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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