Basic Conditions of Employment Amendment Bill Working Draft 1: Clauses 1 to 7

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Labour

13 November 2012
Chairperson: Mr N Nchabaleng (ANC)
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Meeting Summary

The meeting started off with a discussion about an invitation to visit De Doorns by the Portfolio Committee on Agriculture. They were asked to accompany that Committee on an oversight visit to assess the situation. Initially a DA Member agreed to the proposition and some ANC Members also expressed no objection to the visit. Eventually however, it emerged that most ANC Members were not keen to join the oversight visit. They were concerned about the fact that certain recommendations they had made after a visit there years before, were not implemented. They had made recommendations and requested a report and this had never been done. They were therefore of the opinion that the visit would be pointless since it seemed nothing had been done about their previous recommendations. The Chairperson explained that such a report was supposed to be presented to the Committee in the next few weeks. The Members however still maintained that a visit by them would not be fruitful because they had no solutions. They stated that if the politicians went to De Doorns, the workers would immediately assume that a solution had been found.

The Chief Director of Labour Relations was asked to provide an update on the situation in that area. He stated that a few meetings had been held with the farmers but the farmers were not willing to negotiate. Labour had also rejected an offer of a ten rand increase. The issue with the ten rand increase was that the workers would still have to go and individually negotiate such an increase with their employers. The farmers were alleging that workers had gone back to work and there was therefore no need to negotiate. He said one legal solution was for the Minister to cancel the sectoral determination agreement and file a notice of intention to file a new one. This was because the law stated that the Minister could not amend a sectoral determination within twelve months of issuing it. The Department’s lawyers were however unsure as to the legal validity of these proposed actions. Ultimately the Department was attempting to find a solution to the matter without bypassing legal processes in order to avoid the Minister’s decisions being challenged.

The Committee then turned to a briefing on the new draft of the Basic Conditions of Employment Amendment Bill (Working Draft 1) which incorporated changes proposed by the public hearings and the Committee. No legal issues were identified in clause 1. Clause 3 dealt with prohibited conduct by employers. Employers could not compel their employees to buy certain products from the employer or a person nominated by the employer. The major issue in clause 3 was that ‘employment’ was replaced with ‘work’. This change was made to widen the ambit of the provision although ‘work’ was not defined in the Act. Guidance on the interpretation of ‘work’ could be found in the Children’s Act and in s28(1)(f) of the Constitution. The ambit was widened because it would not cover only the employer but anyone who permitted employers to have a child work for them. Some Members expressed discomfort that ‘ work’ was not defined and asked how it would be determined that a child was working. The response was that the court would look at the effect of the work on the child and whether this was inappropriate for the child’s age or detrimental to the child’s well being. In clauses 5 to 7 there were consequential amendments which changed ‘employment’ to ‘work.’ A Member was adamant that the wording in clause 7 was unclear and had to be changed. This was because it appeared to require the person against whom an allegation was being made to make the allegation himself. The Parliamentary Law Advisor explained that this was the existing wording of the section and the wording had not been changed. The application of the section was clear.

Meeting report

 

Invitation to visit De Doorns
The Chairperson welcomed the Members and the delegation from the Department of Labour. He explained that the meeting was going to be a short meeting because the ANC Members were going to have a caucus meeting. The Chairperson informed the Committee that they were invited by the Portfolio Committee on Agriculture to accompany it on an oversight visit to De Doorns. He asked the Members if they were interested in going on this visit.

Mr S Motau (DA) asked whether the Chairperson had an idea of the dates of the visit.

Mr K Manamela (ANC) suggested that the Committee send two or three people as part of the delegation. He asked for background information about the Ministerial meeting by the Minister of Agriculture, Forestry and Fisheries to review wage determinations.

Mr F Maserumule (ANC) noted that a previous visit had been made to farms in the Western Cape in 2000 and they made recommendations but there were no response as to what happened thereafter. He did not see why they had to go to De Doorns since they had not heard from the Department concerning the recommendations they had made.

Ms L Makhubela-Mashele (ANC) commented that De Doorns was once visited upon the eruption of clashes between foreign nationals and the communities on the farms. A report was tabled on the situation and she requested that the reports be revisited to monitor and see whether the recommendations were acted upon. In those reports the working and living conditions of the workers were included.

