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Labour relations bill rejected

LRA amendment on strike violence rejected….

ian ollisThe Portfolio Committee on Labour has rejected a Private Member’s Bill, the Labour Relations Amendment Bill proposed by Shadow Minister of Labour, Ian Ollis, to make provision for trade unions to be accountable in the event of violence, destruction of property and intimidation by union members during a protected strike.

The background to the Bill noted that “statistics from the protest action in the metal and engineering sector showed that in the first two weeks of that strike, 246 cases of intimidation, 50 violent ‘incidents’ and 85 cases of vandalism were recorded.

Duty to take reasonable steps

“The Bill seeks to provide a statutory duty on trade unions to take reasonable steps to prevent harm to persons and property within the Act”, said Ian Ollis MP, when tabling the Bill noting that his Bill had been stalled since 2010.

COSATU spokesperson Patrick Craven at the time responded with the statement that “COSATU will campaign relentlessly, thorough the alliance, in Parliament, at the Constitutional court and in the streets, to ensure that such a law is defeated.”\

Cabinet says we have the tools

Meanwhile, when President Zuma addressed the House in his State of Nation Address he condemned violence associated with strikes but said, “We have enough instruments in our labour relations machinery to resolve labour disputes.”

When presenting the Bill to Parliament in the current session, Ian Ollis said that the Bill could specify penalties, but also it envisaged a situation where the Labour Court is given permission to order parties, if a strike turned violent, to arbitration.

The Department of Labour (DoL) distanced itself from the Bill, Director-General, Thobile Lamati sayingThobile Lamati that these issues that were being addressed at NEDLAC level.

As a result of the meeting, a further Labour Portfolio Committee meeting heard the advice of Parliamentary Legal Adviser, Ms Noluthando Mpikashe, who told the Committee that although the Bill has no constitutional defects, existing legislation catered for all its contents.   She cited the Gatherings Act (Section 11) as a satisfactory answer and that the proposed Bill was pre-empting the NEDLAC deliberations.

Back to Marikana

Ollis responded that the Bill simply proposed that unions be held accountable for the conduct of their members during strike action. This will ensure not only accountability, but safety of the non-striking workers and added that “had the Bill been in place, lives would have been saved at Marikana.”

He complained “The Gatherings Act does not regulate any behaviour outside an approved gathering. The Bill before the Committee speaks to actions resulting from unapproved gatherings. The Bill also calls for the granting of permission to the Labour Court to force arbitration once a strike had turned violent,” he said.

He also complained in previous meetings that that the Opposition did not have a voice in NEDLAC. It could not give any input. The duty of the Opposition was to propose new ideas with regard to legislation, and the only way to reach NEDLAC was through the Portfolio Committee.

Bill voted out

Chairperson Yengeni rejected totally the claim that Opposition parties could not address NEDLAC directly. She said there were channels available to engage any entity of government.  She thanked Shadow Minister Ollis for his Bill and all the work that had gone into it but said “When the NEDLAC process is complete, the Committee will be the wiser”. Using its majority, ANC MPs rejected the Bill in its totality, the IFP abstaining.

Chairperson Lumka Yengeni stated afterwards, “The Bill is rejected by the Committee as it is not raising anything new. All its contents are captured in the Regulation of Gatherings Act,” she said. “The Department of Labour is on top of the situation”, she added.

Shadow Minister Ollis said, “The violence will continue. Therefore the current platform is inadequate.”

Other articles in this category or as background
Parliament delays process on Labour Relations Bill – ParlyReportSA
Muscle may be added to LRA – ParlyReportSA

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Labour Relations Act changes passed

LRA Bill through Parliament

Mildred OliphantThe Labour Relations Amendment (LRA) Bill has now been passed by the National Assembly, thus confirming the ambition of Minister of Labour, Mildred Oliphant, to have this and the Basic Conditions of Employment Amendment Bill (BCEA) as signed-off legislation before the last session of Parliament of the present government. The Bill received the concurrence from the NCOP, in this case the matter being considered a formality although the select committee involved called for submissions.

