The Select Committee met for a briefing on the National Minimum Wage Bill by Parliament’s Constitutional and Legal Services Office (CLSO). It is a one-clause Committee Bill purely to amend a technical error. It is a section 75 Bill and so voting mandates will not be required from the provinces.
The Select Committee had arranged a briefing on the revival of the National Minimum Wage Bill with the approval of the Programme Committee of the National Council of Provinces. The Committee had since been informed by the CLSO to await further clarity on the revival of the Bill as the matter was to be addressed jointly by the Secretaries for the National Assembly and the NCOP. The briefing was held but no further decisions on the process were taken.
The National Minimum Wage Act 2018 had been signed by the President on 7 December 2018 and proclaimed into law. That Act had been introduced into Parliament in 2017 as the National Minimum Wage Bill. At the time section 17(4) had correctly referred to section 4(6), which stated that an employer could not unilaterally change working conditions in connection with the Minimum Wage Act. Section 17(4) provided the date from which section 4(6) would become effective.
In the drafting process, section 4 had been amended by the insertion of two further sub-sections so that the original section 4(6) became section 4(8). However, the required consequential amendment to Section 17(4) was not effected. Soon after the Act came into operation, the error was brought to the attention of the Portfolio Committee on Labour.
In February 2019, the Portfolio Committee on Labour was given permission to introduce the National Minimum Wage Amendment Bill, as a Committee Bill, to correct the error. The Amendment Bill was processed by the Portfolio Committee and introduced and approved by the National Assembly on 19 March 2019. The Bill was sent to the National Council of Provinces for concurrence but had not been considered before the Fifth Parliament rose in March 2019. The Bill was being revived in the Sixth Parliament by this Committee.
Members asked only technical questions as there were no substantive changes to the Act. Why had the previous Committee been briefed on the previous Bill by the then Department of Labour but the current briefing was by a parliamentary Legal Advisor? When the Committee advertised the Bill, would submissions be limited to the correction of the error? How would the Committee deal with other issues that might be raised in the public submissions?
The Chairperson welcomed the Deputy Minister of Employment and Labour, Boitumelo Moloi, the Director-General, Mr Thobile Lamati, and officials from the Department of Employment and Labour.
The Chairperson informed the Members that he would follow the same process as in the earlier meeting in which the Committee had been briefed on the National Gambling Amendment Bill, that is, he was holding a briefing on the National Minimum Wage Amendment Bill as approved by the NCOP Programme Committee. However, no further decisions on the process would be taken as the Legal Services of Parliament had asked the Committee to await further clarity on the revival of the Bill.
The Chairperson stated that he would ask the Legal Advisor to begin immediately with a briefing on the National Minimum Wage Amendment Bill, Members would be given an opportunity to ask questions, the Legal Advisor would respond and then, as discussed in the previous meeting, the Committee would await clarification from the Secretary of the NCOP, Adv Modibedi Phindela, before moving forward.
National Minimum Wage Amendment Bill [B9-2019]: briefing
Mr Michael Prince, Legal Advisor in the Constitutional and Legal Services Office in Parliament, explained that the National Minimum Wage Act 2018 had been signed by the President on 7 December 2018 and proclaimed into law.
When that Act had been introduced into Parliament in 2017 as an Executive Bill, the National Minimum Wage Bill [B31-2017], Section 17(4) had correctly referred to section 4(6). The Portfolio Committee on Labour, however, amended section 4 by inserting two further sub-sections so that the original section 4(6) became section 4(8). However, the required consequential amendment to Section 17(4) was not effected. Soon after the Act had come into operation, it was brought to the attention of the Portfolio Committee on Labour that section 17(4) of the Act contained an error. The Act was found to contain a technical error because a consequential amendment had not been effected.
On 19 February 2019, the National Assembly approved the request by the Portfolio Committee on Labour for permission in terms of National Assembly Rule 273(1) to introduce a National Minimum Wage Amendment Bill, in other words, a Committee Bill. The Amendment Bill was duly processed by the Portfolio Committee and introduced to the National Assembly on 19 March 2019.
The Bill was then transmitted to the National Council of Provinces for concurrence and referred by Council to the Select Committee for consideration. It was a Section 75 Bill. It was a one-clause Bill purely to amend a technical error.
