Labour Relations Amendment Bill [B16 - 2012] & Employment Services Bill [B38 - 2012]: consideration of NCOP amendments

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Employment and Labour

11 February 2014
Chairperson: Mr E Nyekemba (ANC)
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Meeting Summary

The Department of Labour briefed the Committee on the NCOP proposed amendments to the Labour Relations Amendment Bill and Employment Services Bill.

With regards to the Labour Relations Amendment Bill, the NCOP had proposed amendments to clauses 2, 9, 37 and 38. These changes included but are not limited to the following:

Clause 2
Section 21 (Exercise of rights conferred by this Part), subsection 7 of  the Principal Act stated that if the dispute remains unresolved, either party to the dispute may request that the dispute be resolved through arbitration. The new section (8A) Line 3 directed the Commissioner as to how to deal with these disputes.

Clause 9
On page 6 line 2(c) gave the Court the right to suspend a strike or picket and this was regarded as interfering with the constitutional right of workers to strike and 2(d) was removed to counter balance the removal of 2(c) this removes the power of the Court to suspend the use of replacement labour by an employer.
 
Clause 38
 Page 21 line 43 this is a wrong reference 198A (5), 198b (8) and 198C (3) dealt with employment on a fixed term and part time basis where workers must be treated not less favorably than full time workers and the Law allowed different treatment only where there are justifiable reasons. Section 198D (2) dealt with what must be taken into consideration in deciding on the fairness of the reasons.

In respect of the Employment Services Bill, the NCOP suggested that section 35 subsection 9, of the bill be amended to read – If the Chief Executive Officer is for any reason unable to perform his or her functions, the Board may designate a person in the service of the Board to act as the Chief Executive officer until the Chief Executive Officer is able to resume office “or until the Board appoints a new Chief Executive Officer”. This insertion was meant to deal with an unfortunate situation where the Chief Executive Officer is permanently unable to resume office due to any reason. A further amendment was suggested for Section 45 subsection 3. This insertion was also meant to deal with an unfortunate situation where the Chief Executive Officer is permanently unable to resume office due to any reason.

A Member asked for clarification on clause 9, page 6, (c) and (d). He wanted to know whether the intervention by the court was termed “an interference.” Another Member was of the opinion that the National Council of Provinces (NCOP) should not have removed clauses 11C & D. He added that people had a right to embark on strike action, and it would be fundamentally wrong and unconstitutional for a clause to be included in the law that would take that right away.

A Member queried why the report of the Select Committee had been given to the Committee for deliberation, when the report that the Committee needed was the report from the NCOP on amendments made to Clauses 35 and 45. One of the Members expressed his contrary opinion on the issue of being limited to deliberate only on Clauses 35 and 45, and not to debate on the other amended proposals.
If it were only Clauses 35 and 45 that were up for scrutiny, and all other proposals should just be accepted without being debated, then why was the proposition presented by the Democratic Alliance opposed, since they were very reasonable on these issues.

The Acting Chairperson said that at the next meeting, these issues would be revisited and comprehensively discussed. The Committee Secretary should ensure that he gave feedback to the Chairperson on the issues raised at the meeting, and a date for the next meeting should be fixed to finalise the amendments made to Clauses 35 and 45 of the Employment Bill.     
 

Meeting report

Acting Chairperson and Apologies
The Committee Secretary apologised on behalf of the Chairperson for his absence from the Portfolio Committee meeting and suggested that Committee Members should nominate a member to act on his behalf. Mr E Nyekemba (ANC) was nominated as the Acting Chairperson for the day. Apologies were read out on behalf of Adv A Alberts (FF+), Mr M A Mncwango (IFP) and Ms H Line (ANC).

The Acting Chairperson commented that there was only one item of the agenda and that was the amendment to the Labour Relations and the Employment Services Bill. He suggested that the Department of Labour (DOL) present the outcome of the NCOP report to the Committee. Members could then ask questions pertaining to those issues that needed clarification. In addition, conclusions on the proposed amendments would be deferred until the Chairperson was present, since amendments were crucial issues and should be presided on by the Chairperson authenticated by the Parliament. The Committee Secretary should make sure that a detailed feedback is given to the Chairperson on the proceedings of the meeting.

Briefing on Amendments proposed by the Select Committee on Labour and Public Enterprises:
Labour Relations Amendment Bill [16B – 2012]   
Mr Thembinkosi Mkalipi, Chief Director: Labour Relations, DoL, gave the presentation. He said that the first proposal was from Clause 2 of the Labour Relations Amendment Bill [B16b – 2012].  Section 21, subsection 7 of the Principal Act states that if a dispute remains unresolved, either party to the dispute may request that the dispute be resolved through arbitration. The new section (8A) line 3 directs the Commissioner as to how to deal with these disputes.  Line 22 was wrongly referenced. This section directed a Commissioner on how to deal with disputes in terms of subsection 7.  The insertion in line 42 sought to clarify that if a trade union exercises rights in a workplace “of the client” of the Temporary Employment Service, then the rights are chapter III rights (organizational rights). The insertion was “in the place of the client”. This insertion was to remove any confusion as to the right of the worker and where the worker could exercise his constitutional right.

Secondly, on clause 9 in page 5 of the bill, the proposal made was that line 31 should not refer to paragraph (a), because there was no paragraph (a).   On page 6, line 2(c) gave the court the right to suspend a strike or picket, and this was regarded as interfering with the constitutional right of workers to strike, and 2(d) was removed to counter-balance the removal of 2(c), as this removed the power of the court to suspend the use of replacement labour by an Employer.  On page 6, in line 18, 48 hours was removed because the intention was to give the court the flexibility to reduce all the time periods that were indicated in subsection 13 -- not only 48 hours.

