A S U M M A RY F O R U S E R S

LABOUR LAW AMENDMENTS

INTRODUCTION

The purpose of this presentation is to inform users of the proposed amendments to the:

Labour Relations Act (LRA), which commenced on 1 January 2015;

Employment Equity Act (EEA), which commenced on 1 August 2014; and

The Basic Conditions of Employment Act (BCEA) which commenced on 1 Sep 2014.

THE LABOUR RELATIONS ACT AMENDMENTS

OBJECTS OF THE LRA

Section 1 of LRA provides that the purpose of the LRA is: To advance:

Economic development;

Social justice;

Labour Peace; and

Democratisation of the workplace.

Sections 198A, B, and C of the Labour Relations Act are added to the original Section 198:

Sections 198A refers to Temporary Employment

Services

Sections 198B refers to Fixed term contract

employees

Sections 198C refers to Part time employees

SECTION 198A-DREGULATION OF NON-STANDARD EMPLOYMENT

Broad changes: Sections 198A, B and C extend significant protection

particularly to employees earning up to the BCEA threshold of R 205 433.30 (as amended on 1 July 2014).

The majority of these protections only apply to employees after they have been in employment for three months.

However note the three month deemed provision

SECTION 198A-DREGULATION OF NON-STANDARD EMPLOYMENT

SECTION 198DEFINITION OF TEMPORARY EMPLOYMENT SERVICE

The definition of “temporary employment services” or “labour broker” remains unchanged i.e.:

Any person who, for reward, procures for or provides to a client other persons –

Who perform work for the client; and

Who are remunerated by the temporary employment service

SECTION 198A NEW DEFINITION OF “TEMPORARY SERVICE”

New definition of “temporary service”: The employee works for:

the TES’s client for a period not exceeding three months; or

as a substitute for an employee who is temporarily absent (e.g. on sabbatical or maternity leave) irrespective of the three month limit; or

in a category of work, for any period of time, where the service is determined to be a temporary service (either as per a Bargaining Council agreement, or as provided in a Sectoral Determination / Ministerial Notice).

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SECTION 198A DEEMED EMPLOYMENT (TES)

Deemed employment: Employees earning: below the threshold; and

who perform a temporary service for more than three months for the client

are considered employees of the client for the purposes of the LRA, except employees who work as substitutes for employees who are temporarily absent.

TES and client are jointly and severally liable if TES contravenes a collective agreement, binding arbitration award, BCEA or a determination made in terms of the Wage Act, not unfair dismissals.

INTERPRETATION - CASUAL EMPLOYEEAS DEFINED IN THE MIBCO MAIN AGREEMENT

CLAUSE 2 READ WITH CLAUSE 3(5)

If employed by a TES, a Casual Employee might constitute an exception to the Section 198A deemed employment after three months provision, i.e. Casual Employee is defined as an employee:

Not registered with MIBCO;

Not more than 24 hours per month;

Not more than (104 days) per year if student;

Earnings – hourly as per Main Agreement;

Other provisions in terms of Main Agreement with regards to

conditions of employment not applicable to casual employees.

Essentially in this manner the three month period might be

extended

INTERPRETATION – PART TIME EMPLOYEE AS DEFINED IN THE MIBCO MAIN AGREEMENT

CLAUSE 2 READ WITH CLAUSE 3(5)

If employed by a TES, a Part Time Employee might constitute an exception to the Section 198A deemed employment after three months provision, i.e. Part Time Employee is defined as an employee:

An employer may only employ a Clerk (Division B), in terms of

the Main Agreement as Part Time Employee;

May not work more than 5 hours per day in any one day;

Less than 23 hours in a week – no Council contributions payable;

All other terms & conditions of Main Agreement are applicable.

Essentially in this another possible manner the three month period

might be extended.

SECTION 198A NEW DEFINITION OF “TEMPORARY SERVICE”

New definition of “temporary service”: The employee works for:

the TES’s client for a period not exceeding three months; or

as a substitute for an employee who is temporarily absent (e.g. on sabbatical or maternity leave) irrespective of the three month limit; or

in a category of work, for any period of time, where the service is determined to be a temporary service (either as per a Bargaining Council agreement, or as provided in a Sectoral Determination / Ministerial Notice).

