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

Meeting report

Letter from Business Unity South Africa (BUSA)
The Chairperson advised that BUSA had raised concerns regarding the representation of the input of organised business into the Bills in a letter to the Committee dated 8 November 2012.  The letter was referred to the Constitutional and Legal Services Office of Parliament for advice on how the Committee should proceed with the matter.

Advocate Anthea Gordon, Parliamentary Legal Adviser summarised the concerns raised by BUSA, i.e. that the Department of Labour (DOL) had misrepresented the position of the business sector, specifically regarding the twelve month period in respect of a-typical employment.  BUSA also objected to the Committee allowing Professor Paul Benjamin the opportunity to correct more than mere technical amendments in the proposed legislation.  BUSA requested another opportunity to address the Committee on the matter.  BUSA had referred to the records of the Parliamentary Monitoring Group (PMG) of the Committee’s meetings on 16 and 24 October 2012.

The advice from the Parliamentary Legal Adviser pointed out that the PMG reports and audio recordings of the proceedings were not the official minutes of Parliament and could not be used to give legal weight to any challenge to the proceedings of the Committee.  Allegations concerning misrepresentation by another party had to be supported by the minutes and audio recordings of the Committee.  BUSA did not request the Committee to act on the allegation that its interest had been misrepresented but merely requested another opportunity to address the Committee.

The Committee had conducted public hearings on the Bills, during which BUSA had made written and oral submissions.  The advice from the Parliamentary Legal Adviser was that the Committee allowed BUSA the opportunity to make another presentation.

Mr Thembinkosi Mkalipi, Chief Director: Labour Relations, Department of Labour said that Prof Benjamin had attended the proceedings of the Committee in his capacity as a legal adviser to the Department to provide input on the technical changes that had to be made to the Bills.

The Chairperson advised that copies of the letter from BUSA and the memorandum from the Constitutional and Legal Services Office would be made available to Members of the Committee.  He invited comment on the matter from Members.

Mr E Nyekemba (ANC) agreed that there should not be reliance on the reports of third parties.  The Committee Secretary compiled the official minutes of the proceedings and kept the audio recordings of the meetings.  He recalled that the Committee meetings were also attended by Mr Chris Todd (who was a member of the National Economic Development Labour Advisory Council (NEDLAC) drafting team).  As a member of NEDLAC, BUSA had the opportunity to participate in the drafting of the legislation and had made a submission to the Committee during the public hearings on the Bills.

Mr A Van der Westhuizen (DA) agreed that BUSA had been given the opportunity to provide input during the public participation process.  If BUSA was allowed another opportunity to address the Committee, other interested parties might demand another opportunity as well.  He asked what particular aspect of the input given by Prof Benjamin was regarded by BUSA to be a misrepresentation of the interest of the business sector.  He felt that the request from BUSA to be granted another opportunity to address the Committee should be refused.

Mr A Williams (ANC) agreed that BUSA had had the opportunity to provide input into the proposed legislation and that it was not necessary for the Committee to hear further input. 

Mr D Kganare (COPE) agreed that the Committee would be setting a bad precedent if the request from BUSA was agreed to.  He felt that the request from BUSA should not have been entertained.

The Chairperson responded that the communication from BUSA had to be circulated to Members. 

Ms Zuraya Williams, State Law Adviser pointed out that the Bills would be considered by the National Council of Provinces (NCOP) as well.

The Chairperson said that the Committee should be informed if other parties were invited to participate in proceedings.  The Parliamentary Legal Advisers advised the Committee on legal aspects.  The legal opinion provided to the Committee could not be changed by other lawyers.

Ms H Line (ANC) understood that the DOL and the State Law Advisers did not agree on certain issues.  The Department had consulted its own legal advisers who had subsequently presented their views to the Committee.

Advocate Gordon referred Members to paragraph 14 of the memorandum.  Although Parliament was obliged to facilitate public involvement in its processes, significant leeway was allowed to the Committee in meeting the obligation.  There appeared to be agreement amongst the Members of the Committee that the request from BUSA for another opportunity to address the Committee should be declined.  The misconception by BUSA that another party had been allowed a subsequent opportunity to provide input had to be corrected.

The Chairperson said that the proceedings were attended by the legal advisers of the DOL and BUSA.  The Committee could not be held responsible if the BUSA legal adviser had not reported back to the organisation.

Ms Line pointed out that the disagreement on the issues had not been between the legal advisers of BUSA, the DOL and the Committee.  The Committee could only advise BUSA that the legal adviser of the DOL was present.

Mr F Maserumule (ANC) was not satisfied by the reasons provided by the DOL for the presence of the legal advisers.

Mr Nyekemba suggested that the Parliamentary Legal Adviser assisted the Committee with formulating the response to the letter from BUSA.

The Chairperson advised that the request from BUSA would not be granted by the Committee.  BUSA was welcome to send a representative to attend the meetings of the Committee.

Deliberations on the Basic Conditions of Employment Amendment Bill
Advocate Gordon referred Members to the working document dated 7 November 2012.  Clauses 1 to 7 were dealt with during the previous meeting of the Committee.  The working document summarised the issues that had arisen during previous discussions on the Bill.  The issues were not legal issues but the Committee needed to decide on what approach would be followed.

Clause 8
The clause amended section 55 of the Basic Conditions of Employment Act (the principal Act).  The first contentious issue was whether the minimum wage applicable to a sectoral determination would be increased by a rate or by a percentage.  The second issue concerned sub-contracting.

The Chairperson noted that the clause dealt with sectoral determinations by the Minister of Labour.  The current process was cumbersome.