Two down, two to go and more to come

This leaves the two equity labour laws, the Employment Services Bill and the Employment Equity Amendment Bill, as part of four Bills approved by the Nedlac process and designed by the department of labour (DOL) to overhaul labour legislation in South Africa, to be finally approved in the last session.

The LRA changes in the meanwhile will enable legislation to address, DOL says, “a number of unfair labour practices” with minister Oliphant telling the House that the Bill now passed “will bring the provisions relating to child labour in line with international standards and will strengthen the mechanisms for enforcement of basic conditions of employment, including wages.”

Ballots and part timers

The new Act will alter the anchor Labour Relations Act (1995) to include a number of major amendments including the facilitation of the granting of organisational rights to trade unions that are “sufficiently representative” and, in addition, will require a trade union or any employers’ organisation to conduct a ballot prior to calling a strike or lock-out.

The new provisions will strengthen the status of picketing rules and agreements and in many instances the powers of the labour court are clarified. They will also determine and outline minimum service conditions deal with circumstances involving workers placed by temporary employment services, regulates on the employment of fixed-term contracts and deals with part-time employees earning below an earnings threshold.

UIF also involved

DOL has also tabled amendments to Unemployment Insurance Act to include foreign workers and public servants as well as to amend benefits by extending the period of payment of benefits to the contributor from eight months to twelve months and also extending the period in which a contributor can lodge a claim from the current six months to twelve months. Nomination of beneficiaries for death benefits will be possible and the fund itself will be allowed to finance its own employment promotion projects.

Under the occupational health aspect of DOL’s mandate, a Bill has been promised on the issue of noise pollution levels in the factory environment.

previous articles on this subject
http://parlyreportsa.co.za//cabinetpresidential/parliament-delays-process-on-labour-relations-bill/
http://parlyreportsa.co.za//education/employment-services-bill-will-promote-jobs-and-free-employment-services/
http://parlyreportsa.co.za//bee/dates-for-new-labour-law-amendments-outlined/

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Parliament delays process on Labour Relations Bill

Labour Relations Bill held up by the rule book….

In what might be just a technical delay on the passage of the Labour Relations Bill employed by the opposition party, Parliament now goes into winter recess without the last minute stand by ANC labour portfolio committee members on amendments to the Labour Relations Act being carried through into law at this point. For such an important debate in terms of national interest, it was firstly an embarrassment to the majority party but secondly a victory for parliamentary procedure and the application of due parliamentary process.

A late sitting on the last day of this session of Parliament, the second of 2013, there were insufficient MPs present to reach a quorum of 201 members voting, the ANC alliance having 266 votes available.    However, no more than 120 of the ANC arrived on the second occasions when the vote was put to the house, presumably having already left Cape Town, thus allowing opposition DA members to absent themselves to maintain a number lesser than the quorum and thus frustrate the Bill’s passage.

Clearly the lack ANC party discipline is evident, giving further rise to the argument that the ANC Chief Whip’s position may be under debate. The Bill now goes forward to the next session and will referred back to the portfolio committee on labour in the next session  for re-submission.

Points of argument

One of the key elements originally included in the Labour Relations Amendment Bill was the Nedlac-agreed principle, backed by the department of labour, that compulsory strike balloting procedures should be introduced. This was not accepted by the portfolio committee, chaired by ANC MP Mamagase Nchabeleng.

The opposition have also voted for but were over-ruled on sections proposed that allow unions and employers to have to debate on thresholds of representation for unions to gain a presence in a specific workplace or sector; the repeal of the section allowing for closed-shop agreements; and amendments to the section that allow for the extension of bargaining council agreements to parties that were not part of the bargaining process.

Looking back on 2013 so far

From an overall parliamentary viewpoint, the budget voting procedure having been attended to by President Zuma in the National Assembly and all 27 government departments, the various state owned utilities and financial development bodies have reported on their progress to Parliament on the third and final quarters of the last financial year.
In actual fact they are now busy spending the current financial year’s money and Parliament in the next session, starting mid-winter, will see progress towards the medium term budget review and the consequent oversight on the 2013/4 spend to date, with progress towards earlier stated targets.

