Unemployment Insurance Bill; Labour Relations Amendment Bill: deliberations

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Labour

23 October 2001
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Meeting report

 

LABOUR PORTFOLIO COMMITTEE
24 October 2001
UNEMPLOYMENT INSURANCE BILL; LABOUR RELATIONS AMENDMENT BILL; BASIC CONDITIONS OF EMPLOYMENT AMENDMENT BILL: DELIBERATIONS

Chairperson: Mr. S. Manie

Relevant Documents :
Unemployment Insurance Bill [B3-01]
Labour Relations Amendment Bill [B77-01]
Department of Labour: Response to public hearings on amendments to the Labour Relations Act and Basic Conditions of Employment Act
Proposed Amendments to the Unemployment Insurance Bill [24/10/01] (see Appendix 1)
Legl opinion on maternity benefits: Commission on Gender Equality (see Appendix 2)
Proposed Amendments to the Labour Relations Amendment Bill & Basic Conditions of Employment Amendment Bill (see Appendix 3)

SUMMARY
Department of Labour presented its response to submissions made on the amendments to the Labour Relations Act and Basic Conditions of Employment Act. The additional proposed amendments were covered. Clause 3 of the Unemployment Insurance Bill as well as the issue of maternity benefits was also discussed.

MINUTES
Labour Relations Amendment Bill: response to submissions
Ms Seftel, Department of Labour, noted that a priority issue was Section 189 of the Labour Relations Act. She advised that CLOFED and the Free Market Foundation did not support the right to strike on retrenchments as envisaged in S189. This issue had been extensively negotiated during the NEDLAC process. She stated that the Department of Labour did not support this view.

Regarding elective rights for workers, Ms Seftel said that Business South Africa failed to support a worker’s right to approach either the Labour Court or exercise his/her right to strike. CLOFED, on the other hand, argued that an elective right would create greater uncertainty. The Department of Labour had decided not to remove the proposed amendment.

COSATU had argued that "meaningful" should be added to the words "joint consensus seeking process" in Section 189(2) of the LRA Bill. The Department of Labour, after obtaining legal opinion, decided that it be deleted as a Court would be unable to establish what would be "meaningful".

The Chair asked for comments from Committee member. He opined that it was easily understood that parties could engage in a consensus seeking process, however, it need not be meaningful.

Mr. Clellend (DP) supported the Department of Labour’s proposal that the word be deleted.

Mr. Sitole (ANC) asked what the benefit of process was behind the use of this word.

The Deputy Director General explained that during the consultation process with NEDLAC, the Labour constituency had indicated that the manner in which Section 189 had been drafted did not provide for a consultation period with workers to make representations, leaving the worker in a vulnerable position. The Geneva Convention was a typical example thereof. He suggested that parties accept the legal opinion that the word be excluded from the section. The Chair agreed with this view.

Mr. Clellend remarked that the word "meaningful" added cumbersome weight to the section and should be excluded.

Ms Thabethe (ANC) wondered who is to decide what is "meaningful" or not. The Chair asked that the Committee make a decision on the issue immediately to avoid further delays. Mr. Mapalala (ANC) asked that the State Law Advisors be consulted on this issue. Mr. Moonsamy (ANC) asked if other statutes had been reviewed in relation to this issue. The Chair suggested that this section be flagged for finalisation on 26 October 2001.

Ms Seftel then proceeded to deal with Section 189(4)(b), 189(A)(3), 189(3) and 189A(7) of the Bill. She stressed that the services and use of a facilitator would only be successful if both parties supported and agreed to this process.

Section 189(4)(b) dealt primarily with the role of the Labour Courts in the disclosure of information. COSATU as well as the Department of Labour supported this proposal.

Section 189(A)(3) of the Bill related to the facilitation process at the request of either party. COSATU’s view was that a facilitator requires appointment at the request of one of the parties and not both. The Department of Labour rejected this proposal based on the reason that it could result in a situation where a facilitator could be requested in all retrenchment disputes.

Section 189(3) dealt with what should be disclosed in writing. COSATU proposed that all relevant information be disclosed in writing. The Department of Labour favoured this proposal.

Mr Moonsamy (ANC) asked what the situation would be if the CCMA did not have sufficient capacity to provide facilitators. Mr. Ramodike (UDM) asked if the CCMA’s lack of capacity related to resources and availability of funds. Mr. Mapalala remarked that the requirement of a facilitator would be a necessity. Ms Thabethe (ANC) commented that in the case of dispute, no two parties can resolve an issue unless there is intervention by either a mediator or facilitator. She added that she was in favour of this proposed amendment.

In response to these questions and comments, Ms Seftel stated that if parties agree to the services of a facilitator, a period of 60 days would be allowed with the facilitator with the aim of attaining consensus. If, however, the parties do not agree to the use of a facilitator, the parties would be afforded a period of 30 days by themselves to reach an agreement. After expiry of the 30 day period, workers will be afforded their right to strike.

