Basic Conditions of Employment Amendment Bill; Labour Relations Amendment Bill: adoption

NCOP Public Enterprises and Communication

23 October 2013
Chairperson: Ms M Themba (ANC)
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Meeting Summary

The Committee met with representatives from the Department of Labour to review clause by clause the Basic Conditions of Employment Amendment Bill and the Labour Relations Amendment Bill. Concern was raised about the submissions of Business Unity South Africa (BUSA) and Transnet which had yet to be addressed. The Department of Labour stated that the submissions in question had been reiterations of previous submissions that had been addressed. The bodies in question were not happy with the changes to the Labour Relations Amendment Bill which sought to achieve more employee equality by addressing issues pertaining to those working on fixed term contracts and on a temporary basis. The Department wanted to ensure the rights of the employee and to not allow employers to use the flexibility enabled by fixed term and temporary contracts as an excuse for poor treatment.

The meeting moved onto the Select Committee proposed amendments for the Labour Relations Amendment Bill. These changes were mostly grammatical or insertions of words to provide clarity.  Members agreed to the changes. However, some Members raised concern that the Bill now stated that only union members could picket and no longer non-union supporters in the community. This was because unions would be held accountable for any unlawful actions, such as damaging property, by any of those people picketing. Members felt as though communities should be able to support unions as the members of the unions were also members of the community. They motivated to omit clause 9(a), (c) and (d) which prevented supporters from joining union members on the picket line.

Many Members felt might clause 9(a), (c) and (d) affected the employee’s constitutional right to strike. Clause 9 amended section 69 which addressed situations in which employers went to the courts to seek interim relief for certain situations when unions were picketing. The Department explained that the sub-sections in question were put in place to ensure that there was a proper counterbalance between the rights of employees and employers. Despite this assurance Members were still sceptical. The Committee proposed omitting clause 9(a), (c) and (d) from the Bill and this was approved.

The Committee approved the Labour Relations Amendment Bill with amendments.

The Committee noted that it proposed no amendments to the Basic Conditions of Employment Amendment Bill and approved it as is.

Meeting report

The Chairperson stated that it was the final day in which they would be deliberating on these two bills, they would go over the Bills clause by clause and the Department of Labour was present for clarification.

Mr Grant Wilkinson, Business Unity South Africa (BUSA) representative and a Global Business Solutions executive, stated that BUSA and Transnet had yet to receive a response to their submission.

Mr Thembinkosi Mkalipi, Chief Director: Labour Relations, Department of Labour, explained the Department's response to the two submissions in question. He stated that the BUSA submission that had been handed in after the deadline was just a repackaging of their previous concerns; therefore they did not prepare a response to it. However they had prepared a response to Transnet’s submission. He said that Transnet supported the Bill on many issues but was raising some concerns about regulatory assessments and equal treatment. They were not happy that the Labour Relations Amendment Bill was raising the issue of equal treatment for people who were working on fixed terms contracts and those employed on a temporary basis. They believed that equal treatment and pay for those people would increase their costs and stifle job creation.

Mr Mkalipi stated that equal treatment was embedded in the Constitution and fixed term contracts were not about reducing the wages of workers, rather it was about flexibility. Fixed term contracts were vital to employers who need to increase output over a short period of time and need the resources to do so quickly and temporarily. The changes to the Labour Relations Act (LRA) were not intended to take away that flexibility. Rather they were put in to ensure that those working on fixed term contracts for more than three months "would be treated equally". The Department did not accept the notion that for companies to use fixed term contracts effectively employees must be paid less. The argument that it would become more costly to companies with these changes to the LRA were not based upon flexibility, but based on exploiting workers. There needed to be balance between employees and employers and these changes helped in this regard.

Mr Wilkinson stated that the submission from BUSA was not a reiteration of previous submissions and new issues had been raised.

Mr Z Mlenzana (COPE, Eastern Cape) moved that the Committee accept the explanation provided by the Department.

Ms L Mabija (ANC, Limpopo) seconded the move.

The Chairperson suggested that the Department commence with the breakdown of the proposed technical amendments, starting with the LRA.

Clause by clause consideration: Labour Relations Amendment Bill and proposed amendments
Mr Mkalipi agreed and began noting the clause by clause changes made. No changes had been made to the Long Title or the definitions in clause 1. Members were in agreement.

Clause 2
Mr Mkalipi said the new proposed technical amendment here was that section 22(4) be changed to section 22(7). On page 3 line 42 the words “of a client” were inserted after the word “workplace” to make the sentence “workplace of a client”.

Mr M Jacobs (ANC, Free State) asked whether these were new amendments.

Mr Mkalipi noted that these were new proposed technical amendments.

Ms Suraya Williams, Principal State Law Advisor, Department of Justice reminded the Committee that the Bill before them was a section 75 bill and as the NCOP they did not have the power to amend…

Before she could finish, the Chairperson interjected and told Ms Williams that she was making a big mistake in saying that.

Mr Mlenzana stated that this was an issue of semantics and when talking about the powers of the National Assembly versus the NCOP it was clear in section 75 that the NA went to NCOP for concurrence despite it not showing this in the Constitution. He made it clear that the NCOP participated in ensuring the Bill was sound and the NA wanted to ensure concurrence.

