Public Comment Invited On A Slew Of Proposed Labour Bills
 Poor practice is often difficult to rectify. It was a feature of the pre-1994 Government, to invite public comment on important proposed Labour legislation immediately prior to, or during the annual shut-down period. After months of intense speculation, wide scale publicity and anticipation, the Labour Minister, Nelisiwe Mildred Oliphant and the Department, true to form, had a slew of controversial Labour Bills published for public comment in Government Gazette No. 33873 of 17 December 2010. The good news for the Business sector on this occasion was the two month period for comment given.
The Bills, if enacted in current form, will impact on a number of existing employment laws, notably in the form of sweeping changes to the Labour Relations Act (LRA). It is intended that the LRA be amended to align employment laws to achieve “decent work” (not defined), regulating sub-contracting, contract work and out-sourcing. The explanatory memorandum attached to the Bill quote the following from the ruling political party’s election manifesto; “in order to avoid exploitation of workers and ensure decent work for all workers as well as to protect the employment relationship, introduce laws to regulate contract work, subcontracting and outsourcing, address the problem of labour broking and prohibit certain abusive practices”.
The Bill also seeks to introduce major changes in respect of temporary employment, the functions of Statutory and Bargaining Councils and the jurisdiction of the Labour Court. It also attempts to limit employees earning in excess of an amount determined by the Minister in the Gazette not to refer certain labour disputes to the CCMA. This will effectively mean that those employees will only have recourse to the Labour Court relief in respect of such disputes.
The unnecessary use of fixed-term contracts of employment will be prohibited and the proposed amendment makes it clear that an employer will be required to demonstrate the justification of hiring an employee on a fixed-term contract. This proposal should require close scrutiny by employers in the construction sector.
It is of interest to note a regulatory impact assessment conducted by the University of Cape Town’s Development Policy Research Unit, labour law specialist Prof Paul Benjamin and consultancy, SBP, for the labour department and presidency during December 2010 warned that major damage could be inflicted on the labour market if some of the proposals are put into effect.
Due to the tone of the rhetoric since the ANC Polokwane Conference, the proposed amendments are predictably not employer friendly. It will be a vexing question how the President and his Cabinet will reconcile the proposed amendments with dire need to create 5 000 000 jobs. It is anticipated that if enacted, some of the provisions may be open to challenge in the Courts.
Government Gazette No. 33873 also contains a number of other draft Bills such as the Basic Conditions of Employment Bill of 2010, the Employment Equity Bill of 2010, and a new Employment Services Bill.
Of particular concern to employers should be the proposal of imposing penalties for contraventions of the Employment Equity Act linked to the annual turnover of the employer, similar to that in the Competition Act.
Readers wishing to access the contents of Government Gazette No.33873 may do so by clicking on the following links:
Labour Relations Amendment Bill: Draft, 2010
Basic Conditions of Employment Amendment Bill, 2010
Employment Equity Amendment Bill, 2010
Employment Services Bill 2010
Interested parties have an opportunity to submit written comments on the Bills to : Thembinkosi Mkalipi or Maria Briedenhahnn, Private Bag X117, Pretoria, 0001, or faxed to 012 309 4156 by not later than 17 February 2011.
Pieter Rautenbach |