Watching how the money goes

This is where the department of performance monitoring and evaluation under Collins Chabane of the President’s Office will be able to indicate more clearly to Parliament, charged with the task of oversight, how things are going. At this stage matters will only be made slightly easier for them with the very small amount of comparative figures to date since they took up office.

What did become evident during this last monitored session of Parliament was how massive the public service has become in South Africa and how it has grown.   In fact some economists give the opinion that any growth in the country is purely reflected by the fact that the public service in South Africa has grown in similar proportion and possibly by the same amount.

Presidential Review now to hand on SOE’s

The quantity of regulatory boards were hardly able to find reporting time in the parliamentary meeting schedule and the fact that the Presidential Review Committee on state owned entities has recommended that a further proposed council be structured so all SOEs are placed under one umbrella, thus creating one more entity to fund with salaries, is worrisome.

But the word “bloated” is too easy to use. Perhaps in these difficult times, as was found in China, it may be good to provide additional jobs and provide food in many homes in tough times but the problem for South Africa remains work ethic and performance, or translated into business terms – getting value for money.

Whilst Collins Chabane may be able to evaluate whole departments against targets set and call out numbers to record performance, the record of teachers not in their classrooms teaching and policeman not in the street policing, is depressing.

Jobs improvement the key

However, perhaps it is too early to make the call that things are not working. With so many global uncertainties working against South Africa and with so many infrastructure spend programmes in place and only beginning, the winter doom and gloom story is perhaps an easily spread infection.

However, without doubt it is the year in which it will become evident if South Africa has turned the corner on the jobs issue and whether its big spending programmes can be both handled and managed properly. The opposition maintain that with the introduction of the new Labour Relations Act amendments, the jobs situation will not improve.

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Deliberations reaching final stage on labour laws

Two days of parliamentary hearings and weeks of debate on the proposed Basic Conditions of Employment and the Labour Relations amendment bills were based  on the fact that the parliamentary portfolio committee on labour laws in no doubt that business in general, representative employment bodies and in many case government’s own utilities saw no benefit for the country as a whole if the new labour legislation, as it was originally drafted, had been passed in its original form.

The original issue that caused much of the furore was the labour broking issue but the draft Bills cover considerably more issues than just this matter alone, representing as they do, an overhaul on a number of contentious labour matters.

In well attended public hearings a considerable number of parties mostly with a commercial background complained that the Bills as they were originally proposed would in all likelihood set back South Africa’s investment programme; would probably also result in more jobs lost than gained and in many cases said the provisions were either counter-productive, unclearly defined and mostly unfair to employers, sufficiently so as to be legally unenforceable.

Now in mid-November, the Labour Relations amendments have reached a delicate stage where parliamentary legal teams are considering a final draft with most of the clauses now being agreed, particularly on aspects of workability and constitutionality. Their is a clear divide in discussions on the two issue: policy issues and legal issues and chairperson Elleck Nchabaleng (ANC) has been at pains to maintain this division as the committee has set about debate the legislation clause by clause. Adv Gordon and Adv Barbara Loots have been present at most meetings as members of the parliamentary legal team.

A major issue of recent has been wording in respect of the retrenchment of senior and higher paid employers and furthermore wording that would reflect a wish to unclog the CCMA from cases put before them. Another issue has been the matter where clauses have been so altered or new wording adopted that the sections concerned bear little relationship to the documents perused during public hearings.

The amendments to the Basic Conditions of Employment Amendment Bill  which was tabled in tandem seem have reached a more conclusive stage on the subject of committee deliberation.

Among the organisations making inputs originally were the SA Chamber of Commerce and Industry, the Mr Price Group, the Banking Association of SA, the SA Society for Labour Law and the Federation of Unions of SA and Cosatu.

The main thrust of Cosatu’s presentation was to inform parliamentarians that their official stance to the committee on labour broking had been revised and their insistence that the legislation before them have provisions banning labour broking in any form had been reviewed. Also, as a consequence, they were not objecting to the process of labour broking registration.

Prakashnee Govender, the Cosatu representative, however maintained that the “real employer”, not the broker, should assume all employment obligations for the worker contracted where the work was not temporary in nature.

