Deliberations on the Labour Relations Amendment Bill [B16-2012] were centred on the fact that the Department of Labour (DoL) and the Department of Justice and Constitutional Development (DoJ&CD) had overlapping interests in the Bill. Both Departments had to decide on a route that would be acceptable to both of them.
A Parliamentary Legal Adviser noted that there had been communication with the Justice Portfolio Committee (PC). Areas of concern to the Justice PC were Clauses pertaining to labour court judges and the labour court. The Justice PC Chairperson had advised that the Labour and Justice Portfolio Committees meet. There had to be an additional process. The Bill could not be split to be considered separately by Justice and Labour, as there were Clauses that were related to the competence of Justice.
The DoL explained that amendments were needed to make it possible to appoint also judges from the Labour Court, not only from the pool of the High Court as the current Act prescribed. Labour Court judges had to be able to hear appeals. The Superior Courts Bill granted the same status to Labour Courts as to Superior Courts.
A Portfolio Committee Member suggested that Legal Advisers study issues on which consensus were needed, and that the two Departments make presentations at a joint meeting of the Labour and Justice Portfolio Committees. A Legal Adviser agreed that there had been communication, but that correspondence could only become alive in a joint Portfolio Committee meeting.
The DoL introduced further amendments on transitional arrangements to spell out what would happen to existing arrangements when the Bill became law. Of particular concern would be disputes that began before the Act was signed, and arbitration awards. The Chairperson told the DoL that the suggested transitional arrangements had not been through the National Economic Development and Labour Council (NEDLAC) process, and could not be entertained. The DoL could not keep on adding issues. The transitional arrangements would bring problems. A Legal Adviser noted that substantive issues would have to be analysed. Many people were affected. A PC Member commented that the DoL was becoming aware of things not noticed during the process. Unnecessary division when the Bill became law had to be avoided. He recommended that Legal Advisers go through the Bill and also advise on the process to be followed. He asked that they present their findings in writing to the Labour P
The Chairperson concluded that there would have to be further presentations by the Departments of Labour and Justice & Constitutional Development at a joint meeting of the two Portfolio Committees in April.
The Committee and the DoL discussed recommendations in the Committee’s report on its oversight visit to KwaZulu-Natal (KZN) regarding the professionalisation of the Labour Inspectorate, subsidised cars for the Labour Inspectorate, and the marketing of products by the Sheltered Employment Factories (SEFs). The Chairperson noted that no marketing for such products was being done, and a Member suggested that there be a turnaround in marketing strategy. The Chairperson advised that the National Treasury be engaged to assist with the marketing of SEF products to government departments. The Committee adopted the report with changes.
Labour Relations Amendment Bill [B16-2012] deliberations
The Chairperson noted that the Department of Justice and Constitutional Development was part of the process of passing the Labour Relations Amendment Bill. A route had to be followed and had to be decided upon. He asked a legal adviser to comment.
A Parliamentary Legal Adviser said that the Bill had been to the Justice and Constitutional Development Portfolio Committee. The Clauses important to Justice and Constitutional Development were those that dealt with judges and the Labour Court. The Justice and Constitutional Development Portfolio Committee Chairperson had agreed with the amendments, and said that his Portfolio Committee had to meet with the Labour Portfolio Committee. He said that there had to be an additional process. The Bill could not be split. It was not possible for Clauses to be taken out to be considered by Justice and Constitutional Development or Labour each on their own.
Mr Thembinkosi Mkalipi, DoL Chief Director: Labour Relations, noted that a letter from the Justice PC Chairperson had been received by the Department. The Chairperson indicated the need for a meeting. Certain matters were raised. Section 33 of the current legislation stated that the President of the Labour Court could appoint judges from the pool of the High Court. The DoL wanted to have that amended to include the Labour Court as well. There were certain rules where the Department wanted to substitute Minister of Labour for Minister of Justice and Constitutional Development. The DoL had met with the Department of Justice and Constitutional Development about it. According to the Superior Courts Bill, a Labour Court had the same status as a Superior Court. Judges could be appointed from the Labour Court. That section had to be linked to the Superior Courts Bill.
Mr Mkalipi continued that the DoL wanted an amendment to remove the “Department of Justice” to appoint the Committee, and to put in “Minister of Labour”. The Department of Justice and Constitutional Development had no problem with the addition that the Judge President had to ensure that the Rules Board for Labour Courts meet at least every two years to review the rules of the Labour Court. The part that stated that the Minister of Justice and Constitutional Development had to appoint certain persons, acting on the advice of the National Economic Development and Labour Council (NEDLAC), would remain as it was. Other issues were covered by the Superior Courts Bill. It had to be inserted that judges of the Labour Court had to give judgement as soon as possible. The Chairperson of the Justice and Constitutional Development PC had advised that the Departments of Labour and Justice and Constitutional Development meet on the matters raised.
The Chairperson noted that there would be a meeting with the Department of Justice and Constitutional Development in April. The PC would want to meet with the DoL before that.
Mr E Nyekemba (ANC) commented that there were issues of non-consensus because of overlapping interests between the Departments of Justice and Constitutional Development and Labour. There was a parliamentary legal team, which worked with the Department of Justice and Constitutional Development. The two Departments could present to a joint meeting of the two portfolio committees.