Mr Mkalipi said that sectoral determinations currently only increased the applicable minimum wage.  Where an employee earned more than the minimum wage, it was technically possible not to increase the wage.  The proposed amendment allowed the Minister to either increase the minimum wage or to impose a percentage increase to wages.

The Chairperson noted that there had not been objections to the adjustment of wages for a sector per se.  The Committee did not disagree with the provisions in clause 8.

Clauses 9 to 17
There were no legal or contentious issues requiring further discussion.  The Committee accepted clauses 9 to 17.

Clause 18
Advocate Gordon explained that the proposed amendment to the short title of the Bill clarified when the Bill would come into effect.

The Committee accepted the amendment to clause 18.

The Chairperson asked the State Law Adviser to take the Committee through the amendments to the clauses.

Advocate Gordon referred Members to the working document dated 19 November 2012, which would become the “A list” and which would be voted on in conjunction with the “B” version of the Bill.

Ms Zuraya Williams, State Law Adviser took the Committee through the proposed amendments to clauses 2, 3 and 18.  The Committee agreed to the proposed amendments.

Advocate Gordon advised that concurrent changes to the Memorandum on the Objects of the Bill would be made without further recourse to the Committee.  The “A-list” would be included in the new version of the Bill to be printed by Creda Communications.

Deliberations on the Labour Relations Amendment Bill
Advocate Gordon advised that the two remaining issues concerned the inclusion of provisions related to the Labour Court that should be dealt with in the Superior Courts Bill and the provisions concerning highly-paid employees.  She informed the Committee that the Portfolio Committee on Justice and Constitutional Development had submitted the report on the Superior Courts Bill to Parliament on 19 November 2012.  It was necessary for the Committee to reject the clauses in the Bill that duplicated the provisions in the Superior Courts Bill.

Ms Williams confirmed that only the clauses that duplicated the provisions in the Superior Courts Bill were rejected.

Mr S Motau (DA) understood that the Committee was only dealing with ‘cleaning up’ the proposed legislation at this stage.  The Committee had not yet agreed each clause.in the Bill.

The Chairperson confirmed that the Committee had not yet voted on the clauses but it was necessary to agree on the changes that had been made to the provisions.

Mr Nyekemba noted that Creda Communications would print a new version of the Bill, which would incorporate the changes (“A-list”) and which would be referred back to the Committee to finalise the process.

Other Committee Matters
The Chairperson advised that the Committee had recently visited farms in the Western Cape in accordance with its oversight responsibilities.  The Committee needed to meet with the Portfolio Committee on Agriculture, Forestry and Fisheries and deal with matters related to the Compensation Fund.  The Committee’s report to the Minister had not been submitted.  Farm workers had subsequently gone on strike to protest against the low wages paid in the agricultural sector.  He asked Mr Mkalipi to brief the Committee on the labour unrest in the Western Cape.

Mr Van der Westhuizen asked that the Committee Secretary provided Members with the Committee’s programme.  The Members from the Democratic Alliance had arranged with the DOL to visit the offices and meet officials of the Commission for Compensation, Mediation and Arbitration (CCMA), the Unemployment Insurance Fund (UIF) and the Compensation Fund on 30 November 2012 at their own cost.  Other Members of the Committee were welcome to attend.

The Chairperson said that a progress report on the situation on the farms would assist the Committee in deciding whether a follow-up visit was necessary.  The Committee had visited fishing communities two years earlier and required an update on the progress that had been made in this sector as well.  The Committee would be meeting during the first week in December 2012 to finalise outstanding matters.

Mr Mkalipi advised that the DOL had issued two notices on Friday, 16 November 2012.  On the same day, a meeting was held with representatives from the Congress of South African Trade Unions (COSATU) to discuss what progress had been made.  The Department had also met with AgriSA to explain the processes that needed to be followed.  It would not be difficult to address the issues concerning the sectoral determination for the agricultural sector if there was agreement between the parties.  AgriSA had stated that it did not have a mandate from its members to deal with the matter.  Farm workers had also returned to work.  The Department had pointed out to AgriSA that the organisation had an opportunity to participate in the process of addressing the concerns of the workers.  All the parties had accepted the process that needed to be followed.  A meeting had been arranged for eight representatives of the farm owners and eight representatives of the farm workers to meet on Thursday, 22 November 2012.  A public meeting for farm workers would be held in Worcester on Thursday evening, 22 November 2012.  A meeting with farm owners was arranged for Friday, 23 November 2012.  Public meetings in KwaZulu Natal had been scheduled for Saturday, 24 November 2012.  The times and venues of the meetings would be confirmed.  The Department would be able to provide a report on the current situation, what the issues were and what matters required further attention during the following week.  The objective was to reach agreement with all the parties involved.  The Department had requested the CCMA to facilitate the meetings with farm owners and farm workers.

Mr Motau was informed that the Minister of Labour would return from her overseas visit on Wednesday.

Mr Van der Westhuizen asked if anyone could attend the public meetings.  He asked for details of the notices issued by the DOL.

Mr Mkalipi replied that the purpose of the public meetings was to hear input from the farm workers but other interested parties were welcome to attend.  AgriSA had undertaken to invite farm owners to the meeting arranged for Friday, 23 November 2012 and to arrange the venue.  The notices issued by the Department were the notice of intent by the Minister to review the sectoral determination and the notice of intent by the Minister to review the wages of farm labour.  The notices invited comment from interested parties.  Currently, sectoral determinations were applicable to all provinces.

The Chairperson advised that the next meeting of the Committee would be on 28 November 2012.

The meeting was adjourned.