Labour Relations Amendment Bill [B16-2012] & Basic Conditions of Employment Bill [B15-2012]: deliberations

Meeting report

Deliberations on the Labour Relations Amendment Bill and the Basic Conditions of Employment Amendment Bill
Mr S Motau (DA) suggested that the Bills were deliberated on by the Committee.  A sub-committee could be appointed if a section of the proposed legislation was controversial or required further investigation before it was proceeded with.  He suggested that the Committee dealt with the Basic Conditions of Employment Amendment Bill (BCEA) first.

Adv Anthea Gordon, Parliamentary Legal Adviser introduced Dr Barbara Loots, Parliamentary Legal Adviser and Ms Zuraya Williams from the Office of the State Law Adviser.  The role of the Parliamentary Law Adviser (PLA) was to assist the Committee by providing clarity and guidance on the legality of the Bills.  The Department of Labour (DOL) and the State Law Adviser would take the Committee through the clauses in the Bills. As the Bills contained substantive changes, representatives from the DOL should be present during deliberations.

Mr A Van der Westhuizen (DA) said that the submission received from the South African Society for Labour Law (SASLAW) had commented that references to the Constitution in the principal Act were incorrect. The Amendment Bill did not include corrections. He asked the PLA to clarify if the comment was valid and to propose appropriate wording. Certain amendments were the result of a compromise between organised labour and organised business. In his experience, such compromises had resulted in the relevant clauses being phrased in a vague and ambiguous manner. Legislative provisions needed to be clear to avoid legal challenges. He asked the legal advisers to advise the Committee where clauses were not phrased clearly.

The Chairperson said that the Committee would assume that the technical references in the Bills were correct.

Ms Williams explained that the SLA was responsible for the drafting of the Bills. As the Bills were now in the Committee phase, the DOL was no longer responsible for the legislation. The SLA would draft the amendments agreed on by the Committee. Depending on the extent of the amendments, either a re-drafted Bill or an A-list would be submitted. Insertions were underlined and deletions were enclosed in square brackets in the Bills.

Mr Thembinkosi Mkalipi, Chief Director: Labour Relations, DOL introduced Mr Xola Mnene, Parliamentary Liaison Officer, Mr Herbert Mkhize, Adviser to the Minister of Labour, Mr Niresh Singh, Deputy Director and Ms Ntsoaki Mamasela, Director.

The Chairperson asked the Department to clarify the comment made during the public hearings that the proposed legislation was intended to address policy issues rather than legislative issues.

Mr Mkalipi explained that Government policy was formulated in the first instance. Policy imperatives had to meet legislative requirements. Legal imperatives did not drive policy direction.

Deliberations on the Basic Conditions of Employment Bill [B15-2012]
Mr Mkalipi took the Committee through the clauses in the Bill.

Clause 1
Section 1 of the principal Act dealt with definitions. Technical amendments were made to the definitions of “sector” and “serve”.

South Africa did not have a general minimum wage but minimum wages were applicable to certain sectors.  The proposed amendment to the definition of “sector” limited sectoral determinations to employees and employers in the relevant sector.

The definition of “serve” referred to the serving of papers or documents.  The proposed amendment made provision for documents to be served by means of electronic mail, for example emails, Twitter, Facebook or short message service (SMS).  Telex was obsolete and was omitted.  The insertion of the phrase ‘or any prescribed method of service’ allowed for flexibility in allowing new communications methods to be included by regulation.  The important consideration was that there was evidence that the documents had been served on the other party.

Clause 2
Section 33A was inserted in the principal Act. AgriSA and Agri WesCape had raised objections to the proposed amendment in their submissions.  The intention of the amendment was to prohibit the inclusion of a clause in an employment contract that forced an employee to purchase goods and services from the employer to their detriment.  For example, farm workers being forced to purchase goods or services from a farmer.  Workers did not have a choice and could be exploited by the employer.  The provisions did allow the insertion of such a clause in an employment contract if the employee derived a financial benefit, the price of the goods or services was fair and reasonable and not prohibited by any other statute.  For example, where the employer was able to offer membership of a medical aid scheme that provided more benefits than another scheme.  The term ‘financial benefit’ had a wide meaning.  All parties at the National Economic Development Labour Advisory Council (NEDLAC) had agreed to the provision.

Mr Van der Westhuizen said that the Democratic Alliance (DA) fully endorsed the intention behind the clause, i.e. the eradication of exploitation of vulnerable workers by the employer.  He asked if the allowable scheme had to meet all the requirements in sub-clause 2 (a), (b) and (c).  Insurance provided peace of mind rather than a financial benefit.  He asked if the requirement that the benefit to the employee was a financial benefit was not too limiting.