A Parliamentary Legal Adviser commented that there had been communication via correspondence, but that correspondence could only become alive in a meeting. Things would have to be worked out in Committee meetings. Legal Advisers did not know what had happened in the Justice and Constitutional Development Portfolio Committee.
Mr Mkalipi said that he wanted to explain some other small amendments. It mostly concerned transitional arrangements. With reference to Section 34, the question was what was going to happen to current arrangements when organisational rights were changed. He submitted that disputes launched before the Act was signed be dealt with under the Old Act. With regard to changes related to arbitration awards, he proposed that what happened to awards before the Act would remain in force. With reference to employers applying for a review, he noted that it had to be clarified which review was referred to. The Bill did not explain when the six-month period would kick in. Fixed term contracts were not yet part of the Bill.
The Chairperson remarked that if transitional arrangements were not in the Bill, it meant that it had not been through NEDLAC. It could not be entertained.
A Parliamentary Legal Adviser commented that Legal Advisers would have to go through every Clause, when the public wanted to give inputs. Time was needed. Many people were affected. Technically the Bill could go through, but substantively it had to be analysed.
The Chairperson told the DoL that it could not keep adding issues. It would not do to hijack the situation. Further amendments could always be brought in after two months.
Mr Nyekemba said that the DoL approach was caused by its noticing things that it could not see during the process and at NEDLAC. Care had to be taken to avoid unnecessary division when the Bill became law. Parliamentary legal advisers had to analyse the Bill to avoid challenges when the Bill was passed. They had to be allowed to go through the Bill and advise on what process had to be followed. He asked what the consensus in NEDLAC was.
The Chairperson remarked that there was still some work to be done on the Bill.
Ms Suraya Williams, Principal State Law Adviser, said that at the last meeting the State Law Advisers had been told to look for an alternative toClause 38. That had been done, and a draft would be sent to the PC.
A Parliamentary Legal Adviser said that the Parliamentary Legal Advisers had also gone through Clause 38.
The Chairperson said that there had to be further presentations in April.
Mr Nyekemba asked that the Parliamentary Legal Advisers look at the current Labour Relations Act. When they had made up their minds, they could communicate in writing with the PC.
Committee report on oversight visit to KwaZulu-Natal (KZN)
The oversight report was considered for adoption.
Mr A Williams (ANC) said that recommendations 3, 4, and 11 had to be reconsidered, as they were vague. The recommendations were more like proposals.
Mr Nyekemba referred to the recommendation about professionalisation of labour inspection posts. He advised that the words be changed to labour inspection services, as the recommendation referred to the professionalisation of the labour inspectorate.
The Chairperson asked who qualified to be a labour inspector.
Mr Mkalipi responded that the project on professionalisation had to do with training and upgrading.
The Chairperson said that a date was needed for the professionalisation project.
Mr Nyekemba urged that it had to be less than three months.
Mr A van der Westhuizen (DA) referred to the bullet under recommendations about applications for subsidised cars. The terms of the scheme were problematic. The problems of the scheme had to be circumvented. Users of subsidised cars had to build up a certain amount of kilometres per year. That had led to the situation where people drove to other areas for work, just to stay in the scheme. The Minister had said that the scheme was better than owning a fleet. The cars did not belong to the DoL. It had to be inserted in the recommendation that the terms of the scheme be reconsidered.
Mr Mkalipi replied that the Department of Transport was responsible for the scheme, and that no single department could amend it. The Department had to answer government wide. There was the possibility of green cars for inspectors.
The Chairperson asked how many green cars there were. The mobility of inspectors was important.
Mr Mkalipi replied that there were plans for the distribution of green cars.
The Chairperson asked that the PC be provided with the plan.
The DoL noted that the plan was to place more green cars in areas where not much travelling was done.
The Chairperson remarked that there had to be a focus on the mobility of inspectors. There had to be a plan for accessing transport for labour inspectors. He again asked for a time frame.
Mr Williams suggested six weeks.
Mr Mkalipi referred to the first bullet under recommendations that dealt with targets for tools of trade that had to be set for labour inspectors. A car qualified as a tool of trade. The Department would report to the PC.
Mr Williams commented that it was not necessary to put time limits on every point of the recommendations. There could be a general two-month implementation period. The DoL could report on which recommendations were not its responsibility.
The Chairperson said that people were demanding services from labour inspectors. A general report had to be provided by 31 May.
Mr Nyekemba referred to the recommendation about government departments being encouraged to procure furniture from Sheltered Employment Factories (SEFs). He advised that “and other products” be inserted.
The Chairperson said that there had to be a strategy for marketing SEF products.
Mr Nyekemba added that there had to be a turnaround strategy for marketing towards self-sufficiency for the SEFs.
Mr Mkalipi responded that the procurement policy was open and competition was on the open market.
The Chairperson commented that products had to be marketed to government. He advised that the National Treasury be engaged.
Mr Mkalipi agreed with what Mr Nyekemba had said about a turnaround strategy. The Committee would be asked to pass legislation.
The Chairperson noted that it was clear from a visit to the factories that government was not buying SEF products, and that there was no marketing. It was a matter of government selling to government. There had to be a strategy. It could be done through procurement committees.
Mr Williams moved for the adoption of the report.
The report was adopted with changes.
Committee minutes adoption
The Committee adopted its minutes of 12 and 19 March.
The Chairperson adjourned the meeting.
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