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LABOUR PORTFOLIO COMMITTEE
23 October 2001
UNEMPLOYMENT INSURANCE BILL: DELIBERATIONS
Chairperson: Mr. S. Manie
Amendments proposed to the Unemployment Insurance Bill - 24/10/01 (document awaited)
Department of Labour: Response to public hearings on amendments to the LRA and BCEA on 16 and 17 October 2001 (document awaited)
The impact which the Basic Conditions of Employment Amendment Bill and the Labour Relations Amendment Bill will have on volunteering in South Africa by Gian Parker
The UIF Commissioner, Mr. S. Mkhonto, outlined the proposed amendments to the Unemployment Insurance Bill taking into account the various comments and suggestions raised by Committee members on the 19 October 2001.
Commissioner S. Mkhonto briefed the Committee members on the redrafted clauses. He requested that Clause 3 of the Bill be dealt with at the end and that the Unemployment Insurance Bill be the main focus of consideration for the day's proceedings. The Commissioner commenced explanation of some 30 amendments made to the Bill as a result of concerns raised by Committee members at the last meeting.
The Commissioner said "child" was redefined to include "any person under the age of 25 who is a learner and who is wholly or mainly dependent on the deceased."
In answer to Mr Clellend asking how the age of 25 years was derived, the Commissioner said that the age of 25 years was based on suggestions raised by stakeholders. It was also observed that most people who undergo tertiary education were between 21 and 25 years of age.
Mr Clellend asked what the financial impact on the Fund would be if the period was extended from 21 years to 25 years. The Commissioner replied that the words "wholly or mainly dependent" covers the impact this would have on the Fund.
It was agreed by the Committee to pass this amendment.
The Commissioner advised that "employee means any person who works for another person and receives any remuneration or to whom any remuneration accrued but excluded an independent contractor."
Mr. Middleton (IFP) asked what was meant by an 'independent contractor' and Mr Clellend asked if there were any legal consequences in effecting such a change.
The Deputy Director General in answering these questions stated that the words "any person" in law is construed to mean a natural and juristic person. With regard to an "independent contractor", it implied or referred to such person being excluded from benefitting from labour legislation. This change sought to grant a rebuttable presumption where the burden of proof rested wholly on the employer.
Mr Clellend asked what the legal consequences were of changing "natural person" to "person". Adv Smuts, State Law Advisor, advised that the exclusion of the word "natural" could only be interpreted to mean a person. A company, he added, could not be an employer.
Mr. Sitole (ANC) stated that in terms of the Basic Conditions of Employment Act, the definition of employee made reference to a person who works for another person or the State. Should the State, therefore, not be included in this definition as well. The Deputy General stated that Clause 3 of the Bill adequately covers this aspect.
The Chair advised that if employee is defined in terms of this Bill, it should also make provision for State employers. He requested that this section be flagged for deliberation at a later stage.
The Chair stated that this definition was difficult to understand and not drafted in simple English. He asked the Commissioner how such a definition was derived. The Commissioner replied that the definition had been derived from the SARS Act and had been approved by the State Law Advisors.
The Commissioner advised that this would mean "any person who is employed by an employer for an aggregate period of at least 3 months over a 12 month period with the same employer and whose work is interrupted by reason of a seasonal variation in the availability of work."
No further grievances with this amendment were raised by members.
The Commissioner advised that the Chair's suggestion that (i) and (iv) be incorporated into a single clause had been accommodated and that the word "constructive dismissal" had been deleted.
The amendment entailed the removal of the word "good cause" and substituted with "just cause". All members agreed to this.
Subclauses 20(2)(c)(i) and 20(2)(c)(ii) had been amended to state the following:
"(c) for any period during which the contributor:
is entitled to unemployment benefits in terms of Part B of this Chapter or adoption benefits in terms of Part E of this Chapter; or
without just reason, refuses or fails to undergo medical treatment or to carry out the instructions of a medical practitioner, chiropractor or homeopath."
All parties agreed to this proposed amendment.
The Commissioner advised that concerns had been raised by Committee members as to the use of the word "confinement". It was proposed that it be omitted.
Ms Thabethe (ANC) asked how would the situation after pregnancy be covered. The Chair was unable to provide an answer. The Chair then suggested the usage of the words "for any period of pregnancy and the immediate period thereafter." All members concurred with this view.
Mr. Kettledas, recommended that the word "confinement" be substituted with the words "child birth" or "a period as a result of pregnancy". Advocate Smuts supported this suggestion.
Ms Thabethe argued that "delivery" referred to the time of a child's birth and that the time thereafter was in fact the maternity period.
Advocate Smuts advised that the use of the word "delivery" instead of "child birth" would have no legal implications.
The Chair then summarized by saying that the words "delivery" and "any period as a result of pregnancy or child birth" were to be incorporated into this provision.
The Commissioner advised that the words "once she had been confined" as contained in the definition was to be substituted with the words "after the third trimester".
Mr. Blaas (NNP) asked why this change was necessary and the Commissioner replied that the amendment was based on the views of the Committee members.