Mr Motau remarked that paying a reduced price for an item did not necessarily mean a saving.

Adv Gordon said that the words ‘financial benefit’ must be read together.  The dictionary definition of ‘financial benefit’ was that a monetary benefit was derived.  A financial benefit did not necessarily require the handover of money.  The acceptance of a quote for a medical aid scheme that offered more beneficial terms could also be regarded as deriving a financial benefit.  The Bill had to be considered within the context of the principal Act.  Section 34A of the Act made provision for the employer to deduct contributions for insurance and medical aid benefits.  Section 33A dealt with the employee having to pay for goods, products and services.  The proposed amendment stated that ‘an employer must not require or accept any payment by or on behalf of an employee’.  The word “require” implied that the employee was forced to make the payment and was not allowed a choice.

Mr Mkalipi pointed out that a financial benefit could not be considered to be beneficial if the price was unreasonable or unfair.  Any contractual obligation on the employee to pay for something had to be proven to be more beneficial than any alternative.

Clause 3
Section 43 of the principal Act dealt with child labour. Currently, the Act prohibited the employment of children.  South Africa was a signatory to the International Labour Organisation (ILO) Convention on child labour, which required signatories to reflect the resolutions in legislation.  The ILO Convention specified that work by children was prohibited, regardless of whether or not payment was involved. The proposed amendment substituted the words “employment of children” with “work by children”. In addition, a person must not allow a child to work. The provision addressed cases where the employer tacitly allowed children to work on his premises. The provisions prohibited anyone from expecting a child to do work that was hazardous to the mental or physical health of the child or risked the child’s spiritual, moral or social development. The provisions did not mean that a child was not expected to do any work whatsoever.

Adv Gordon advised that the clause was drafted in accordance with the ILO Convention and section 28 (f) of the Constitution. The BCEA dealt with employment and the inclusion of provisions dealing with work was open to debate. The legislation should not allow a loophole because there was a different interpretation of ‘work’ and of ‘employment’. There was no history of case law on the issue of ‘work’ versus ‘employment. Consideration had to be given to how ‘work’ detracted from the concept of payment for service applicable to ‘employment’. Section 43 (a) (b) applied to children under the school-leaving age, which was currently age 15. The BCEA defined a child as a person under the age of 18.  She asked the DOL to clarify the apparent contradiction. She suggested that the word ‘person’ in section 43 (2) (a) was replaced by the word ‘child’.

Mr D Kganare (COPE) pointed out that many children had what was known as ‘piece jobs’ to earn money, for example caddying, gardening and delivering newspapers. He asked if such work would be considered to be inappropriate for the age of the child.

The Chairperson remarked that children used to do piece jobs in order to earn money to pay for school fees. This was no longer necessary as provision had been made by Government to cover the cost of education.

Mr Motau related that he had been a caddy during weekends and school holidays.  His earnings had allowed him to contribute to his school fees. He had enjoyed the work and did not consider such work to be detrimental or to prevent a child from getting an education. He cautioned against legislative changes that would prohibit healthy practices. A practical approach was necessary.

Mr F Maserumule (ANC) pointed out that monitoring by the state was ineffective. Child labour was common practice, particularly in rural and very poor areas of the country.

Mr Kganare agreed that children should not be working in factories nor doing work that would compromise their health. He did not consider appropriate work during weekends and school holidays to be necessarily detrimental to a child. He supported the intention behind the provisions but felt that some flexibility had to be allowed.

Mr Mkalipi accepted that children needed to learn the value of work from an early age.  The test was whether a parent was happy with the type of work done by his child, regardless of the reasons.  He acknowledged that there were instances where it was acceptable for children to do work.  For example, children worked in the performing arts or in advertising.  Provision had been made for the Minister of Labour to issue a proclamation that specified the conditions under which children were allowed to do the work.  Anyone could approach the Minister with a request to allow children to do work but there was no guarantee that the request would be granted.

Mr Mkalipi explained that the age limit applicable to children doing work was different from the legal majority.  Age 15 was the minimum school leaving age and the age from which a minor would be allowed to work, provided that such work was not detrimental to the health of the child.  He agreed to consider the definition of “child” in the Act to ensure that there was no contradiction.  Many children worked to allay poverty and starvation.  All parties needed to work together to ensure that resources were mobilised to ensure that children did not starve.  The insertion of the word ‘work’ in the legislation prohibiting child labour gave effect to the ILO Convention ratified by South Africa.

The Chairperson remarked that South Africa did not have an exemplary history of child labour.  Poverty forced children to work and earn money to support the family.  The Committee had to ensure that appropriate, non-harmful work done by a child was not against the law.

