Amendments to Legislation ABC Sector Meeting 9 March 2011

Agenda Amendments to Labour Relations Act Amendments to Basic Conditions of Employment Act (BCOE) Amendments to Employment Equity Act (EEA) Introduction of new Employment Services Bill.

Amendment to Labour Relations Act Section 147 – Performance of Dispute Resolution. These functions may now be performed by the Commissioners at CCMA under exceptional circumstances. (previously was at Labour Court) Question – how can CCMA intervene in an agreement with an employee (who is very senior at a company) and the employer when they have an agreement between them?

Amendment to Labour Relations Act Section 186 New insertion – CCMA can intervene in strike action if it is in the public interest. This will have implications on the right to strike for unions.

Amendment to Labour Relations Act Section 189A New insertion – threshold of earning above R pa can no longer be referred to CCMA on Sections 185, 186, 188, 189A or 197 labour disputes for free. This implies that there is NO representation for these people!

Amendment to Labour Relations Act Section 198 Temporary Employment Services (TES) Repealed in its entirety! A TES will now have to act as a permanent placement agency only. Have to register with DoL and pay a fee for registration Violation of right of TES to conduct business Namibia has NOT banned TES. Declared as unconstitutional to do so.

Amendments to Labour Relations Act Section 200A – Presumption of who is an employee. This refers to any person who is employed in any capacity is referred to as an employee – i.e.: permanent. Entitled to full benefits of permanent employees

Amendments to Labour Relations Act Section 200B All temporary employees (FTC) are declared permanent unless a company can justify why they require temporary staff – i.e.: seasonal workers. Receive all benefits as per a permanent employee!

Amendments to Labour Relations Act Section 200C – Liability of Client Company in Sub-Contracting States the employee of a sub-contractor must litigate against the principal user as well in respect of allegations of unfair labour practices. The employee must have recourse against the employer and its client company where there is unfair labour practice.

Amendments to Labour Relations Act Section 213 includes new definitions of employer and employee – requires direct supervision, direction and remuneration. New definition of employer means any person, institution, organization, or organ of state who employs or provides work to an employee or any other person & directly supervises, remunerates or tacitly or expressly undertakes to remunerate or reward such employee for services rendered New definition of employee means any person employed by or working for an employer, who receives or is entitled to receive any remuneration, reward or benefit & works under the direction or supervision of an employ

Amendments to BCOE Act Section 32 Insertion as per LRA – employers must contribute benefits similar or of similar value to employees on FTC. Can be seen as a disincentive to employment as an employer may not employ casual staff. Permanent staff benefits will be the benchmark used.

Amendments to BCOE Act Section 55 – Sectorial Determination Give the Minister of DoL right to make a Sectorial Determination at any time at a Bargaining Council. Example: Bargaining Council state minimum wage R and a company pays R pm. Minister may impose Sectorial Determination that all wages must be as per Bargaining Council. No negotiation on pay rates Can also impact on % of union fees which exclude Non Cosatu unions.

Amendments to BCOE Act Repeal of Sections 68,69, 70, 71,72,73 Impact of this allows that the DoL may take a company straight to court or give a fine! Very litigious!

Amendments to BCOE Act OFFENCES AND PENALTIES It is a criminal offence to contravene the following provisions Minimum Applicable fines Minimum term of imprisonment Section 9. 1D , 16, ,22.25, and 34A R months imprisonment Section 33AR months Section 39, 40 and 41R months imprisonment Section 43[3] 6years Section 44[3] 6years Section 46[3] 6years Section 48[3] 6years Sections 65 and 66 R months imprisonment Section 90(1), (3) and 92(a), (d), (e), (f) 1 year Section 92(b)Applicable legislation must be used to determine imprisonment

Amendments to EEA Section 6 – Prohibition of Unfair Discrimination. Equal work for Equal value! How is performance management conducted and rewarded?

Amendments to EEA Section 20 – EE Plan Fines will be imposed from 2% to 10% of turnover if anything in the reporting and the plan is out of line! Inspectors no longer need to issue undertaking requests and compliance orders but can take company to Labour Court immediately with fines of between 2% and 10% of turnover Submission of reports is EVERY year for ALL companies regardless of size. Schedule 4 – Total Turnover for BEE Reporting has been increased from R2 million to R5 million for compliance

Amendments to EEA Section 27 Income Differential and Discrimination Reporting on the EE Plan must include the remuneration and benefits received in each occupational category and level of the employers workforce and where disproportionate income differentials or unfair discrimination in terms and conditions of employment are reflected, the employer must show how this will be rectified.

Amendments to EEA Section 42 /43– Assessment of Compliance Allows the DG to review the EE plan and progress is made more inspector-friendly in that employers have to prove they have taken reasonable steps to generate skills of under-represented designated persons and the like (learnerships, apprenticeships are excellent in this regard to show progression). No differentiation between national and regional demographics – will measure against national demographics only.

Previous ContraventionContravention of any Provision of Sections 16,19,20,21,22,23 and 27 No previous contravention 2% of turnover A previous contravention in respect of the same provision 4% of turnover A previous contravention within the previous 12 months or two previous contraventions in respect of the same provision within three years 6% of turnover Three previous contraventions in respect of the same provision within three years 8% of turnover Four previous contraventions in respect of the same provision within three years 10% of turnover Substitution of Schedule 1 of Act 55 of 1998 The following Schedule is hereby substituted for Schedule 1 of the Principal Act:

Employment Services Bill The purpose of this Bill is to provide public employment services; To provide for the registration of private employment agencies; To provide for the establishment of the Employment Services Board; To provide for the establishment of Productivity South Africa ;

Employment Services Bill This Bill will have an impact on the Labour Relations Act 1995 in that Section 198 (TES) are REPEALED. And On the Skills Development Act, 1998, that are REPEALED, in the following: 1.The deletion of the definition employment services 2.Sections 2 (1)(g) and (h), 2(2)(a)(v) and (xii), 5(4) in so far as it relates to Productivity South Africa, 22(1), 23(1)(a) and (d), (2) and (3), 24,25,26,26K,26L,26M,26N,32(1) and (20,33,36(a), (o),(p) and (q). 3.Item 7 of Schedule 2A and Schedule 4 4.Any other provision in so far as it relates to employment services or Productivity South Africa, as established by section 26K.

Employment Services Bill Work seeker means any person, and includes a legal foreign worker, who is unemployed and is looking for work. Note here that there is no linkage to the Employment Equity Act in regard to EE reporting and where to include foreign workers in the demographics and statistics! Essentially this Bill will ensure that there are Private Employment Agencies and Public Employment Agencies (DOL Labour Centres). There is no provision for TES Agencies.

Employment Services Bill Chapter 2 – Public Employment Services 10 – Reporting on vacancies and filling of positions. Employers have to notify the Labour Centres of any vacancy or new position in their establishment within 14 working days after the position became vacant or was created. The Labour Centre will provide suitable candidates to fill the vacancy to the establishment for interviewing. Should the establishment not accept one of the Labour Centre candidates, the establishment must provide written reasons for declining the candidate to the Labour Centre.

Thank you for your time and for listening to this presentation. Any questions? Janelle Gravett