The Chair enquired whether the use of the words "the third trimester" would not limit or restrict a persons right to benefits. Advocate Smuts informed that after the third trimester referred to a period after 9 months in terms of the Basic Conditions of Employment Act.
The Chair asked if the term made provision for confinement as well. Advocate Smuts recommended that the wording be changed from "after the 3rd trimester" to "during the 3rd trimester".
Mr Clellend asked how this would impact on a situation where a pregnant woman of five months had miscarried. He advised that medico-legal assistance be sought on this issue before any hasty decisions were made.
The Chair stated that the clause as it stood was ambiguous. On the one hand it suggested that a woman could only access maternity benefits once the confinement stage had been reached; and on the other, it implied a woman would only be entitled to such benefits if she miscarried.
Ms Thabethe advised that before a decision was made, that medico-legal advice be as suggested by Mr Clellend.
The Deputy Director General was not in support of this suggestion and cautioned the Committee not to re-invent issues that already had been decided and discussed. Ms L. Seftel of the Department of Labour, advised that this issue had been discussed extensively during negotiation proceedings between NEDLAC and the Department of Health.
Ms Thabethe asked how one would link maternity benefits to UIF benefits, if at all possible. She asked that the Department of Labour review this issue and revert back to the Committee.
Mr. Kettledas explained that the provision allowed a woman who had miscarried during the 3rd trimester to access maternity benefits. However, a woman who miscarried in the 1st or 2nd trimester would be entitled to illness benefits if unable to work for 14 days or longer. Regarding the six week recovery period, as per Clause 24 (5) of the Bill, this was regarded as the average period required for a woman to recover.
Ms Thabethe enquired how this provision would impact on a woman who required 12 weeks to recover from a miscarriage. Mr. Kettledas replied by saying that such a woman would be entitled to access illness benefits provided sufficient benefits existed. The Chair agreed with this answer and added that Clause 20 adequately provided for such situations. The Deputy Director General commented that the aim of such a provision was to protect a certain category of persons against potential abuse.
This contained a consequential amendment. Mr Clellend asked what the legal consequence would be if the words "after a period of eight weeks" in Clause 25 was substituted with the words "before delivery or 8 weeks before confinement". Ms Seftel recommended that the words "date of birth" be used.
The Commissioner advised that this had been amended to include the following subparagraphs:
(iii) policies for minimising unemployment, and
(iv) the creation of schemes to alleviate the effects of unemployment.
All parties agreed to this proposed addition.
This contains the addition of the words "which must include an appeals committee". Previously the Bill proposed that all disputes relating to non-payment of benefits had to be tabled before the CCMA which members felt would jeopardize the beneficiaries right to claim. Mr. Clellend expresssd the opinion that the appeals procedure needed to be explained and outlined in detail to the person wishing to execute this procedure. Therefore, it should be incorporated into the provision. The Deputy Director General agreed with this opinion.
Clause 51 entailed a minor consequential change.
The Commissioner noted that the following subparagraphs would be included:
"(3)(a) In order to determine the payment of benefits in terms of this Act, the Commissioner may access any information on a database of the State that contains information regarding social security.
For purposes of paragraph (a) the Commissioner must co-operate with other State institutions to link their respective databases."
No concerns were raised regarding these additions.
This amendment would make provision for Section 69 and Section 52 which dealt with the persons regarded as contributors for the purposes of this Act.
Mr Clellend asked if all the Minister had to do was to consult with contributors on this issue.
Mr. Kettledas said that the focus of this clause was to allow the Minister, on receipt of an application, to give due consideration for investigating such person for the purposes of the Act.
In reply to Mr. Middleton asked for clarity on S68(3) and (4), Mr. Kettledas replied that where a Minister delegated his powers to the Deputy General, the Minister may at any time withdraw this delegation on just or good cause shown.
The Commissioner noted that Schedule 2 which had been previously rejected by members, had been redrafted in clear and concise English and dealt primarily with the mathematical calculations of the contributor's entitlement.
Mr. Middleton (IFP) asked if the submissions made by the Commission for Gender Equality had been taken into consideration when drafting the new Schedule 2. The Commissioner said that the new Schedule 2 was one which had been actuarially determined. Mr. Sitole (ANC) recommended that academics be present to assist and test the provisions contained in the new Schedule 2 so that members best understood its contents.
The Chair stated that the submission for Gender Equality expressly provided that women off work as a result of maternity were prejudiced because of their right to access only 60% of their benefits. This, he advised, was in respect of a legal opinion drafted and made available to him in the latter part of the morning. He foresaw potential constitutional and human rights violations on this aspect. The Chair advised that a copy of the draft opinion would be made available to all parties present in the course of proceedings.
When the Chair requested that Clause 3 be adddressed by the Commissioner, Ms Thabethe objected and advised that the ANC was in discussion around this clause and that no definite position had been determined. She requested until 26 October to finalise this matter. The Chair agreed to allow this.
Before adjourning, the Chair asked that the State Law Advisor draft and make available to all members a legal opinion on maternity benefits.
The meeting was adjourned.
LABOUR PORTFOLIO COMMITTEE
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