SECTION 198ATES EMPLOYEES - PROTECTIONS

New type of dismissal: Termination by TES (whether at the instance of the TES or client) of employee’s assignment with client to avoid “deemed employment”; or because employee exercises rights in terms of the LRA.

Not less favourable treatment: Deemed employees must be treated on the whole not less favourably than comparable employees unless there are justifiable reasons - see section198D(2)

SECTION 198D(2)JUSTIFIABLE REASONS FOR DIFFERENT TREATMENT

“Justifiable reasons for different treatment” refers to the application of a system which takes into account:

seniority, experience, length of service; merit; quality or quantity of work; and any other similar criteria (that are not prohibited

by the EEA).

Note: Affordability is not a justifiable reason.

SECTION 198BFIXED-TERM CONTRACTS

Definition of fixed-term contract:

A fixed-term contract is one which expires on the:

occurrence of a specified event; completion of a specified task or project; or a fixed date other than retirement age.

SECTION 198BFIXED-TERM CONTRACT (EXCLUSIONS)

Section 198B does NOT apply where:

The employee: earns more than the threshold; is employed in terms of a statute, sectoral determination

or collective agreement which allows for a fixed period.

The employer: employs less than ten employees; or employs less than 50 employees and whose business

has been in operation for less than two years.

SECTION 198BFIXED-TERM CONTRACT

An employer may engage an employee on a fixed-term contract or successive fixed-term contracts for longer than three months only if:

the nature of work is of a limited or definite

duration; or any other justifiable reason for fixing the term.

SECTION 198B JUSTIFIABLE REASONS: FIXED-TERM CONTRACT

Non-exhaustive list of justifiable reasons for successive fixed term contracts or contracts longer than three months (employer bears the onus to prove):

(a) replacing another who is temporarily absent; (b) temporary increase in work, not longer than 12 months; (c) student to gain experience; (d) engaged for specific limited duration project; (e) non-citizen with work permit;(f) seasonal work; (g) public works scheme; (h) external funding; and(i) reached retirement.

SECTION 198BJUSTIFIABLE REASONS - FIXED-TERM CONTRACT

Not less favourable treatment: An employee on a fixed-

term contract for longer than three months must not be

treated less favourably than permanent employees

performing same/similar work, unless justifiable reasons –

see section 198D (2).

SECTION 198D(2)JUSTIFIABLE REASONS FOR DIFFERENT TREATMENT

“Justifiable reasons for different treatment” refers to the application of a system which takes into account :

seniority, experience, length of service; merit; quality or quantity of work; and any other similar criteria (that is not be prohibited

by the EEA).

Note: Affordability is not a justifiable reason.

SECTION 198BFIXED-TERM CONTRACTS FURTHER PROTECTIONS

Employees on fixed-term contracts must be provided with equal access to opportunities to apply for vacancies (from day one, not only after three months).

Employees on fixed-term contracts for a specific project that has a limited or defined duration of more than 24 months are entitled to severance pay: - unless alternative employment with the same or

similar terms is offered; - prior to expiry of the contract.

SECTION 198CPART-TIME EMPLOYMENT

Definition: A “part-time employee” is an employee:

who works shorter hours than a comparable full-time employee; and

who is paid is according to the time worked.

A “comparable full-time employee” is an employee: who is paid for a full day; and who is identifiable as a full-time employee in terms

of custom and practice.

SECTION 198CPART-TIME EMPLOYEES (EXCLUSIONS)

Section 198C does NOT apply where:

The employee: earns more than the threshold; ordinarily works less than 24 hours; during the first three months of continuous employment

The employer: employs less than ten employees; or employs less than 50 employees and whose business has

been in operation for less than two years.

SECTION 198CDIFFERENT TREATMENT

Part-time employees may not be treated less favourably than full-time employees unless justified - see section 198D (2).

Justifiable reasons for different treatment refers to the application of a system which takes into account :

seniority, experience, length of service; merit; quality or quantity of work; and any other similar criteria (that is not be prohibited by the

EEA).

