Basic Conditions of Employment Amendment Bill; Labour Relations Amendment Bill: briefing and adoption

Meeting report

LABOUR & PUBLIC ENTERPRISES SELECT COMMITTEE
22 February 2002
BASIC CONDITIONS OF EMPLOYMENT AMENDMENT BILL; LABOUR RELATIONS AMENDMENT BILL: BRIEFING AND FINALISATION

Chairperson: Mr Fenyane

Relevant Documents:
Slide presentation on Labour Law amendments
Basic Conditions of Employment Amendment Bill [B70B-01]
Labour Relations Amendment Bill [B77 - 01 and B77A-01]
NCOP amendments to Basic Conditions of Employment Amendment Bill and Labour Relations Amendment Bill (see Appendix)

SUMMARY
The Department of Labour gave a slide presentation to inform the committee about the reasons for the amendments to the Basic Conditions of Employment Amendment Bill and Labour Relations Amendment Bill. At the end of the presentation a brief discussion ensued, followed by the Chairperson reading out the motion of desirability for the two Bills. There were a few amendments to the two Bills suggested by the Department . Thereafter the Committee agreed to adopt these Bills with these slight amendments.

MINUTES
Committee Programme
Mr Fenyane noted that a draft committee programme is being circulated which the Committee would have to finalise.

There is a need to set and publicise the dates for public hearings on labour laws and small businesses, and child labour in the Western Cape. The Chair noted that the National Legislature feels that this is a matter of great importance.

Basic Conditions of Employment Amendment Bill; Labour Relations Amendment Bill
Mr Les Kettledas (Deputy Director General: Department of Labour) introduced his team: Ms Lisa Seftel (Chief Director: Labour Relations); Mr Thembinkosi Mkalipi ( Director: Collective Bargaining) and Prof. Paul Benjamin (Legal Adviser to the Department).

He noted that both the Labour Relations Amendment Bill and the Basic Conditions of Employment Amendment Bill were a combination of a long process of negotiations. The bills were published for public comment in July 2000. They were then referred to NEDLAC for consideration and negotiations were concluded in August 2001. The Bills were tabled in Parliament in October 2001. Bi-lateral meetings were held with other organisations and the Bills were considered and finalised by the House of Assembly on 19 November 2001.

Ms Seftel presented a slide presentation that explained the reasoning behind and the objectives of the amendments as well as what changes had been made by the National Assembly (see document).

Discussion
Mr E Conroy (NNP) said that he was concerned about the role of a commissioner, particularly whether the commissioner would be stepping into the shoes of a judge.

Ms Seftel replied that commissioners are appointed by the CCMA. A commissioner is akin to an arbitrator, whereas a judge is akin to an adjudicator. In respect of labour relations disputes, there is a provision for arbitrators and less formalised proceedings. With regards to their powers, she explained that that is subject to the guidelines with checks and balances in place especially when it comes to making costs awards.

Prof. Benjamin said that commissioners are not being given new powers. They are now using their powers in an expedited manner. He added that the CCMA proceedings are always subject to review.

Mr Conray gave the example of the current Saambou situation, and the hypothetical example of Nedbank taking over Saambou, and enquired whether in these circumstances, Nedbank would be forced to take over the staff from Saambou.

Ms Seftel replied that that the automatic transfer of staff does not preclude discussions in respect of a take-over of staff.

Mr Kolweni (ANC) raised the issue of the assertions of unfairness in the Bills, particularly with respect to seasonal workers and casual workers. He gave the example of a casual worker, who has been employed for eight years, but who has never been registered.

Ms Seftel said in 1997 the Department had tried to solve this problem, and in the new Bills they are trying to remedy this position of the casual worker with no contract of employment.

Mr Kolweni (ANC) raised the issue of negative perceptions of the Bill, by referring to Slide 3: Addressing policy imperatives.

Ms Seftel gave the example of the problem of a commissioner not having a discretion when awarding compensation, and used the following example: A person claims to be unfairly dismissed and goes to the CCMA. It was found that he did in fact steal and therefore was fairly dismissed. However it was found that the procedure of dismissal was unfair as his boss had merely said, "Get out!". The law states that it is fair to be awarded compensation equal to the salary one would have received from the date of dismissal to date of hearing. If the CCMA process is delayed for nine months before this matter comes before the CCMA, is it fair for somebody who has been fairly dismissed but, due to an unfair procedure being followed, is able to receive extra compensation equal to nine months? Ms Seftel stated that small businesses had been unhappy about this aspect and it was therefore subject to review in the new Bill.