The Chairperson continued and stated that it was wrong of Ms Williams to say that the NCOP had no power as many Bills had gone through the House that were amended by the NCOP.

Ms Williams stated that she agreed with everything said by the Members and there was a misunderstanding as she was not given the chance to finish her sentence.

The Chairperson stated that the use of the word' power' is what upset them and suggested that Ms Williams withdraw the word 'power'.

Ms Williams obliged so that the presentation could continue.

Mr Mkalipi went through Clauses 3 to 8 which had no changes and the Members were in agreement.

Clause 9
The Chairperson referenced Clause 9 and asked for clarification.

Mr Mkalipi noted that the Act stated that trade unions could organise pickets by supporters and union members, but the Amendment Bill would remove "supporters" so that only union members could picket.

Mr Jacobs as why the community surrounding the unions could not support those on strike?

Mr Mkalipi agreed with his assessment and believed that workers were part of the community. He stated that the intention was to limit any activities of intimidation by companies who could use the support of the community and the actions taken by non-union members as leverage against the unions.

The Chairperson asked why there were brackets around the words “[and supporters]”, the Committee would not pass a bill with brackets in it.

Mr Mkalipi stated that the brackets were there to show that “and supporters” would be removed from the Bill.

Mr Mlenzana stated that they were now into the true technicalities of the Bill. He wondered if the removal of “and supporters” ensured that the they could not be held accountable for anything that went wrong.

Ms Mabija believed that even supporters should be able to support the workers, she thought “and supporters” should remain in the LRA.

Mr Mkalipi stated that in a recent case, strikers were walking through a town and shops were looted. Shop owners wanted accountability and brought the unions to court and the unions were subsequently found liable. The changes would help in cases like this by having a registry of members. He stated that this was a matter of accountability and unions were responsible for their members.

Mr Jacobs agreed with this explanation.

The Chairperson agreed that these changes were correct.

Ms Mabija referred to clause 9 amending Section 69(12)(c) and whether the changes being proposed would affect an employee’s constitutional right to strike:
"the Labour Court may grant relief, including urgent interim relief, which is just and equitable and which may include (c) in the case of a trade union, suspending the picket or strike"

Mr Mkalipi stated that it did not. It only gave the courts a right to intervene if they determined that the picketing rules had been broken. Section 69(12)(d) provided a counterbalance which put limits on the employer. The counterbalance ensured that both the rights of employees and employers were fair.

Mr Jacobs stated that Section 69(12)(c) and (d) were confusing to him and based on the explanation of the Department, he suggested taking them out of the LRA.

Ms Mabija agreed with Mr Jacobs as she felt Section 69(12)(c) and (d) caused problems.

Mr Mkalipi explained that these sub-sections spoke to situations when a business seeks interim relief and uses the courts to make employees go back to work out of necessity, in some cases employers wait until the last moment to apply for interim relief and this allows them to apply without the employees having time to rebut their application. But the court uses its discretion in making these decisions and there were laws and guidelines to follow.

Mr Jacobs still felt confused by this and believed that the court needed to make their own decisions without these guidelines.

Ms Mabija believed that the discussion was wasting time and urged the Committee to remove sub-sections (c) and (d).

Mr Mlenzana stated that based on the explanation of Mr Mkalipi, these subsections thrust the government into areas that should be handled by the courts.

Mr Mkalipi stated that getting agreement from the side of business was difficult and that is why the Department chose to add these sub-sections.

The Chairperson agreed with the Members that sub-sections (c) and (d) should be taken out.

Mr Mkalipi continued explaining clause 9, specifically Section 69(14)(c) where the words “48 hours” would be omitted and substituted with “that contemplated by subsection (13)”. This allowed people to skip the 48 hour period required before they could take a claim to court if they had reasonable cause to do so.

Members were in agreement with this.

Clauses 10-36 had no changes. Clause 37 had a small technical amendment.

Clause 38
Mr Mkalipi referred to page 21, line 27 which was the insertion of a paragraph in sub-section 3 which explained that the changes in the laws began three months after it was passed in order to avoid confusion in the labour market. This meant that the rest of the section would have to be renumbered.

The Committee agreed with the changes.

Mr Mkalipi continued and noted that the insertion made on page 21, line 52 provided employees the right in cases of dismissal due to misconduct to go to the Commission for Conciliation, Mediation and Arbitration in a timeframe of six months rather than the previous amount which was thirty days.

Members were in agreement with these changes.

Mr Mkalipi read through the rest of the Amendment Bill and no further changes were noted.

Voting on Labour Relations Amendment Bill
The Chairperson stated that the Select Committee had agreed to the amendments proposed and asked for it to be moved. Mr Jacobs moved and Mr Mlenzana seconded.

Basic Conditions of Employment Amendment Bill
Mr Mkalipi went through the Bill and noted that no changes had been made since the previous session.

Members were in agreement.

Voting on Basic Conditions of Employment Amendment Bill
The Chairperson stated that the Select Committee had considered the Bill and agreed to the Bill without amendments. Mr Groenewald moved to adopt and Mr Jacobs seconded.

The Chairperson thanked all parties for their input as the changes to the Bill had been a difficult process. She finished by stating that without unity the government could not take South Africa forward.

Meeting adjourned.


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