The Chairperson stated that there was to be follow-up by the Department of Labour and a meeting was scheduled with the provincial office on Labour so they could brief the Committee on what they had done.

Mr a van der Westhuizen (DA) said he had written to the Committee Secretary to enquire about what oversight visits were planned because such visits usually occurred towards the end of the year. There had also been a request previously for the Committee to visit some of the mines in the North West to see what was happening.

Mr E Nyekemba (ANC) stated that a Department briefing would allow them to decide whether the Committee could go alone to the farms.

Mr Thembinkosi Mkalipi, Chief Director : Labour Relations, Department of Labour, explained that a meeting had been called by the Minister of Agriculture in Cape Town on 10 November. The attempt was to try and persuade the parties to reach a settlement. The media reported that there was an offer of R10 extra per day but the workers had to go and negotiate that with their own management on their individual farms. This proposition was rejected by Labour. The farmers indicated that there was no mandate to negotiate. They were going to have an Agri SA meeting on 12 November in Pretoria to obtain a mandate. The farmers refused to meet and another meeting was held. The farmers were of the opinion that there was no need for negotiation because workers had gone back to work. They were prepared to have a bigger meeting dealing with service delivery issues. The meeting broke down on this basis. The Department looked at the legal possibilities that could help the situation. There was a limitation in the Basic Conditions of Employment Amendment Bill (BCEA) on the Minister’s ability to issue a sectoral determination. The Minister was prohibited from issuing a sectoral determination within 12 months of an existing one being implemented. The Minister was however allowed to issue a notice of the intention of the Minister to cancel the existing sectoral determination. The Minister could then file a notice for a new sectoral determination. He noted that there were differences of opinion between the Department and its legal advisers. The outstanding issue was whether the section of the BCEA that spoke to the limitation was applicable if the sectoral determination was cancelled. The existing sectoral determination was going to be cancelled in order to make way for a new sectoral determination. He spoke to Congress of SA Trade Unions (COSATU) General Secretary, Zwelinzima Vavi, and Western Cape provincial secretary, Tony Ehrenreich. Mr Ehrenreich was adamant that there had to be something on the table to be implemented. Even if it was a simple party to party agreement. This was not possible because it would circumvent the law and lead to a challenge. If the Minister managed to deliver the demand for R150 per day through bypassing the law, this would definitely be challenged.

The Chairperson asked for clarity on whether the sectoral determination could be cancelled or not.

Mr Mkalipi said that there were differences of opinion. The Department’s lawyers were of the view that they would not get away with it if the section did not allow the Minister to make the change. The court could take a different view. However if the Department published a notice of the intention to cancel the sectoral determination and symbolically this would indicate change and that workers could see that steps were being taken to address the issue. The Employment Conditions Commission was meeting on Wednesday as a symbolic gesture because they would not be able to do anything unless a notice was published to deal with the matter. The farmers were not willing to put anything on the table. They were claiming that they did not have a mandate.

Mr van der Westhuizen noted that the sectoral determination had been published in March 2012. He also wanted to know when Minister Oliphant would take up office again.

Mr Mkalipi replied that he did know but perhaps she would be in during the next week.

Mr Maserumule pointed out that “the horses had bolted” already. Their oversight work was supposed to prevent disruption. At the time of their oversight visits, the matter had seemed urgent and they had recommended that the Departments of Human Settlements, Rural Development, Social Development and Health visit the farms. Now, the farm worker strike was already happening and it was better to leave it at that. There was no point in going there because the Committee had already gone there twice.

Mr Nyekemba stated that they had received the brief and they wanted to know where things stood. What informed the Committee to go to the farms? Parliament could not go to the farms without an answer because workers would think that their problems had been solved. The strike had spread across the province. The Department was looking at suggestions. The ECC might have to bring the meeting forward. The Department could not jump into cancelling the sectoral determination without being properly informed. He agreed with Mr Maserumule that there was no need for the Committee to visit the farm because the Department was already trying to find solutions.

The Chairperson commented that the majority of Members said that the Committee should not go on the visit. The Committee was still waiting for a progress report on their previous recommendations and that agenda item was the Committee programme. He directed the Committee deliberate on the BCEA which dealt with the relationship between farmers and their workers.

BCEA Working Draft 1: briefing
The briefing on the first working draft of the Bill was delivered by Adv Anthea Gordon, Parliamentary Legal Adviser. She noted that there were very few clauses flagged in the Bill. The document was simply keeping track of the discussions they had had and was flagging clauses were decisions needed to be taken.

