Basic Conditions of Employment Bill [b98-97]: discussion

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Employment and Labour

30 October 1997
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PORTFOLIO COMMITTEE ON LABOUR
31 OCTOBER 1997
BASIC CONDITIONS OF EMPLOYMENT BILL


MINUTES
Mr Kettledas, representing the Department of Labour, gave an overview of the various submissions that were heard in that week. He said that the focus of the submission of Business South Africa (BSA) had been that the effect of the Bill would be to destroy jobs and increase labour costs; that basic conditions were confused with those that should be negotiated. Mr Kettledas said that the response of the Department concerning labour costs was that:
the likelihood of accidents would be reduced,
there would be an increase in productivity, and
the increase in costs would be a once off expense.

The Department of Labour had 2 proposals to make regarding small businesses: -
There should be an investigation on the Bill’s impact before the Bill was promulgated, and
There should be an education and information campaign directed to the small businesses.

Mr Kettledas said that an Inspectorate from 175 Labour centres around the country would implement penalties for infringements. He said that he believed the Department’s amendments reflected the concerns raised in submissions and hoped they would be accepted so that the Bill could be tabled by 05/11/97 with the aim of bringing the provisions into operation as well as improve the workers’ conditions as soon as possible.

Mr Arendse (ANC) said that the Bill still allowed for variation downwards.

Mr Tony Leon (DP) said that Mr Kettledas had made it clear that it was difficult to find enough time to smooth implementation of the Bill and that they were proceeding through points which were still contested. Hence promulgation should be delayed while investigating the effects on small businesses. He said that they should check the concerns about small business and the Bill’s probable effects first, then pass the Bill.

He also said that the Department’s response to the Homes of the Aged is inappropriate. There should be a specific response to how homes would cope with their increase in costs when their subsidies have been cut.

About the powers of the Minister, Mr Leon said that safeguards existing in the Bill were inadequate. The Legislative must write in exactly what the powers of the executive are. Three of the appointees of the Employment Conditions Commission (ECC) were appointed by the Minister, who also determines their salary. The Commission is therefore the handmaiden of the Minister of Labour and it is an illusion that the Commission provides checks and balances to the Minister’s power. NEDLAC was to be consulted by Minister in appointment of 3 members of ECC. However the Minister could ignore NEDLAC’s recommendation. Leon felt that the Bill should provide a degree of parliamentary oversight and that the Minister must submit his regulations for checking. He felt good law-making required oversight of regulations.

Mr Leon raised concerns about the Minster having power to determine payment for Maternity Leave. He wanted to know whether this was also subject to checks and balances and there was evidence that there was massive fraud in U. I.F.

Mr Leon asked why the definition of small businesses in the Small Business Act was not being accepted and that the small business sector wanted exemption; total or for a while.

Mr Leon said that there has been an expansion on the floor of core rights. According to the provisions the Minister may not give an exemption above the 45-hour week. Mr Leon said that the employee should be able to waive rights.

Mr Kettledas responded to the various comments and questions as follows: He started off by saying that the purpose of the Bill was to advance economic development and social justice. Long working hours were a threat to safety and the Department was clearly in favour of the goal of a 40-hour week.

He also responded to Mr Bohling's submission about the exclusion of Defence from the Bill by saying that this was a major policy decision.

About Homes for the Aged; sectoral investigation must determine particular conditions and restraints on what’s happening. If special exemption was required it had to be as a result of sectoral investigation.

Concerning the Minister’s appointing 3 of the Employment Conditions Commission (ECC), the Bill provides that he must appoint after consultation with NEDLAC. He said that ministers often have the power to appoint members of statutory bodies and that doesn’t mean the appointee is a "dummy". The Director-General believed that if any appointee performed in a way that was not in the spirit of the Act then there would be an outcry. Mr Kettledas believed that the ECC would have integrity and carry out the work in a spirit of social partnership.

Mr Kettledas stated that the accepted mechanism for payments of Maternity Leave was the U. I.F.
He also stated that the 45-hour working week was a core right. The notice period, however was not a core right.

Also, regarding Public Service, law should apply to public and private sectors. However with public service a transitional period needs to be provided.

Mr Blaas (NP) said that the National Party queried the effectiveness of the checks and balances of the Minister’s powers. He said that the issue of the 40-hour working week should be an ongoing investigation and there should be a comparison with other countries. Mr Oliphant, the chairperson, said that the Bill provided for investigation in all sectors regarding the 40-hour week. Mr Dexter asked Mr Blaas what the National Party suggested and he replied that the party wanted a 45-hour working week.

The Chairperson, Mr Oliphant (ANC), raised concerns about the issue of the powers of the Minister. He felt that there must be a balance between the abuse of power and necessary effective power. The question should be examined in a creative way for he felt the Minister should not be stripped of his power. Mr Bunting (ANC) felt that there was a danger that the amendments would turn the Minister into an advisory with no amendments. He also felt that Mr Leon’s suggestion of the employee’s right to waive was very cumbersome.

Mr Dexter, in response to Mr Blaas, asked whether age should be laid down from which children should be allowed to work. Mr Blaas responded that it was a complex matter. The Chairperson asked that the Director-General build up that provision.

Mr Leon and Mr Bunting continued to discuss the question of "waiving rights". Mr Leon asserted that an individual had the right to make his/her own decision about his/her future. Mr Leon strongly proposed that there should be a Regular Review Committee: that the Minister has very major powers in respect to sectoral regulations. He said that Parliament shouldn’t surrender itself and should know what the Minister is doing.

Mr Oliphant, the chairperson, asked the legal advisors to try to accommodate all parties on Monday, the 3rd , to ensure that the Bill may be passed.

DECISIONS TO BE TAKEN ON MONDAY, 3RD NOVEMBER.

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