Note: Affordability is not a justifiable reason.

SECTION 198CPART-TIME EMPLOYEES: FURTHER PROTECTIONS

Part-time employees (after three months of employment) must be provided with:

equal access to opportunities to apply for vacancies; and

access to training and skills development.

SECTION 198DGENERAL PROVISIONS

Disputes about the interpretation and application of sections 198A, B and C may be referred to the CCMA or BC.

An interpretation dispute must be referred within six months after the act or omission.

Dismissal or ULP disputes must be referred within the existing time limits.

SECTION 198A-DTRANSITIONAL ARRANGEMENTS

Protections for all non-standard employees apply from the date the amendments come into effect.

But:

If the contract was entered into before the date of commencement of the amendments, the changes will be applicable from 1 April 2015.

SECTION 198ATRANSITIONAL ARRANGEMENTS

Section198A is applicable after the commencement date of the Act i.e. 1 January 2015.

But:

If TES services were procured before the 1 January 2015, section198A will be applicable from 1 April 2015

SECTION 198BTRANSITIONAL ARRANGEMENTS

Section198B applies to any fixed-term contract concluded after 1 January 2015.

But:

If the fixed-term contract was concluded before 1 January 2015, section 198B will apply from 1 April 2015.

SECTION 198C

TRANSITIONAL ARRANGEMENTS

S198(C) applies to any part-time employee employed after 1 January 2015.

But: If the part-time employee was employed before 1 January 2015, section 198C applies with effect from 1 April 2015.

ORGANISATIONAL RIGHTS

PURPOSE OF THE AMENDMENTS TO SECTION 21

Reason:

To provide for the organisation of employees engaged by a

TES;

To broaden the discretion of commissioners in respect of

the granting of organisational rights;

To grant majority rights to the most representative union;

To allow a commissioner to grant organisational rights

despite a threshold collective agreement.

WHO MAY OBTAIN ORGANISATIONAL RIGHTS?

2014/09/17 35

Currently:

Sufficiently

representati

ve union Current

ly:Majori

ty union

Additional:

Most representati

ve union

Additional:

Significant

interest

Access (s12), Stop orders (s13)

Leave (s15)

TU reps (s14)Disclosure (s16)

Access (s12), Stop orders (s13)

Leave (s15)

TU reps (s14)Disclosure (s16)Set thresholds

(s18)

SECTION 21(8C)EXERCISE OF ORGANISATIONAL RIGHTS

ChangeIn an arbitration a commissioner may:

in terms of sub-section(8B) grant organisational rights to unions who are the most representative trade union in the workplace.

in terms of sub-section(8C) grant organisational rights to unions who represent a significant interest or a substantial number of employees in the workplace despite an existing threshold agreement; or

(Both subject to conditions)

DISPUTE RESOLUTION

Change

A party must apply for a court date within six months of

delivering the application - court may condone late

application.

Review proceedings do not suspend operation of

arbitration award, unless security is furnished.

Review proceedings do interrupt prescription.

A judge must deliver judgment within a reasonable

period of time.

SECTION 145REVIEW OF AWARDS

Reason

To empower the Commission to intervene in protracted

disputes to try to resolve the dispute, where in the

public interest; To remove the need for consent.

SECTION 150COMMISSION OFFER TO RESOLVE DISPUTE

UNFAIR DISMISSAL

Change

There is an additional type of dismissal: Currently an employee whose fixed-term contract

expires must show that he/she expected to be given a new contract on the same or similar terms.

Now, employees may also claim dismissal on the expiry of the contract if they can show that they reasonably expected to be employed on an indefinite period.

A claim for unfair dismissal – the expectation may be one of permanent employment.

SECTION 186MEANING OF DISMISSAL

Change

Name changes from “pre-dismissal arbitration” to “enquiry by arbitrator”.

May be agreed upon in collective agreements. Legal representation by agreement or if permitted by

the arbitrator on application (in terms of the CCMA Rules).

(The fee increased as from 1 April 2014 to R 5 131.00 per day or part thereof)

SECTION 188AENQUIRY BY ARBITRATOR

Currently: “the earlier date of either the termination of the contract or when employee left the service of the employer.”

