In 2011 I alerted readers to four new labour bills set to bedevil employers and likely to further discourage employment. Three of these have now been in place for over a year. The new LRA amendment act has the effect that:
- members of minority trade unions are able to elect shop stewards.
- Labour broker employees are able to exercise their trade union rights at the premises of the broker’s client.
- employers falling under bargaining councils will fund dispute resolution.
- unlawful strike action including violence and intimidation may be reduced.
- conduct in breach of a picketing agreement or picketing rules will not enjoy protection against civil legal proceedings.
- the Labour Court will be able to make orders for the compliance with or variance of picketing rules/agreements
- minimum service agreements may be implemented in essential services.
- the CCMA is empowered to provide administrative assistance to lower paid employees in serving CCMA documents on employers
- the CCMA be empowered to regulate the rights of parties to be represented in proceedings before the Commission.
- Arbitration awards certified by the Commission can be presented to the Deputy-Sheriff without the involvement of Labour Court writs.
- There is no longer a need to have an arbitration award for reinstatement made an order of the Court before contempt proceedings can commence.
- applications for rescission on grounds of good cause may be brought before the CCMA.
- the operation of an arbitration award may not be be suspended unless financial security is provided by the applicant for a Labour Court review
- employees engaged for a fixed term can claim dismissal on
expiry of the term whether they have a reasonable expectation of continued temporary or permanent employment.
- section 187(1)(c) of the LRA has been amended to prohibit 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).
- the CCMA now has jurisdiction to arbitrate disputes about retrenchments involving employers employing less than 10 employees.
- labour brokers are not able to supply lower income employees to clients for longer than 3 months unless the employees are hired to stand in for a permanent employee of the client.
- Many lower income employees of labour brokers will become employees of the client if they are employed to perform work over a period in excess of 3 months and be paid the same wages and benefits as the client’s other employees who are performing the same or similar work.
- Employers may not employ staff on fixed term contracts for longer than 3 months unless 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. The bill sets out a non-exhaustive list of ten justifiable reasons for fixing the term of a contract.
- if a fixed term 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.
The new BCEA amendment Act’s effects are that:
- Employers re prohibited from accepting any payment from any employees or potential employees in respect of their employment or the allocation of work
- the Minister may issue an “umbrella” sectoral determination covering employers and employees who are not covered by any other sectoral determination or by a bargaining council collective agreement and may prohibit the subcontracting of work, prescribe minimum pay increases and set a threshold of representativeness for a registered trade union to have the organizational rights of access to employer premises and deduction of trade union subscriptions
- bottle-necks and delays in the labour law enforcement process have been removed.
- the right of the employer to lodge objections or appeals against compliance order has been removed from the Act.
I will go more deeply into the ramifications of these far reaching amendments in my next articles.
To attend our 3 June, Johannesburg seminar on HOW TO WIN AT THE CCMA contact Ronni on 0845217493 or ronni@labourlawadvice.co.za.