With regard to the capacity of the CCMA to provide facilitators, it was not an insurmountable issue.

Mr. Oliphant (ANC) suggested that two issues require consideration:
- the quality of service provided by the facilitator and
- capacity building of the CCMA.

Mr. Ramodike concurred with this view. Mr. Moropa (ANC) argued that the role of the facilitator was to advise an employer on ways to effectively avoid retrenchment. If, however, the reasons for dismissal are substantially fair, it is not a situation which is easily avoidable.

The Chair said that the role of facilitator could only be effective if both parties are in agreement therewith. He asked that the Department of Labour review this issue and present the Committee with a redraft.

Ms Seftel proceeded to deal with Section 189A(7) relating to the 60 day facilitation period, and the ability by agreement to reduce this period. The Department of Labour proposed that Section 189(5)(b) be deleted and redrafted to make provision for all time periods to be varied by agreement. No objections were raised by Committee members to this proposed amendment.

Section 189A(7)(a) which related to notice periods was opposed to by Business South Africa and CLOFED who wanted more flexibility to reduce the notice periods of workers facing retrenchment. COSATU, however, requested strengthening of this provision so that notice periods cannot be reduced. Both views were rejected by the Department of Labour. Committee members supported the Department’s proposal.

Section 189(8), dealing with the 90 day period for referrals on substantive issues that can now be reduced to 30 days, was supported by both the Department of Labour and the Committee.

Section 189A(10)(b) which dealt with the relationship between different groups of workers represented by different unions caused concern amongst members. The Chair said that the clause remain as is.

The following sections were agreed to by all members and no objections were raised:
Section 189(13) dealing with the applications to the Labour Court which should be made on an expedited basis.
Section 189A(1) dealing with the size of retrenchments.
Section 189A(11) dealing with sympathy strikes.
Section 189A(11)(c) relating to sympathy strikes and circumstances.
Section 189A(11)(c) relating to sympathy strikes and when the notice period expires.
Section 189A(11) dealing with offensive and defensive lock-outs.
Section 189(A)(13), (14) and (15) dealing with an order for compensation by the Labour Court.
Section 189(A)(19)(i) relating to the definition of operational requirements.
Section 191(5)(a)(ii) dealing with constructive dismissals after transfer.

Unemployment Insurance Bill: Clause 3
The Chair asked that the flagged Clause 3 of the Unemployment Insurance Bill be dealt with.

The UIF Commissioner of the Department of Labour, Mr. S. Mkhonto, said that Section 2(a) had been redrafted to state the following: "The Minister must, as soon as possible after this Act takes effect, designate or appoint a body which seeks to investigate and make recommendations regarding the application of this Act to domestic and seasonal workers."

The Deputy Director General said that domestic workers had been removed from the list of exclusions.

Mr. Sitole (ANC) asked if the onus was on the Minister to make regulations or implement mechanisms for the benefit of domestic and seasonal workers.

Mr. Kettledas replied that Section 54(5) made provision for the Minister to make regulations. The Chair added that the investigation would determine the type of regulations required and believed that the section as it stood provided for unforeseen eventualities.

Legal opinion on maternity benefits: Commission on Gender Equality
The Chair asked the Commissioner to deal with the legal opinion on maternity benefits submitted by the Commission on Gender Equality.

The Commissioner pointed out that the Bill as it now stood provided for a shift from the earlier provisions in that it removed the requirements of maternity benefits to any other benefits. Subsequently, it also accommodated the removal of requirements and exhaustion of other benefits. The Commissioner said that the legal opinion made reference to Conventions applied in other countries. It cannot be said that the same laws are binding on South Africa. Therefore, the Bill as it stood was not in breach of any convention and should be allowed to proceed.

The Chair then asked whether one should penalise women because of maternity. He asked if the Committee was amenable to include in its report on the Bill to Parliament that the Department of Labour investigate this issue extensively and provide a report. The Committee was in favour of this resolution. The Chair requested the Department of Labour to list this as one of its priorities.

Basic Conditions of Employment Amendment Bill
The Department of Labour concluded the last item for discussion: Section 50(2A) and 55 relating to the 45 hour week. The Department of Labour supported COSATU’s proposal that the words "overtime" and "meal intervals" be deleted. However, the Department of Labour opposed COSATU’s suggestion that the maritime sector be allowed to work more than 45 hours per week (as opposed to sectors where it is ‘necessitated by the operational circumstances’). The Committee agreed with the Department of Labour.