Mr E Landsman (ANC, North West) asked the Chairperson about the difference between this Amendment Bill and the National Minimum Wage Bill. The Committee had received a briefing from the Department of Labour on the first Bill but with the current Bill, the Committee received a briefing from the Parliamentary Legal Advisor.
The Chairperson suggested that Mr Prince had clarified the matter. The original Executive Bill on the National Minimum Wage had gone through the bills process in line with section 75 of the Constitution. After the Bill was passed by the National Assembly, it was sent to the NCOP and the Select Committee on Economic and Business Development had received a briefing from the Department of Labour because it was an Executive Bill. However, the Amendment Bill was a Committee Bill and so the briefing was by Parliament’s Legal Services, instead of the Department.
He explained that the National Minimum Wage Bill had been passed by the NCOP in August 2018 and then afterwards the error had been discovered. The Portfolio Committee had requested the National Assembly to allow it to draft a Committee Bill to correct the mistake. The Committee was given permission and the Committee had gone through the process of advertising for public comment but there were no public submissions. The Committee deliberated and sent it to the National Assembly for adoption. It was adopted by the National Assembly towards the end of the Fifth Term but it could not be dealt with by the NCOP at that time and so it had been sent to the current Committee.
The Chairperson added that some technicalities had been raised about the revival of the lapsed Amendment Bill at the start of the Sixth Parliament and so the Committee cannot take the process forward. The technicalities have to be addressed and once addressed, the next process would be to advertise for public submissions and the Committee would have to see if there were any submissions. The Committee would then take the process forward.
The Chairperson requested Mr Prince to add to his comments.
Mr Prince stated that the Chairperson had presented the situation most competently. An Executive Bill is introduced by the Department and that was why the briefing was by the Department. A Committee Bill is introduced by Parliament through the Portfolio Committee. Ordinarily, the Chairperson for the Portfolio Committee on Employment and Labour would do the briefing for the Select Committee but the current Portfolio Committee on Employment and Labour was completely different from that of the Fifth Parliament. Mr Prince had been asked to make the presentation as he had drafted the Bill for the Committee in the Fifth Parliament.
The Chairperson asked Mr Prince to clarify one matter. When the Committee did advertise, would submissions be limited to the error? How would the Committee deal with other issues that might be raised in the submissions?
Mr Prince pointed out that the Portfolio Committee on Labour had received submissions but they were broader than the error. The Portfolio Committee had made it clear in the advertisement that it was seeking submissions on that particular clause because that was the permission that the Committee had sought from the National Assembly, and that was the resolution that had been passed: that the Portfolio Committee on Labour could draft a Committee Bill on the following scope: to correct the technical error.
He added that obviously nothing precluded the public from submitting comments on other areas and if the Select Committee decided that it wished to entertain those additional comments, his view would be that Rule 169(1) applied:
Rule 169(1): The select committee or other Council committee to which the bill is referred - (b) if it is a bill amending provisions of an Act, may seek the permission of the Council to enquire into amending other provisions of that Act.
Mr Prince explained that if the submissions contained other proposals which the Committee sought to entertain, the Committee would have to seek the permission of the NCOP to do so.
The Chairperson noted the Committee was talking about the National Minimum Wage Amendment Bill but the secretariat had not provided Members with copies of the original National Minimum Wage Act. Members would receive copies of the original Act from the secretariat immediately after the meeting so that they had both the Act and the Bill before them.
Deputy Minister Boitumelo Moloi offered her copy of the National Minimum Wage Act to the Members.
The Chairperson thanked her but noted that each Member would need a copy and if there were no hard copies available, the secretariat could download a copy from the website.
Mr M Mmoeimang (ANC, Northern Cape) asked for confirmation that the intention of the Amendment Bill was to change section 7(4) so that it referred to the effective date of implementation of section 4(8), which was 1 May 2017.
This was confirmed.
The Chairperson thanked the Deputy Minister and the Department for their attendance at the meeting.
Minutes of the 9 and 10 July 2019 meetings were adopted.
The Chairperson informed Members that the budget debate on Small Business Development would take place on 24 July 2019 at 14:00. No date had yet been set for the budget debate on Economic Development.
He thanked Members for their participation in the meeting.
Meeting was adjourned