On Clause 37, page 18, line 27, a wrong reference of 4D was given. 4D deals with the scope of Bargaining Councils and Sectoral Determinations, while Section 4C deals with Employment Contracts.  4C should therefore be inserted. 

Additionally, proposals for Clause 38 were:
1. On page 21, subsection 3, with regard to the provision made on the part-time workers, an additional clause was introduced. This allowed the provision to be ineffective until three months after the Act comes into operation. This was just a transitional provision to avoid unnecessary disputes on the application of the section.
2. Page 21, line 27 and 30 needed to be renumbered. The numbering was disrupted as a result of the addition of subsection (4) after line 26.
3. Page 21, line 43 was also an issue of wrong referencing.  198A (5), 198B (8) and 198C (3) deals with employment on a fixed term and part-time basis, where workers must be treated not less favorably than full-time workers, and the law allowed different treatment only where there were justifiable reasons. Section 198D (2) dealt with what must be taken into consideration in deciding on the fairness of the reasons.
4. On page 21, line 52, an exception to the time frame was created. In line 52, the time frame had been increased to six months, instead of the 30 days that was termed normal with all disputes on dismissals.

Discussion
Mr D Kganare (COPE) wanted some clarification on clause 9, page 6, (c ) and (d). He wanted to know whether the intervention by the court was termed “an interference.”  With regard to page 21, line 54, what was the logic of the six months? Why not 10 months or three months?  He was of the opinion that an employee that had been unfairly dismissed should not have to wait for six months before tabling his case.     

Mr Mkalipi replied that the changes made by the Select Committee were not about six months or three months. He said that it was this Portfolio Committee that had decided on six months, and it was basically for the sake of uniformity, as it was in the Employment Equity Act. The Select Committee was just concerned that the same interventions were not given to all disputes. With regards to the court, any amendments or changes could be made to the law; however, they must be justifiable before the court.

Mr Kganare responded that it is the duty of the employer or the trade unions to convince the court. For example, the employer has the duty to convince the court that a strike action must be suspended and the trade union has to prove to the court that the employer has employed workers that were causing havoc.

Mr A Williams (ANC), said he did not know why the NCOP had removed clauses 11C & D. He added that despite the fact that it was not the desire of the Portfolio Committee to pre-empt any court actions in the future, it was important to note that people had a right to embark on strike action and it would be fundamentally wrong and unconstitutional for a clause to be included in the law that would take that right away.  At the next meeting, the issue should be carefully deliberated upon and the DOL must be ready to produce clarification regarding the removal of the two clauses.       

The Acting Chairperson replied that the issues concerning the changes submitted by the Select Committee should be fully digested by each Committee Member.   At the next meeting, these issues would be clarified and deliberated on.

Employment Services Bill [B38B – 2012]
Mr Mkalipi presented the proposed amendments to the bill. He said that on page 12, Section 35 subsection 9, the bill was amended to read – If the Chief Executive Officer is for any reason unable to perform his or her functions, the Board may designate a person in the service of the Board to act as the Chief Executive officer until the Chief Executive Officer is able to resume office “or until the Board appoints a new Chief Executive Officer”. This insertion was meant to deal with an unfortunate situation where the Chief Executive Officer is permanently unable to resume office due to any reason.

Section 45 subsection 3 was amended to read: If the Chief Executive Officer of Protected Employment Enterprises is for any reason unable to perform his or her functions, the Minister must, in writing, appoint another person as acting Chief Executive Officer until the Chief Executive Officer is able to resume those functions “or until the Minister appoints a new Chief Executive Officer”. This insertion was also meant to deal with an unfortunate situation where the Chief Executive Officer is permanently unable to resume office due to any reason. These two clauses were inserted to curb individuals who wanted to stay in official positions forever.

Discussion
Mr Kganare inquired why the report of the Select Committee on Labour and Public Enterprises on the Employment Services Bill [B 38B – 2012] had been given to the Committee.

Mr Williams replied that the report of the Select Committee contained the clauses recommended by the NCOP for the Portfolio Committee to scrutinise. However, the report that the Committee needed was the report from NCOP, and not the report of the Select Committee. This report must be at the next meeting to assist the Committee in making informed decisions.

Advocate Anthea Gordon, Parliamentary Legal Adviser, commented that the official document that should be before the Committee for consideration should be the official version of the report of 28 November, which contained the proposed amendments to Clauses 35 and 45.   
        

The Acting Chairperson replied that essentially this meant that the Portfolio Committee’s deliberations were confined to only Clauses 35 and 45. Every other clause was not to be tampered with by the Committee.  

Mr Mongameli Kweta, State Law Adviser agreed with the Chairperson. He added that the Committee was expected to engage on Clauses 35 and 45.   

Mr Kganare voiced a contrary opinion. He said that if it was only Clauses 35 and 45 that were up for scrutiny, and all other proposals should just be accepted without being debated on, then why was the proposition presented by the Democratic Alliance opposed, since they were very reasonable on these issues.

The Acting Chairperson reiterated that as much as he understood the standpoint of Mr Kganare on these issues, the Committee must adhere to the instructions given to it. At the next meeting, these issues would be revisited and comprehensively discussed. The Committee Secretary must ensure that he gave the feedback to the Chairperson on the issues raised at this meeting and a date for the next meeting be fixed to finalise the amendments made to Clause 35 and 45 of the Employment Bill.      

The Acting Chairperson thanked all in attendance.

The meeting was adjourned.
 

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