Clause 1
No legal issue was identified.

Clause 2
This dealt with prohibited conduct by an employer and concerned s33A. It spoke to an employer requiring an employee to buy certain products from a business or a person nominated by the employer. In the previous meeting there had been a comparison between the words ‘require’ and ‘accept’. These words were not defined in the Act and would take on their ordinary meaning. S34A currently spoke about deductions but the prohibited conduct was ‘requiring’ and the issue of deductions had not yet been dealt with. A discussion was had on what a financial benefit was.

The Chairperson stated that ‘prohibited conduct’ had been discussed at length.

Mr van der Westhuizen stated that during the public hearings people were concerned about insurance schemes that employers compelled their employees to belonged to and whether this could be in contravention of the section.

The Chairperson stated that there were different schemes and the law was coming in to regulate the fact that you could not force employees to buy from you unless there was a material benefit to them.

Mr van der Westhuizen commented that this could extend to uniforms and protective gear that employees needed to have. The employers would require the employees to purchase these things.

Advocate Gordon added that in s33A (2) there was a built in protection. The section did not preclude a clause in an employment agreement and so this was not an absolute exclusion. However, if such conduct happened, it would have to have a financial benefit.

Mr Mkalipi indicated that safety equipment was regulated. It indicated what you were allowed and not allowed to do. The clause in the BCEA Working Draft indicated: unless the package was regulated by any other statute. The section would not supersede the statute already regulating the issue. He gave an example of the requirement for public sector employees to join a pension fund and this had financial benefits.

Mr van der Westhuizen commented that medical aid was not a benefit unless you got additional benefits.

Ms Makhubela-Mashele stated that in terms of medical insurance some people would benefit more than others in medical aid schemes.

Mr Mkalipi stated that in terms of the medical aid there was no reason for the employer to compel an employee to belong to a particular medical-aid. This was because the same sharing of risk could be grouped together outside the company. If a company was able to ensure that the benefits were financial, for example paying less.

The Chairperson stated that there were instances where workers ended up owing the farmer. Workers were buying goods for double the price. The workers were being charged for transport, time used to purchase the goods and the interest on the loans that were used to purchase the goods. The farmers claimed that the workers were free to purchase goods in town but, if they did so, the workers were subject to security checks that dissuaded them from purchasing goods in town.

Mr van der Westhuizen supported the clause as long as the legal team confirmed that all the variations expressed at the public hearings were addressed. He suggested that the clause be adopted.

Clause 3
This clause was changing the prohibition on ‘employment’ to ‘work’. Everything else in the section remained the same and the only change that was made was the prohibition of ‘work’. The working document explained that the prohibition on work originated from s28(1)(f) of the Constitution which stated that every child has the right not to be required or to be permitted to perform work or provide services that were inappropriate for the child’s age or that would place the child’s well-being at risk. During the previous discussion there was a question as to the parameters of work as compared to employment. There was no absolute answer because work was a loose term. The ILO convention however looked at the prohibition on child labour but each country was free to develop its own domestic law. The Children’s Act also took into account s28 of the Constitution. S141 of the Children’s Act in particular imposed a duty upon social service professionals to report a contravention of the Children’s Act. Due to the change from ‘employment’ to ‘work’, s43 (1) was adapted to include the term, ‘a person must not require or permit’. This was wider than ‘employment’ and rendered every person to breach this liable such as parents, aunts and uncles. This was wider than an employer-employee relationship. The word’ work’ was now in the definition of employee. S43(2) stated that a person was not allowed to require a child to perform work that was inappropriate for the child’s age. This was a built in mechanism that was supposed to act as a check and balance. Although ‘work’ was a broad term there was now a test which could be used to determine whether a child was at risk. There was a blanket prohibition on children under fifteen working. There was an exception for example in the entertainment industry where children could take part in advertisements, sports, artistic and cultural activities.

Mr Kganare stated that the principal Act did not have a definition of ‘work’. This made it subjective. Where could parents draw the line in terms of household chores?

Mr Mkalipi replied that the test for children working would be: what effect would that work have on the child? Would it affect the child or the child’s education? An individual would have to show that the work given to the child was beyond the child’s age. The courts would determine the extent and the effect of the work, if the work was detrimental to the child’s well-being or impair the child’s ability to learn and to be a child.