Mr Fenyane raised the issue of the Bill trying to address the issue of abuse of the system (Slide entitled Background) and asked for clarification on the issue.

Ms Seftel replied that the Bill aims to protect one against a labour consultant who pretends to be a trade unionist, and offers legal advice for a fee. A commissioner is adequately trained, and therefore no legal representation at the hearing is required.

Ms Dlulani referred to the Slide: Changes to conditions, and asked for greater clarification on the 45-hour week, especially with regard to farm workers.

Ms Seftel replied that the Minister might vary the 45-hour week where an employee or individual member writes a letter and says that there is a need for a special dispensation for longer hours. For example, an employer writes that he is starting a new business which requires the extra input from the employees to get the business operational. Such special dispensation is a ministerial determination. She also gave the example of the metal workers who agree on a 30-day leave period. The Bargaining Council for the metal workers will appoint its own inspectors, called Agents, who will visit the company, assess all the work environment, factors such as hours etc. and decide that the 30-day leave period might be acceptable.

In connection with farm workers and child labour, she stated that the Minister could make a special determination because of the longer hours put in during the harvesting season, and shorter hours spent in the fields in the winter months. The Minister can look at all these factors and decide on a favourable package for the farm workers. In respect of child labour, she replied that there was no need for a change in our laws relating to child labour.

Mr Fenyane referred to Clause 55 of the Labour Relations Amendment Bill and enquired about the presumptions as to whom an employee is.

Prof. Benjamin replied that the presumptions are brought into operation by one of the factors being present, that it is a rebuttable presumption, so that in casual employment (for example where one is hired to wash a car) there is a once-off relationship. All that the presumption does is makes the employee, who has knowledge of the evidence of employment, able to rebut the presumption. It does not deem your relationship to be one of employment.

Mr Fenyane asked for the view of organised business on this issue and Prof. Benjamin stated that they had agreed with this section.

Mr Kolweni remarked that the Bills were silent in the areas of incentives and fringe benefits for employees.

Ms Seftel replied that there is a two-fold approach to the law. The Basic Conditions of Employment Act must (a) set the minimum for workers who cannot bargain for themselves, and (b) create the framework for an orderly and fair bargaining environment. The incentives/ fringe benefits are subject to this the bargaining which one ensures is fair.

Mr Conroy asked if there is a definition for "child labour", and what does in fact constitute child labour.

Ms Seftel replied that the definition for child labour in the Constitution is relied upon, and that is the guideline used in the bills. She noted that it is the circumstances of the particular case which will determine whether one is employing children for the job at hand. The questions that need to be answered are: is the child still attending school and doing the set homework, whether the job is rather like a chore, how many hours are being spent doing the work/chores? She stated that it all depended upon the circumstances of the case.

No further questions were raised.

Adoption of Bills
The Chairperson read out the motion for desirability for the Labour Relations Amendment Bill. He then read out each clause to which the Committee agreed.

Departmental amendments agreed to by the Committee:
- In clause 45 of the Bill, line 25 was amended to omit "500 employees or more" and substitute "more than 500 employees".

- In clause 48, line 21 was amended by the deletion of the words" substitution of subsection 3" and the substitution of "addition".

- Line 14 was amended by omitting "(3)" and substituting "(4)" in its place.

- Clause 58 contained a technical amendment. In line 36, "2001" was amended to read "2002".

Mr Fenyane thereafter read out the motion for desirability for the Basic Conditions of Employment Bill. Similarly he read out each clause and the committee agreed to the clause.

Departmental amendments agreed to by the Committee:
- In Clause 21, the words " of employment" were omitted.

- Line 28 of Clause 21 was amended by omitting "member" and substituting "part" in its place.

- Clause 24 contained the technical amendment of substituting "2001" for "2002".

In conclusion, Mr Kettledas noted that the reason for the amendments was to create consistency between the Labour Relations Bill and the Basic Conditions of Employment Bill.

The meeting was adjourned without the Committee adopting the programme, as there was insufficient time to do so.