Change (addition to sub-section 2):(d) “if an employer terminates an employee’s employment on notice, the date of dismissal is the date on which the notice expires or, if it is an earlier date, the date on which the employee is paid all outstanding salary.”

SECTION 190(2)(d)DATE OF DISMISSAL

SECTION 213: DEFINITION OF “SERVICE”

Change

The definition of “service” is amended to include service by electronic mail and any other method of service specified by the Rules of the Commission.

BASIC CONDITIONS OF EMPLOYMENT ACT AS AMENDED ON 1 SEPT 2014

SECTION 74CONSOLIDATION OF PROCEEDINGS

If consolidating with a dismissal dispute:

Prior to the amendments, a claim for outstanding monies such as notice pay, leave, overtime: Had to be referred along with the dismissal dispute; the claim could not be outstanding for more than a

year; It was a requirement that no compliance order had

already been made or other legal proceedings instituted.

Change: All these requirements are removed; The only requirement is that the claim has not

prescribed; The prescription period is three years.

EMPLOYMENT EQUITY ACT AS AMENDED ON 1 AUG 2014

SECTION 6

PROHIBITION OF UNFAIR DISCRIMINATION

Reason

To expand the jurisdiction of the CCMA to arbitrate unfair discrimination disputes;

To assist lower income employees to have their disputes adjudicated in a cost effective manner.

SECTION 6

PROHIBITION OF UNFAIR DISCRIMINATION

Currently:

Section 6 of the EEA provides that it is unfair to discriminate against an employee on the grounds of:

Race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.

Change:Section 6 adds “or any other arbitrary ground”.

SECTION 11BURDEN OF PROOF

Before:

“Whenever unfair discrimination is alleged in terms of this Act, the employer against whom the allegation is made must establish that it is fair”.

Now…

SECTION 11WHO MUST PROVE UNFAIR DISCRIMINATION?

Listed ground,

employer to prove:

• Did not occur;• Rational, not unfair or

justifiable.

Arbitrary ground,

complainant to prove:

• Conduct not rational;• Conduct is discrimination; • Discrimination is unfair.

KEY CHANGES

KEY CHANGES

Section198A-D - Non-standard employees the same protection as permanent/full-time employees, except where genuine TES employees.

Section 21 - Organisational rights: There are two new categories to obtain organisational rights – most representative and significant interest.

Section 69 - Picketing may take place on property controlled by a third party.

Section 111 - Deregistered unions and employers’ organisations may not represent at the CCMA/BC pending an appeal, unless a court orders otherwise.

KEY CHANGES

Section 103A - A union or employer’s organisation may be placed under administration with a commissioner appointed as administrator.

Section 115 - The CCMA may provide assistance of an administrative nature to employees who earn less than the BCEA threshold to serve any notice or document in terms of the LRA.

Section143 - A certified award does not need to be made an Order of Court before contempt proceedings can be instituted.

KEY CHANGES

Section 150 - The CCMA may intervene in protracted disputes to try to resolve the dispute, where in the public interest, without consent of the parties.

Section 189A - Consulting party may not unreasonably refuse to extend the 60-day consulting period in section 189A facilitations.

Single and small business employees (up to nine) may choose to have retrenchment disputes arbitrated.

Section 213 - The definition of “service” is amended to include service by electronic mail and any other method of service specified by the Rules of the Commission.

KEY CHANGES

Section 74 of BCEA - The only barrier for claiming outstanding monies (other than severance pay) along with a dismissal dispute is prescription.

Section 6 of EEA - Equal pay for work of equal value is now specified as a form of unfair discrimination.

Section 10 of EEA – Employees under the threshold may choose arbitration by the CCMA of discrimination disputes.

KEY CHANGES

The ultimate purpose of the amendments is to ensure that our labour laws give effect to Constitutional rights, including the rights:

to fair labour practices;

to engage in collective bargaining;

to equality and protection from unfair discrimination.

CONTACT DETAILS

Belonging is betterWe are a non profit organization

Contact us at www.rmi.org.za

This presentation was presented by:

Marti van Renssen

IR Specialist – Northern Region

060 544 5395