Labour Relations Amendment Bill
The Committee, to speed up the process, agreed to the following amendments to the Act:
Clause 12: Section 51 dealing with dispute resolution of a council.
Clause 22: Section 115(2A)(a) dealing with rules on conciliation and arbitration and (j) dealing with costs to be treated the same as fees.
Clauses 22, 25, 26 & 27: Sections 115(2B), 133, 135 and 138 concerning the role of NEDLAC in respect of CCMA regulations.
Clause 40: Section 158(1A) on settlement agreements being made orders of the Labour Court.
Clause 45: Section 186(f) relating to the link between unfair dismissal and S197.

Ms Seftel, in dealing with the issue of CCMA fees, said that the reason for imposing this measure was in order to avoid abuse.

Due to time constraints, no further issues could be dealt with. The issues flagged would be finalised on 26 October 2001. In conclusion, the Chair informed the Committee that all three Bills would be voted on at the meeting of 26 October 2001.

Appendix 1:
AMENDMENTS PROPOSED: UNEMPLOYMENT INSURANCE BILL [B3-2001]

CLAUSE I
1.
On page 5, after line 12 to insert the following definition:
"child" means a person as contemplated in section 30(2) who is under the age of 21 years and includes any person under the age of 25 who is a learner and who is wholly or mainly dependent on the deceased.

2. On page 5, from line 30, to omit the definition of "employee" and to substitute:
"employee" means any person who works for another person and who receives any remuneration or to whom any remuneration accrues, but excludes an independent contractor;

3. On page 5, in line 34, to omit "5(2)(a)" and to substitute "4(2)(a)"

4. On page 5, from line 36, to omit the definition of "employer" and to substitute:
"employer: means any person, including a person acting in a fiduciary capacity, who pays or is liable to pay to any person any amount by way of remuneration, and any person responsible for the payment of any amount by way of remuneration to any person under the provisions of any law or out of public funds, excluding any person who is not acting as a principal.

5. On page 6, from line 10, to omit the definition of "remuneration" and to substitute:
remuneration" means any amount which is paid or is payable to any person by way of any salary, leave pay, allowance, wage, overtime pay, bonus, fee, emolument or stipend in respect of services rendered.

6. On page 6, after line 21, to insert the following definition:
"seasonal worker" means any person who is employed by an employer for an aggregate period of at least three 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.

CLAUSE 3
1.
On page 6, in line 44 to omit paragraph (e)

2.
On page 6, from line 45 to omit subsection (2) and to substitute:
2.(a) The Minister must, as soon as possible after this Act takes effect, designate or appoint a body which must seek to investigate and make recommendations regarding the application of this Act to domestic and seasonal workers.

3. On page 6, in line 48, to omit "18and to substitute "12".CLAUSE 10
1. On page 8, in line 31, to omit "sectionand to substitute "sections 16 and"

2. On page 8, in line 31, after "1999)," to insert "in order to cover any deficit in the Fund".

CLAUSE 13
1. On page 9, in line 35, to omit "dividing the monthly remuneration by 30,33" and to substitute:
"multiplying the monthly remuneration by 12 and dividing it by 365".

2. On page 9, in line 36 to omit "dividing the weekly remuneration by 7" and to substitute:
"multiplying the weekly remuneration by 52 and dividing it by 365".

CLAUSE 14
1. On page 10 from line 6, to omit "or disability grant".

2. On page 10, from line 14, to omit the paragraph (iv)

CLAUSE 15
1. On page 10, in line 29, to omit "application in terms ' of section 17and to substitute
"unemployment".

CLAUSE 16
1. On page 10, from line 37, to omit paragraph (a) and to substitute:
(a) the reason for the unemployment is
(I) the termination of the contributor's contract of employment by the employer of that contributor or the ending of a fixed term contract.
(ii) the dismissal of the contributor, as defined by section 186 of the Labour Relations Act, 1995 (Act No.66 of 1995), or
(iii) insolvency in terms of the provisions of the Insolvency Act, 1936 (Act No. 24 of 1936).

2.
On page 11 in line 6, to omit ", dates and places " and to substitute "and dates"

CLAUSE 17
1.
On page 11, in line 20, to omit "good" and to substitute "just"

2.
On page 11, in line 27, to omit "weekly"

3. On page 11, in line 30, to omit "and where".

CLAUSE 18
I. On page 11, in line 41 to omit "claims officer" to substitute "applicant at the time of application"

2.
On page 11, in line 42, to omit ", without good reason, refuses to accept
"receives unemployment benefits and without just reason refuses to accept appropriate,"

CLAUSE 19
1.On page 11, in line 4g to omit "employee" up to and including "illness" in line 50 and to substitute:
"contributor ceases to work as a result of the illness."

CLAUSE 20
1. On page 12, from line 10 to omit paragraph (a).

