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LABOUR PORTFOLIO COMMITTEE
5 March 2002
BASIC CONDITIONS OF EMPLOYMENT BILL, LABOUR RELATIONS AMENDMENT BILL: NCOP AMENDMENTS; ILO CONVENTIONS 144 & 155
Chairperson: Ms. E Thabethe (Acting)
Select Committee on Labour & Public Enterprises Proposed Amendments (see Appendix)
LABOUR PORTFOLIO COMMITTEE
Basic Conditions of Employment Amendment Bill [B70B-01]
Labour Relations Amendment Bill [B77B-01]
PowerPoint presentation on ILO Conventions 144 and 155
Draft Committee Programme
The Committee accepted the amendments proposed by the National Council of Provinces to the Basic Conditions of Employment Amendment Bill and the Labour Relations Amendment Bill. The Committee was also briefed on ILO Convention No 144 dealing with tripartite consultation, and Convention No 155 dealing with occupational health and safety. The Committee will recommend that Parliament ratify the Conventions once they have been referred to the Committee.
Ms. Thabethe noted that a draft programme was being circulated which the committee would have to finalise.
Basic Conditions of Employment Amendment Bill; Labour Relations Amendment Bill
Mr. L Kettledas (Deputy Director General: Department of Labour) introduced his team consisting of Mr T Mkalipi (Director: Collective Bargaining); Mr. S Ndebele (Director: International Relations) and Ms. S Matlako (International Relations Directorate).
Mr. Kettledas briefed the Committee on amendments proposed by the NCOP to the Labour Relation Amendment Bill. He explained the reasoning behind amending Clause 45 as in subsection (iv) and (v) of the clause there creates a confusion as to which subsection the employer falls in. Clause 48 was amended to bring the legislation in line with existing law. Clause 58 was merely a technical amendment.
Thereafter he referred to the Basic Conditions of Employment Amendment Bill:
- Clause 21 was amended as the Labour Relations Act, where a similar provision is found, does not contain the words "of employment". It was felt that there was a need for consistency between the two pieces of legislation.
- In Clause 28 "member" was substituted with "part".
Mr. Clelland (DP) asked what the loophole would be if the words "of employment" in Clause 21 (LRA) were included. Were there serious legal implications surrounding the amendment, or was it done merely out of tidiness?
Mr. Kettldas replied that it was done out of tidiness so that one is not left with two pieces of legislation which differ. If the phrase "contract of employment" is left in the Bill it would have the effect of narrowing the contract. As you have different types of contracts, if these words are retained, it would limit the interpretation of the contract.
Mr. Clelland asked about the corollary, and whether the words "of employment" widened the scope of the contract and unwittingly included other types of contracts.
Mr. Kettledas replied that it did not, as one would still have to see whether one falls under the presumption of an employer or not.
The Department was asked if there is mention in the Unemployment Insurance Bill (UIB) of the words "a member" .
Mr. Kettledas replied that the only context in which "member" is used in terms of the UIB is in relation to membership of the board, for example where organised business has three members on the board. He stressed that the words were not used in the same context.
Mr. Durand (NNP) referred to Clause 21 (c) and stated that in the case of a close corporation, a member has a different status, as a member in a close corporation means a shareholder or a part owner. He asked if that would not cause confusion to a reader.
Mr. Kettledas replied that it would not cause confusion as in this Bill it refers to a trade union where a person is "part" of that union. In this context when a person works for an organization, he is part of that organization, and not a member thereof.
The Committee agreed to the amended clauses.
ILO Convention No 144 and No 155
Mr. Kettledas briefed the Committee on these International Labour Organisation conventions. Convention 144 aims to encourage effective consultation between representatives of government, employers and workers on International Labour standards
. Convention No 155 aims to encourage a coherent policy on occupational safety and health in the working environment.
Mr Clelland commented that in the presentation on Convention 155, Mr. Kettledas referred to the Labour Inspection Convention (the LIC). He asked if South Africa wants to ratify the LIC as well. He noted that there were problems associated with the LIC and asked how does one deal with them.
Mr. Kettledas replied that he had referred to the LIC to give more clarity on the issue of priority conventions, as in the International Labour Organization (ILO) it is one of the four conventions which have been prioritised. He stated that Nedlac and SADC are in the process of passing resolutions to ratify Convention 155. He pointed out that the manner in which inspections are done is in compliance with international standards, and the question of whether or not we have enough inspectors is another issue altogether.
He emphasized that there is no sense in delaying the decision on whether the Convention should be ratified or not, as they believe that South Africa should ratify Convention 155 as it is a good piece of legislation. The Convention can be used to harmonize other pieces of legislation. He used the example of the development of the Code of Good Practice for the Safe Use of Chemicals. He stated that if you want to give teeth to that legislation, there is the need for that legislation to be in line with this Convention. He stressed that in Africa, one should encourage member states to ratify the Convention so that practice and legislation can be brought into line with the spirit of this Convention.
Ms Thabethe noted that Article 9 of Convention 155 talks about enforcement procedures. She asked if member countries had to have penalties in place before ratification of the Convention.
Mr. Kettldas replied that adequate and appropriate systems of inspection are in place in South Africa, and gave the example of the mining sector with its checks and balances. He stated that the Occupational Health and Safety Act contains provision for penalties, whereby people are prosecuted for non-compliance with the Act.
Mr. Clelland asked what is South Africa's obligation to the ILO once the convention is ratified. What is the competence of the ILO to intervene in our regime? He also asked what happens if, at a later stage, something in the Convention is contrary to SA law.
Mr. Kettledas replied that provision has to be made in our legislative framework for such a possibility. If it is found that South Africa is not complying with the Articles contained in the Convention, the ILO can intervene and ask what steps are being taken to rectify the problem. He stated that an employee can write to the ILO and complain that the South African government is not complying with one of the Articles of the Convention. The South African government would have to appear before the ILO and explain its non-compliance. He gave the example of Ethiopia appearing before the ILO on the basis of complaints that during the war, employees were removed from their jobs and deported. Unlike the WTO, where no sanctions are imposed, the government would have to account for its actions.
Mr. Kettledas referred to Article 13 and stated that where a worker has removed himself from the work environment because of, for example, exposure to chemicals, that worker is not allowed to be dismissed for his refusal to work in a situation where there is a danger to his health. He stated that Article 19(6) has the same effect.
Ms. Matlako (International Relations Directorate) added to the reply on how the ILO monitors member states, saying that there is a committee of experts which is an effective body which can make direct requests to member states to ensure that they comply with the Convention. Mr Kettledas continued that this body of experts is widely representative of the member states as it is drawn from different regions of the world and it is constituted of eminent legal persons.
Ms. Thabethe highlighted the fact the Convention is not gender sensitive in its use of terms such as "himself" and it should be non-discriminatory. In conclusion, she stated that once the Conventions have been referred to Parliament, a committee meeting would be scheduled to formally recommend ratification or rejection of the Conventions, though in all likelihood the Conventions would be ratified.
Select Committee on Labour and Public Enterprises Proposed Amendments
Labour Relations Amendment Bill
1. On page 17, in line 25, to omit "500 employees or more" and to substitute "more than 500 employees".
1. On page 21, in line 13, to omit "substitution for subsection 3", and to substitute "addition".
2. On page 21, in line 14, to omit "(3)" and to substitute "(4)".
1. On page 29, in line 36, to omit "2001" and to substitute "2002".
Basic Conditions of Employment Amendment Bill
1. On page 7, in line 21, to omit "of employment".
2. On page 7, in line 28 to omit "member" and to substitute "part".
1. On page 8, in line 42, to omit "2001" and to substitute "2002".