Cosatu also  voiced the view that any trade unions should have to obtain majority support when balloting their members before embarking on industrial action, Govender stating that this constituted a “fundamental attack not only on the right to strike but also on collective bargaining” and that such amounted restrictive practices by employers.

Govender also stated that Cosatu opposed the wording that unions be held liable for damage caused during strikes but said that to allow pickets to be present on “third party premises” was welcomed.

American Chamber of Commerce who were at first was disallowed by the chair to present in their slotted programme time but subsequently allowed to present to MPs after consideration by the chair, made it quite clear that Amcham saw a great number of unintended and unfortunate consequences resulting from the Bills and called for a regulatory impact assessment prior to any such amendments. Amcham’s presentation was eventually made on a later date by a representative of General Motors in SA.

They clearly felt that it was not in South Africa’s economic interests to pursue the Bills as they stood.

AHI supported the idea provided for in the Labour Relations Act amendments of allowing balloting before engaging in a strike but noted that in their experience it would rarely be properly supervised, putting the validity of such an exercise in jeopardy. Other presentations noted that civil strife could follow such procedures as suggested.

AHI was particularly concerned that the proposals would give no benefit to small business, in fact claimed “that since the announcement of these amendments, more than 440,000 small businesses had closed their doors”.

Like most presentations, the need for some amendments were not doubted by various organisations and bodies. Most seemed to support the objectives in a broader sense but such issues as prohibition of sub-contracting; issues surrounding part-time employees becoming full time employees by virtue of the passage of time; and retrenchment conditions on higher income employees were focused upon as being counter-productive.

These were rejected as either not making economic sense, being badly worded, confusing, or, as some submissions stated, having negative or opposite effects on employment conditions. Most submissions rejected whole clauses in totality but few supplied alternative wording.

Now that two months of deliberations have taken place within the Portfolio Committee on Labour, the belief is that final drafts could be put before the National Assembly before the end of the current parliamentary session. Representing the Democratic Alliance on the labour portfolio committee is Sej Motau.

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Dates for new labour law amendments outlined

A date of November 2012 has been given as the conclusion date for the NEDLAC debate on the trio of labour law amendment bills currently before them and which includes the now much-discussed labour law touching upon labour broking. Also included in the discussions are also the Public Employment Services Bill and the Employment Equity Amendment Bill.

The date was given by minister Mildred Oliphant when introducing her department’s strategic plan for 2012 to the relevant portfolio committee last week.

The three bills, all further amendments to their own anchor legislation being dealt with first are the Employment Equity Amendment Bill; the Basic Conditions of Employment Amendment Bill and the Labour Relations Amendment Bill.

The department of labour (DOL) is in the process of presenting all three Bills to cabinet and then tabling in Parliament.

Taking into account parliamentary public hearings on all three, which will probably be a lengthy process, the middle of July 2013 would be a probable date by which such legislation as finally amended and gets put to the vote.

Amongst the principles of the new legislation as promoted by Minister Oliphant and DOL generally were her department’s objectives of promoting sound and responsive legislation, flexibility of the labour market;  promoting as always “decent employment” but not at the same time compromising a favourable climate for investment, she said.

Insofar as the contentious Labour Relations Amendment Bill is concerned, minister Oliphant said that current proposals were that employers would have ensure that an employer treats a part-time employee generally not less favourably than a comparable full-time employee doing the same work, unless there is a justifiable reason for different treatment.

A similar expression with the word “justifiable” was used by minister Oliphant when describing an employee on a fixed term contract for longer than six months who must be treated “on the whole” not less favourably than an employee employed on an indefinite basis.

She also referred to the issue where an employee has been in service for a period exceeding 24 months who, according to the draft as it stood at present, will be paid severance “subject to the terms of any applicable collective  agreement,” one week’s remuneration for each completed year of his or her contract.

The issue of the registration of labour brokers remains an issue of political rhetoric, statements from government ministers and the President varying according to the audience.

It is understood that discussions at NEDLAC on the remaining two Bills have not begun.

BUSA expressed its dismay regard the process now nearly complete before matters go for parliamentary process, saying this will hardly correct the inherent defects in the changes which “will destroy economic growth”.

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