2. On page 12, line 15, after "Chapter" to insert "or adoption benefits in terms of Part E of this Chapter; or",

3. On page 12, in line 16, to omit "good" and to substitute "just"

CLAUSE 21
1.
On page 12, in line 22, to omit "in " each week ofand to substitute "for".

2. On page 12, in line 23, to omit "weekly".

3. On page 12, in line 25, to omit "weekly".

CLAUSE 22
1. On page 12, in line 43, to omit "weekly".

CLAUSE 23
1, On page 12, in line 53, to omit "claims officer" and to substitute "applicant at the time of application"

CLAUSE 24
1.
On page 13, in line 4, to omit "confinement" and to substitute "delivery and the period thereafter,"

2. On
page 13, in line 9, to omit "in each week of" and to substitute "for".

3. On page 13, in line 10, to omit "weekly"

4. On page 13, in line 12, to omit "weekly."

5. On page 13, in line 14, to omit "in confinement" and to substitute "on maternity leave"

6. On page 13, in line 17, to omit "once she has been confined" and to substitute "during the third trimester".

CLAUSE 25
1. On page 13, in line 22, to omit "confinement" and to substitute "childbirth".

2. On page 13, in line 27, to omit "confinement" and to substitute "childbirth".

3. On page 13, in line 29, to omit" regarding 4. On page 13, in line 34, to omit "weekly".

CLAUSE 26
1. On page 13, in line 43, to omit "claims officer" and to substitute "applicant at the time of application"

CLAUSE 27
1
. On page 14, in line 5 to omit "maternityand to substitute "adoption"

2.
On page 14, in line 6, to omit "in each week of" and substitute "for".

3. On page 14, in line 7, to omit "weekly".

4. On page 14, in line 10, to omit "weekly".

CLAUSE 28
1. On page 14, in line 26, to omit "weekly".

CLAUSE 29
1. On page 14, in line 36, to omit "claims officer" and to substitute "applicant at the time of application"

CLAUSE 30
1.
On page 14, in line 43, to omit "good" and to substitute "just"

2.
On page 14, in line 49, after "spouse" to insert "or life partner".

3. On page 14, in line 50, after "spouse" to insert "or life partner".

4. On page 14, in line 52, to omit "weekly"

5. On page 14, from line 55, to omit subsection (4).

CLAUSE 31
1. On page 15, in line 14, to omit "weekly".


CLAUSE 32
1.
On page 15, in line 25 to omit "claims officer" and to substitute "applicant at the time of application"

CLAUSE 35
1.
On page 15, from line 43, to omit subsections (2) and (3) and to substitute:
(2) If the Commissioner determines that a person contemplated in subsection (1) has been paid benefits in error or in excess of the person's entitlement, the Commissioner must, within eighteen months of the date of the determination, make a written demand for repayment from that person.

(3) A written demand contemplated in subsection (2) must include-

(a) a statement of the amount paid in error;

(b) an explanation as to why that person was ineligible to receive the funds; and

(c) evidence that the person to whom the demand is addressed actually received the funds.

(4) The persons contemplated in subsection
(1) must refund the amount within 90 days of the written demand.

CLAUSE 37
1. Clause to be rejected.

NEW CLAUSE
1. That the following be a new Clause 37 to follow clause 36
Disputes relating to payment or non-payment of benefits
37.(1) A person who is entitled to benefits in terms of this Act may appeal to the appeals committee of the Board if that person is aggrieved by a decision of-

(a) the Commissioner to suspend such person's right to benefits; or
(b) a claims officer relating to the payment or non-payment of benefits.

(2) A person who is dissatisfied with the decision of the appeals committee may refer the matter for arbitration to the CCMA.

CLAUSE 48
On page 18, after line 6, to add the following subparagraphs
(iii) policies for minimising unemployment; and
(iv) the creation of schemes to alleviate the effects of unemployment
;

CLAUSE 49
1. On page 18, in line 22, to omit "four": and to substitute "three".

2. On page 18, in line 23, to omit "four" and to substitute "three".

3. On page 18, in line 24, to omit "and" and to insert the following paragraph:

(c) three members must be nominated by NEDLAC to represent organisations of community
and development interests; and

4. On page 18, in line 25, to omit "four": and to substitute "three".

5. On page 18, in line 40, to omit "good" and to substitute "just"

CLAUSE 50
1. On page 18 in line 50, after "Boardto insert", which must include an appeals committee".

CLAUSE 52
1. On page 19, in line 33, to omit "Department of Finance" and to substitute "National
Treasury".

CLAUSE 57
1. On page 20, after line 48, to add the following subsection:

(3) (a) In order to determine the payment of benefits in terms or this Act, the Commissioner may access any information on a database of the State that contains information regarding social security.
(b) For purposes of paragraph (a) the Commissioner must co-operate with other State institutions to link their respective databases.