Mr Nyekemba agreed with clause 3.

Mr Kganare stated that he did not have a problem with the explanation but there was a need to define ‘work’. The intention was to make sure that children were not disadvantaged by being employed and being exploited. The word ‘work’ was loose. Children were staying with relatives and sometimes this is when problems took place.

Mr van der Westhuizen stated that s43(2) qualified the type of work and s43(1) seemed to exclude s43(2). There seemed to be no need for s43(2) because s 43 (1) was almost a definition in itself.

Ms Williams stated that the problem with defining work was that it would make the test objective but this was a subjective issue. Work was an open ended term and the intention was to provide subjectivity. Children’s rights were not individual rights and the definition had to be kept objective. She gave examples to illustrate that South Africa was a diverse society and different backgrounds had to be taken into account.

Adv Gordon added that s43(1) was setting up categories of children. Category 1 was 0-14 years. The general understanding of what a child was, was a person below the age of 18 but for the purpose of s43(1) this concept of a child was not being applied. In contrast s44 in clause 4 dealt with a different category of children and these were children from ages 14-17.

Clause 4
This clause dealt with the regulation of work by children. The words employment in the section were consequently changed to work. There was a new insertion for the Minister to set regulations of the ILO obligation. Members had to note that in s44 (1) was referring to children from 15-17. Even though there was a prohibition on most ages the Minister could set the parameters of what children could do. This was a more onerous amendment.

Clause 5
This was a consequential amendment changing ‘employment’ to ‘work’ and there was nothing contentious.

Clause 6
This was a consequential amendment changing ‘employment’ to ‘work’ and there was nothing contentious.

Clause 7
This was a consequential amendment changing ‘employment’ to ‘work’ and there was nothing contentious.

Mr Kganare stated that the wording of the clause was intelligent. Usually when a person alleges something, the person making the allegation has to prove that the event had occurred. The way the section was worded implied that a person had to react to the allegation that was levelled against a person.

Mr Manamela stated that according to his understanding the person who made the allegation did not have to prove the truth of that allegation. Instead it was the accused who had to prove that the allegation was not true.

Adv Gordon noted that this was one of the nuances she had alerted the Members about. When a person alleged something foul in employment, the employer would have to show that what they did complied with law. There was an obligation on the employer. This was why the person who alleged did not have to prove it. The change in wording to ‘work’ now changed the relationship and there was no longer an employer and an employee. What remained was simply a person and a person. This was why there was a perceived skewed onus.

Mr Mkalipi turned to the issue of age when an employer was accused of employing underage people. The employer would have to produce proof that the person was of working age. No other person had means to prove such an allegation. The onus was reversed towards the person who would have the information.

Mr Kganare did not have a problem concerning who had to provide evidence but the way the section was worded implied that the person making the allegation was the same person who had to prove the allegation.

Mr Mkalipi stated that there were two differing allegations. The employer would allege that the person was of age and the converse allegation would be that the person was not of working age.

Mr Kganare asked why the wording did not state that the person to whom an allegation is made has the responsibility to prove that the allegation was not true. The wording made it seem as if the person against whom an allegation was made, would also make an allegation. His contention was that the wording should be changed.

 Mr Manamela stated that this was essentially a counter-allegation.

Adv Gordon explained that the Committee had to be mindful of the fact that the section only amended the employment and work scenario. Whatever else in the section was already in the Act and wording had not been changed. This was also the way it was understood and the application of the section was correct.

Mr Manamela reiterated that his understanding was that there would be an allegation that a person was underage and there would be a counter-allegation by the employer that the person was of age.

Mr Kganare stated that the wording was still problematic and this had to be worded properly by the insertion of the word counter allegation to make sure that the person initiating the allegation, would not be the person against whom the allegation was made.

Mr Manamela noted the concern but also noted the general consensus with the clause.

The Chairperson gave a practical example of a visit to Mpumalanga with the Minister of Labour. The child looked 12 but the farmer was alleging that the child was 20. In that scenario it was difficult to prove the age of the child. The burden of proof usually rested with the person making the allegation.

Adv Gordon gave the Chair a recap of what had been said in his absence. She explained the concerns that were noted concerning who had to prove certain allegations.

The meeting was adjourned.

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