Mr Motau agreed that certain types of work were inappropriate for children.  He agreed that children needed to learn the value of work.  He asked how work done by children outside school hours in order to gain work experience was affected.  The Bill included severe penalty provisions.  He asked if it was appropriate to punish parents who allowed their children to do work that were not harmful.

Mr Kganare said that it was not acceptable that children worked on farms and in shops.  There was a difference between children working to earn money for luxuries and working to ensure that the family did not starve.  He suggested that the legal team considered allowing children to do work that was not harmful.

Mr Mkalipi pointed out that an employer was legally required to deduct Unemployment Insurance Fund (UIF) contributions when an employee worked more than 24 hours per month.  If a child worked for longer than 24 hours per month, he would be considered to be an employee.  All work by children was not prohibited and there was no restriction on approaching the Minister for permission to employ children.  The issue of poverty being the reason why children worked had to be addressed as a separate issue.  Children could be taught the value of work in other ways, for example by doing household chores.

Ms Williams advised that the Constitution and the Children’s Act defined a child as a person aged 18 or under. An unqualified reference to a child meant that the person was aged 18 or younger. Work by a child was qualified as applicable to persons aged 15 or younger.

Ms L Makhubela-Mashele (ANC) agreed with the objectives of the Bill. She pointed out that the Child Support Grant had been extended to include children under the age of 18. There was no valid excuse for sending children out to work in order to earn money for their upkeep.  It was common practice in rural areas to use children to look after other children in the absence of the parent.  It was not likely that labour inspectors would check on children doing work in private households.

The Chairperson added that children in rural areas were required to herd goats and cattle before going to school.  He did not consider such work to be detrimental, provided that the child was not subjected to abuse and was not prevented from going to school.  He agreed that the monitoring of school attendance by inspectors was ineffective.

Mr Kganare said that technically, the owner of the goats would be required to deduct UIF contributions if herding duties took longer than 24 hours per day and risked being sentenced to a term of six years in jail.  He urged the Committee to be realistic on the issue and avoid unintentional consequences.

Ms Makhubela-Mashele said that children in an ideal world would not be expected to get up at an early hour to herd goats before going to school.  Children also did work in return for food.  She felt that children should be allowed to play rather than to do work.

Ms H Line (ANC) expected her own children to do household chores. She had found that children were well-informed about their rights. She considered the provisions in the Bill to be adequate.

Mr Maserumule said that the issue was the responsibility of adults. Awareness of the legislation had to be increased. He disagreed that all children were aware of their rights as children in remote areas did not have access to electronic media.

Mr K Manamela (ANC) remarked that it was difficult to apply anecdotal experience to legislation.  The concept of ‘work’ had a broader interpretation than ‘employment’.  Employment involved both employers and employees.  In many cases, children worked because of adverse social conditions. The proposed amendments did not imply that socially necessary work would interfere with the education and health of the child.  It was a reality that children under the age of 18 were working on farms. The labour inspectorate would need to determine if the well-being of a child was threatened.

The Chairperson said that the underlying consideration was to provide protection for vulnerable members of society. He did not think that the provisions prohibited children from doing household chores, provided that the work was in accordance with section 43 (2) (b).

Ms Williams pointed out that two prohibitions were included in section 43, i.e. to require and to permit.  There was a difference between forcing a child to do work or permitting a child to work and a child choosing to do work of his own free will.

The Chairperson said that the ILO Convention on child labour was intended to protect children from exploitation. The use of child labour was historically more common in other countries than in South Africa.  Anyone could alert the labour inspectorate to investigate when abusive practices were suspected. Parents were often unaware that their children were doing work to earn money.

Mr Manamela said that it was necessary to consider the provisions in the ILO Convention.  ‘Work’ was generally understood to involve some benefit (not necessarily monetary reward) in return for services rendered. The work might be done out of social necessity and there might not be bad intentions. The inclusion of the phrase ‘must not require or permit’ in section 43 (1) was acceptable.

Clauses 4, 5, 6 and 7
The clauses were consequential amendments to clause 3.  The clauses amended sections 44, 45, 46 and 47 of the principal Act. The amendments replaced the words ‘employment’ with ‘work’ and ‘employer’ with ‘any person’.

The Chairperson advised that deliberations would resume on Tuesday, 18 September 2012.

Consideration and adoption of minutes of Committee meetings
The Committee considered and adopted the minutes of meetings held on 7 August 2012 and 21 August 2012, without amendments.

Consideration and adoption of report on Committee study tour to Germany
The Committee considered the draft report on the study tour to Germany in March 2012.  Members pointed out several typing, syntax and spelling errors for correction before the final version of the report was issued.  The report was adopted, with amendments.

The meeting was adjourned.