CLAUSE 68
1. On page 24, in line 27, after "section" to insert", section 69".

NEW CLAUSE
1. That the following be a new clause to follow clause 68:

Persons regarded as Contributors for purposes of Act

69.(1) The Minister may, after receipt of an application in a prescribed form and with the concurrence of the Board, by notice in the Gazette, declare that as from a date specified in the notice any specified class of persons, or any person employed in any specified business or section of a business or in any specified area, must be regarded as contributors for purposes of this Act.

(2) The procedure referred to in section 55(1) applies with the necessary changes to a notice issued under subsection
(1)

SCHEDULE 2
Schedule to be replaced.

NEW SCHEDULE
1. That the following be a new Schedule:

SCHEDULE 3
1.
On page 28 in line 11, to omit "R93 " and to substitute "R97 188".

2. On page 28, from line 13, to omit Table One and to substitute:

U.I. BILL 22
OCTOBER 2001
DOMESTIC AND SEASONAL WORKERS - INVESTIGATION AND REGULATIONS
SECTION 3- SECTION ON INVESTIGATION

3(1) Despite subsection (1), this Act will only apply to domestic and seasonal workers and their employers on a date determined by the President by proclamation in the Gazette and in accordance with the recommendations of the body appointed in terms of subsection (2), 12 months after this act will take effect.

3(2) (a) The Minister must as soon as possible after this section takes effect designate or appoint a body which must seek to investigate and make recommendations regarding administration of the Act in respect domestic and seasonal workers.
(b) The investigation must be concluded within 42 months from the date that the Act takes effect.
(c) The Minister must consult the Board on the outcome of the investigation.

Appendix 2:
LEGAL OPINION ON THE UNEMPLOYMENT INSURANCE BILL [B3 - 2001]
SOUGHT BY: COMMISSION ON GENDER EQUALITY

22 October 2001

INTRODUCTION
1. The Unemployment Insurance Bill1 (the Bill) provides for maternity benefits of up to a maximum
amount of 60% of the applicant's salary. It further provides for a four month maternity leave period

2. The Bill also envisages the "de-linking" of maternity and unemployment benefits. A feature of the
Unemployment Insurance Act, Act no.30 of 1966, is that maternity and unemployment benefits are
"linked", the effect of which is that women who draw maternity benefits use up their unemployment
benefits. There is wide consensus amongst the drafters of the Bill and various commentators on the
Bill that the effect of this provision is discriminatory in it's impact upon working women. Hence the
attempt at reformation in the Bill which disallows the erosion of unemployment benefits when the
applicant woman claims a maternity benefit.

3. Advice is sought regarding the concept of maternity benefits in the Bill, more particularly whether
the percentage of benefit an applicant is entitled to at the time of maternity leave is constitutional and in line with South Africa's commitments under international law.

4. As argued below, it is clear that the construction of the percentage benefit in the Bill amounts to
unfair discrimination against applicants for maternity benefits on the basis of gender and is therefore
unconstitutional.

DISCRIMINATION
5. International Labour Organisation (ILO) Maternity Protection Convention and Recommendations:

5.1 ILO Maternity Protection Convention (No 191 of 2000) conceptualises of a growing need to
provide protection for pregnancy, which is the shared responsibility of government and society.

5.2 In terms of Article 1(2) of the above Convention, the importance of increasing cash benefits to the full amount of the applicant woman's previous earnings is stressed.

5.3 The above Convention illustrates the latest shift in the conceptualisation of maternity benefits
internationally. Maternity benefits are viewed as distinct in nature, more particularly, in relation to
unemployment benefits. The distinction is in line with the attempt in the Bill to "de-link" maternity and
unemployment benefits. Nontheless, this distinction is not fully realised in the manner conceived in Convention, as the Bill provides for a maximum cash benefit of 60% of salary. This is contrary to the recommendation of providing for the full amount of salary as stressed in the above Convention

5.4 South Africa is signatory to the ILO Conventions. As such, South Africa has incurred certain
obligations in terms of it's stated commitments under International Law. South African policies and
laws must, in terms of these stated obligations conform to the principles set out in the international
instruments. It would appear that the Bill does not live up to the standard articulated in the Convention as regards the percentage of benefit an applicant woman would receive were the Bill to become law.

6. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

6.1 South Africa ratified CEDAW in 1995.
6.2 South Africa has, in terms of Article II of the Convention, incurred an obligation to ensure that
women are not discriminated against on the grounds of, inter alia, maternity and pregnancy.

