that came into effect in 2014 and 2015. These acts radically amend the Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA). As a result trade union and employee rights have been very substantiallyr strengthened. For example:
- Members of minority trade unions are more easily be able to elect shop stewards. This will mean that unions with smaller workplace membership will be able to get better organized.
- Labour broker employees are able to exercise their trade union rights at the premises of the broker’s client so that the clients of labour brokers have to endure protests and strikes carried out by broker employees. Shop stewards employed by the broker but based at the client’s premises are allowed to take union leave and arrange meetings between union members and trade union officials. The client’s ability to avoid such disruptions by using labour broking has fallen away.
- Unless the client can prove that the reason for the placement is temporarily to replace an absent employee of the client, it will be forced, after 3 months of assignment by the broker, to take legal responsibility for any breach of the LRA perpetrated against the workers placed by the broker.
- The client will have to treat these workers as if they are their own and to pay them the same wages and benefits as the client’s other employees performing the same or similar work.
- Employees engaged for a fixed term could claim dismissal on expiry of the term if they have a reasonable expectation of permanent employment. Previously, if the job occupied by the temporary employee is made permanent by the employer, the temp employee had no right to claim expectation of being granted the permanent post. The new law now allows the employee to claim that failure to give him/her the permanent post constitutes unfair dismissal.
- Employers will not be able to employ staff on fixed term contracts for longer than 3 months unless they can prove that the nature of the work for which the employee is engaged is of a limited or definite duration or the employer can demonstrate any other justifiable reason for fixing the term of the contract. Even if a fixed term job of longer than 24 months can be justified under the law, the employer must, on expiry of the contract and subject to the terms of any collective agreement regulating the issue, pay the employee one week’s remuneration for each completed year of the contract.
- Arbitration awards for compensation that have been certified by the CCMA Director’s office can be presented directly to the Deputy-Sheriff without the involvement of Labour Court writs. It is therefore much quicker and easier for employees to get arbitration awards enforced and employers are finding it more difficult to frustrate employees by delaying the process.
- The need to have an arbitration award for reinstatement made an order of the Court before contempt proceedings can be commenced has been removed, so again speeding up the enforcement process.
- The act now prohibits, via a change to section 187(1)(c) of the LRA, the dismissal of employees for reason of their refusal to accept a demand by the employer over a matter of mutual interest (e.g. a change in working hours). Previously, section 187(1)(c) of the LRA only provided for automatically unfair dismissal where the dismissal was for reasons of compelling employees to accept the employer’s demand on a matter of mutual interest. Thus employers have, up to now, been able to:
- inform employees that they need to change terms or conditions of employment
- and, where the employees refuse, legally retrench them. As long as the employer does not thereafter reinstate or offer to reinstate any retrenchees who have changed their mind about accepting the changed employment conditions it is likely to be legally safe. The amendment act now allows retrenched employees to claim automatically unfair dismissal regardless of whether or not reinstatement is offered or implemented.
To book for our Johannesburg seminar on 3 June 2016 on HOW TO WIN AT THE CCMA please contact Ronni on ronni@labourlawadvice.co.za or 0845217492.
