Amendment to benefit casual staff
Protection for temporary, fixed-term and part-time workers may prove contentious
AFTER a long wait, the labour legislative amendments have reached their final stage. We have already seen the implementation of the Basic Conditions of Employment Act as well as the Employment Equity Act. But by far the most controversial amendment is the Labour Relations Act.
The amendments of the act cover many themes, including atypical employment, dispute resolution and collective bargaining, among others.
The most controversial aspect of the Labour Relations Act is the extra protection for temporary employment service, fixed-term and part-time employees, that is introduced by new sections 198(A), (B), (C) and (D).
What is important to bear in mind is that the three-month definition of temporary work is not applicable to genuine replacement employees, such as maternity cover. The “deeming clause” applies to situations where the employee is earning less than the threshold, now R205,433 a year, and where they are placed with the client for a period exceeding three months. In terms of the amendments the employee, in essence, gets extra protections in terms of the act. The temporary employment service provider may remain after three months. The extra protections have already led to confusion in the labour market.
According to the act and for the purposes for sections 198A(5), 198B(3) and 198C(3)a, equal treatment is also provided for. Justifiable reasons for difference in treatment includes that different treatment is a result of certain factors, taking into account: a) Seniority, experience or length of service; b) Merit; c) The quality or quantity of work performed; or d) Any other criteria of a similar nature, if such justification is not prohibited by section 6 of the Employment Equity Act 1998 (Act No 55 of 1998).
This is wide enough to find reasons for such differentials in most cases. The three-month and extra protection does not only apply to temporary employment service providers though. Section 200B (3) places limitations and restricts the utilisation of fixed-term contract employees and the equal treatment provision is brought in for fixed-term and part-time employees.
Section 200B (10) places a greater burden on employers, as employees employed on a fixed-term contract for longer than 24 months will need to be paid one week severance for every year of service. No actual retrenchment process needs to be engaged; however, the severance pay needs to be paid.
A big drive in these amendments was the push to ease access to dispute resolution forums and to assist in the streamlined enforcement of awards.
To prevent abusive practices by employers, section 145 is amended to provide for the payment of 24 months’ security (in the case of reinstatement) or compensation (equivalent to the amount awarded) by employers only, should they wish to take an award on review to the Labour Court. This onesided provision will no doubt put pressure on the constitutional right of access to courts for particular small businesses.
To further assist employees in enforcing awards, an award is treated as an order of court. This would allow a quick accessing of enforcement proceedings such as warrants. The concern in this instance is the ability of processes to ensure proper notification to an affected employer.
There is also a change in section 187, which will potentially have far-reaching implications for the Supreme Court of Appeals decision of Fry’s Metal and the ability to retrench in order to change conditions of employment.
Section 189A’s amendment therefore puts enormous pressure on retrenchment processes as now no party, in a large-scale retrenchment, may unreasonably refuse an extension beyond the 60-day period.
One of the major aims of the legislation, as verbalised by the Department of Labour in the legislative pro-
A big drive in these amendments was the push to ease access to dispute resolution forums
cess, is the ease of access to workplaces for unions. To address this, S21 provides for this easier access to previously majority trade union rights under s21 on trade union official, leave and access to information. This amendment may see a union with less than 50% plus 1 representation being given majority status. The concern here is that this may lead to a proliferation of trade unions in the workplace which is contrary to the act’s original intention.
Sadly, despite there being a fundamental problem in how strikes are being conducted, there are no real provisions by the government that restrain strike violence adequately and balloting (proposed in the process) has been removed by the Parliamentary Port- folio Committee. Something must be done to address this issue as there are repercussions across the board, including investor confidence.
The amendment of S69(6)(a) which will see picketing rules possibly applying to third parties who are not employers, ie mall owners, will do little to quell the concerns.
There have been numerous delays in the implementation of the act. While all indications were that the implementation date would be October 1, latest developments lean towards a November 1 implementation. At the time of writing the regulations were in the process of being finalised by Nedlac and the CCMA rules redrafted to ensure these are aligned to the amended act.
We need to be pragmatic and honest when analysing the consequences of the amendments. It took the department until late 2012 to finally admit this legislation will lead to job losses.
SA is not in a position where it can lose even one job. As businesses we need to ensure we properly understand the legislation, its impact and then to plan for the proper strategic implementation of same in the workplace to ensure continued success.
UNDERSTANDING IS THE KEY TO CHANGE One of the major aims of the legislation, as verbalised by the Department of Labour in the legislative process, is the ease of access to workplaces for unions There are no real provisions by the government that...