7. Constitution of the Republic of South Africa

7.1 The opinion set out above raises the important consideration of whether the construction of
maternity benefits in the Bill, as a legislative measure about to be embarked upon by the state, is a
reasonable one both in terms of the Constitution and in terms of leading socio-economic rights case
law to date.2

7.2 The Bill fails to effectively "de -link" maternity benefits from unemployment benefits as already
argued above. Maternity benefits are not regarded as distinct in that maternity is viewed as a time of
unemployment. As a consequence the benefit is placed at below normal salary amounts. It can be
convincingly argued that the Bill conceptualises that the costs of reproduction are to be borne by
women alone, rather than recognising the role of the state and society in providing supportive
mechanisms to facilitate the reproductive labour activity of women. This conceptualisation is also
contrary to the principles set out in the ILO and CEDAW Conventions.

7.3 Section 9(3) of the Constitution prohibits unfair discrimination by the state, directly or indirectly
against anyone on one or more grounds, inter alia, gender and pregnancy.

7.4 The provision in the Bill allowing a maximum benefit of 60% of salary may certainly constitute
indirect discrimination on the basis of gender and pregnancy status, as it would appear that the law
would require women to engage in maternity related activities at the cost of their normal salary. This is further exacerbated by what is clearly women's disadvantaged status in society. This latter premise is trite and does not require further elaboration.

7.5 The Bill's construction amounts to discrimination which is indirect in nature. Indirect discrimination occurs where a practice or policy has a disproportionate impact on members of a vulnerable group. Clearly, the impact on the rights of applicants for maternity benefits would be disproportionately discriminatory, as only women can ever be eligible for maternity benefits. The Bill thus indirectly discriminates against women on the basis of gender in that women would be prejudiced in claiming maternity benefits which are not recognised as deserving of the nature of the benefit in it's own right.

7.6 In the Grootboom matter the Constitutional Court held that in relation to a right which imposes
positive obligations on the state, such as the right to have access to social security3 the key aspect is whether the legislative and other measures taken by the state are reasonable.

7.7 In terms of section 27 (2) of the Constitution, the state must take reasonable legislative and other measures to achieve the progressive realisation of the right to social security.

7.8 It could be argued that given the states international obligations relating to maternity benefits, all
women, regardless of whether they are high or low income earners should be entitled to a full salary
once they go on maternity leave.

7.9 However, in terms of Grootboom the state must have a plan which provides for short, medium and long term needs. In terms of Grootboom, it could be argued that the urgent priority of the state, at present, is to provide full pay on maternity for low income earners.

8. The opinion is that, in order to achieve the Bill's objective to comprehensively "de-link" maternity
benefits from unemployment benefits and to recognise the fully the responsibilities that are inherent in maternity leave, the Bill must provide for a full salary component upon maternity. Anything short of
this amounts to unfair discrimination on the basis of gender and will render the Bill unconstitutional.

Footnotes:

1As introduced in the National Assembly and published in Government Gazette
No.21563 of 11 September 2000

2See Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 CC

3Section 27 (J)(c) of the Constitution

Appendix 3:
AMENDMENTS PROPOSED: BASIC CONDITIONS OF EMPLOYMENT AMENDMENT BILL [B70-2001]
1. Section 28(2)(b) of the principal Act is deleted.
288
"
:
"
the applicant's period of confinement".

"and to substitute
"


"

NEW CLAUSE

CLAUSE 9

3. On page 5, in line 4, before 'employees' insert 'the';

4. On page Sin line 4, omit "overtime, meal intervals,".

5. On page 5, on line 8, before 'determination' insert 'the';

6. On page 5, in line 11, after 'sought' insert 'and the majority of employees in the sector are not members of a registered trade union'.

CLAUSE 10

CLAUSE 7

4. On page 4, in line 41 - 42, omit 'a contract of'.

5. On page 4, in line 43 - 44, omit "in terms of section 49(1) of the Basic Conditions of Employment Act".

6. On page 4, in line 52, to omit "Commission" and to substitute "council".

7. On page 4, from line 52, to insert

"(b) If a party to an arbitration in terms of this section, that is not a party to the council, objects to the appointment of an arbitrator in terms of paragraph (a), the Commission, on request by the council, must appoint an arbitrator.

(c) If an arbitrator is appointed in terms of sub~paragraph (b) -

(i) the Council remains liable for the payment of the arbitrator's fee; and

(ii) the arbitration is not conducted under the auspices of the Commission."

CLAUSE 9

CLAUSE 12

"Unless otherwise agreed to in a collective agreement," before "Sections 1 42A".

10. Amend footnote 11 to the principal Act by inserting after "disputes" in the first line of the footnote "contemplated by subsection (3)".

11. Amend footnote 11 to the principal Act by inserting after "disputes" in the second paragraph of the footnote "contemplated by subsection (3)".

CLAUSE 15

CLAUSE 17

14. On page 8, in line 25 to 26, omit "in contemplation or in furtherance of the strike or lock-out".

CLAUSE 22

"(k) the right of any person or category of persons to represent any party in any conciliation or arbitration proceedings;

(I) the circumstances in which the Commission may charge a fee in relation to any conciliation or arbitration proceedings or for any services the Commission provides, and"

17. On page 10, in line 31, renumber paragraph (k) as (m).

18. On page 10, from line 34, omit subsection (2B).

CLAUSE 30

19. On page 12, in line 12 omit "to the Commission";

20. On page 12, in line 12, omit "for" and substitute "to".

21. On page 12, in line 15, omit sub-paragraph (c) and insert-"The Commission may on good cause shown waive the requirement in
sub-paragraph (b) and pay to the witness the prescribed witness fee."

CLAUSE 36

CLAUSE 37

CLAUSE 38

CLAUSE 39

CLAUSE 40

CLAUSE 45

29. On page 17, in line 4, omit "inquiry" and substitute "arbitration".

30. On page 17, in line 11, omit 'an inquiry in terms of this section' and substitute 'a pre-dismissal arbitration'.

31. On page 17, in line 13, omit 'inquiry' and substitute 'arbitration'.

32. On page 17, in line 16, omit "an inquiry in terms of this section" and substitute "a pre-dismissal arbitration".

33. On page 17, in line 18, omit "inquiry" and substitute "arbitration in terms of this section".

34. On page 17, in line 26, omit "inquiry conducted" and substitute "arbitration".

35. On page 17, in line 32, omit "inquiry" and substitute "arbitration".

36. On page 17, in line 34, omit "inquiry" and substitute "arbitration".

On page 17, after line 37, insert-

"(9)
An arbitrator conducting an arbitration in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, direct what action, if any, should be taken against the employee.

(1 0)(a) A private agency may only conduct an arbitration in terms of this section if it is accredited for this purpose by the Commission

(b) A council may only conduct an arbitration in terms of this section in respect of which the employer or the employee is not a party to the council, if the council has been accredited for this purpose by the Commission.

CLAUSE 48

CLAUSE 49

41. On page 19, after line 22, insert-"(c) the consulting parties may agree to vary the time periods for
facilitation or consultation."

42. On page 19, in line 36, omit sub-paragraph (b).

On page 19, in line 40, omit sub-paragraph (a) and substitute
"(a) the time period, and the variation of time periods, for facilitation."

44. On page 19, in line 48, omit 'of the termination of ' and substitute 'to terminate'.

45. On page 19, in line 48, omit 'contract' and substitute 'contracts'.

46. On page 19, in line 52, omit 'of contract of employment'.

47. On page 19, in line 57, omit 'the' and substitute "a".

48. On page 19, in line 57, before 'Commission', insert "a".

49. On page 19, in line 58, omit "a".

50. On page 20, in line 2, omit 'of termination of and substitute 'to terminate'.

51. On page 20, in line 2, omit 'contract' and substitute 'contracts'.

52. On page 20, in line 6, omit 'of the contract of employment'.

On page 20, from line 13 omit "sub-section (10) and substitute
"10(a) A consulting party may not-
(i) give notice of a strike in terms of this section in respect of a dismissal, if it has referred a dispute concerning whether there is a fair reason for thrat dismissal to the Labour Court;

(ii) refer a dispute about whether there is a fair reason for a dismissal to the Labour Court, if it has given notice of a strike in terms of this section in respect of that dismissal.

If a trade union gives notice of a strike in terms of this section -

(i) no member of that trade union, and no employee to whom a collective agreement concluded by that trade union dealing with consultation or facilitation in respect of dismissals by reason of the employers' operational requirements has been extended in terms of section 23(1)(d), may refer a dispute concerning whether there is a fair reason for dismissal to the Labour Court;

any referral to the Labour Court contemplated by subparagraph (i) that has been made, is deemed to be withdrawn.

54. On page 20, in line 27, omit sub-paragraph (b) and substitute -"(b) subject to subsection 2(a), section 65(1) and (3);"

On page 20, after line 46, insert -

"(d) make an award of compensation, if an order in terms of sub- paragraphs (a) to (c) is not appropriate".

56. On page 20, from line 49, omit sub-paragraph (b).

57. On page 20, in line 58, omit 'a'.

58. On page 21, in line 8, omit "an operational" and substitute 'a'.

CLAUSE 50

60. On page 21, in line 46, omit 'at any stage after' and substitute 'once'.

61. On page 21, in line 52, after 'conditions' insert 'or circumstances'.

62. On page 21, in line 53, omit 'of' and substitute 'at'.

63. On page 22, in line 5, omit 'section' and substitute 'subsection'.

64. On page 22, in line 21, omit 'the' and substitute 'a'.

CLAUSE 51

CLAUSE 52

On page 22, after line 51 insert-

"(3) The compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but not more than the equivalent of 12 months remuneration

CLAUSE 53
On page 23, in line 3 - 4, omit 'or undertaking' and insert', "undertaking or service".

On page 23, from line 24, omit sub-paragraph (3) and substitute -

"3(a) The new employer complies with subsection (2) if that employer
employs transferred employees on terms and conditions that are on the whole not less favourable to the employees than those on which they were employed by the old employer.
(b) Sub-paragraph (a) does not apply to employees if any of their collective agreement."

On page 23, in line 33, after 'satisfied' insert footnote 53a with the following text -

"Section 14(i)(c) of the Pensions Funds Act requires the registrar to be
satisfied that any scheme to amalgamate or transfer funds is reasonable and equitable, and accords full recognition to the rights and reasonable benefit expectations of the persons concerned in terms of the fund rules, and to additional benefits which have become established practice."

On page 23, from line 45, omit subsection 6 and insert -

6(a) An agreement contemplated in subsection (2) must be in writing
and concluded between -

(i) either the old employer, the new employer, or the old and new employers acting jointly, on the one hand; and

(ii) the appropriate person or body referred to in section 189(1), on the other.

(b) In any negotiations to conclude an agreement contemplated by paragraph (a), the employer or employers contemplated in subparagraph (i), must disclose to the person or body contemplated in sub-paragraph (ii), all relevant information that will allow it to engage effectively in the negotiations.

(c) Section 16(4) to (14) applies, read with the changes required by the context, to the disclosure of information in terms of paragraph (b)."
72. On page 23, in line 57, after 'employer' insert 'in the event of a dismissal by reason of the employer's operational requirements'.

CLAUSE 54

74. On page 24, in line 37, insert 'provisional' before 'winding-up'.

75. On page 24, line 39, before 'rights' omit 'the'.

CLAUSE 55

CLAUSE 59

78. On page 27, in line 11, after 'repealed' insert ', and any reference in this item to those sections is a reference to those sections prior to amendment by the Amendment Act.

79. On page 27, in line 20, omit 'inquiry' and substitute 'arbitration'.

80. On page 28, from line 49, omit item 32.

CLAUSE 60
81 On page 29, in line 26, omit 'code' and substitute 'Code'.

 

77. On page 27, in line 8, omit 'regulations made by the Minister in terms of section 11 5(2B)(a) and substitute 'rules made by the Commission in terms of section 11 5(2A)(k)'.
76. On page 25, after line 37, insert -"(4) NEDLAC must prepare and issue a Code of Good Practice that
sets out guidelines for determining whether persons, including those who earn in excess of the amount determined in subsection (2) are employees."
73. On page 24, in line 29, omit "and" and substitute "or".
On page 22, from line 41, omit sub-section (1) and insert-

"(1) The compensation awarded to an employee whose dismissal is
found to be unfair either because the employer did not prove that the reason for dismissal was a fair reason relating to the employee's conduct or capacity or the employer's operational requirements or the employer did not follow a fair procedure, or both, must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months' remuneration calculated at the employee's rate of remuneration on the date of dismissal."
65. On page 22, in line 36, omit 'a'.
59. On page 21, in line 42, before "time" insert "relevant".
40. On page 19, in line 17, omit "dispute" and substitute "dismissal".
38. On page 18, in line 17, insert "in writing" before "all".

39. On page 18, in line 37, after "arbitrator" insert "or the Labour Court".
27. On page 16, in line 23 - 24, omit "of employment" and substitute "or circumstances at work".

CLAUSE 47
28. On page 17, in line 1, omit "inquiry into allegations about employee's conduct and capacity" and insert "pre-dismissal arbitration".
25. On page 15, from line 1, omit clause 39.
26. On page 15, in line 53, omit "either".
24. Page 14, from line 7, omit clause 38.
23. On page 14, from line 1, omit clause 37.
22. On page 13, from line 43 onwards, omit clause 36.
15. On page 10, in line 30, omit 'and';

16. On page 10, from line 30, insert-
13. On page 8, in line 25, omit "any".
12. On page 8, in line 11, omit 'needs' and substitute 'need'.
8. On page 6, in line 3, to omit 'Application to establish statutory council' and to substitute 'Disputes between bargaining councils in public service'.
9. On page 7, in line 8, to insert -
3. On page 4, in line 41, after "which" to insert "in terms of section 49(1) of the Basic Conditions of Employment Act".
7. On page 5, in line 24, omit 'contained' and substitute 'of employment'.

AMENDMENTS PROPOSED: LABOUR RELATIONS AMENDMENT BILL [B77-2001]

CLAUSE 3
1. On page 3, in line 33, to omit "domestic" and to substitute "home

CLAUSE 4
2. On page 3, line 47, to omit 'a bargaining council: and to substitute 'bargaining councils'.
2. On page 5, in line 3, omit 'the'.
 

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