Richard – SUMMARY OF LRA AMENDMENTS – JUNE 2014

Report
SUMMARY OF
AMENDMENTS TO THE
LABOUR RELATIONS ACT 66
OF 1995 (“LRA”)
Prepared by: Richard Pemberton
A-TYPICAL CONTRACTS : S 198 A - D
INTRODUCTION
These sections contain arguably the most important amendments that have the greatest impact on
employment law.
Three important areas of employment/contracts are identified and they are :•
•
•
Temporary employment services
Fixed period contracts
Part time employees
These amendments are aimed at stopping alleged abuse of employees who have been employed in
these areas prior to the amendments.
The cost implications are significant for employers.
Threshold
These types of employment/contracts are subject to an annual remuneration threshold i.e. they only
apply to employees who earn less than the current threshold which is R205 433.50.
TEMPORARY EMPLOYMENT SERVICES (TES) (Section 198 A)
SS 1:
Definition
Temporary Service in terms of this section means an employee:•
•
•
who works for a client not exceeding three months
who works as a substitute for an employee temporarily absent
whose job is covered by a collective agreement made by a bargaining council or a
sectoral determination or notice by the Minister (cross reference SS6)
SS 2:
Provides for the threshold exclusion
SS 3:
If an employee does not fall within the definition the
employee will be deemed to be an employee of the client
(SS 3b). It also means that after 3 months an employee is
deemed to be an employee of the client.
SS 4:
Termination to avoid the consequences of this section
constitutes a dismissal (X ref Section 198 D(3) – these
disputes go to the Labour Court). Employee must prove it was
unfair. Clearly unfair if to avoid this section.
SS 5:
An employee deemed to be an employee of the client must be
treated no less favourably than any employee of the client performing the same or similar work.
SS 9:
Rights under this section accrue three months after the
commencement of the amendment act.
FIXED TERM CONTRACTS (“FTC”) (Section 198 B)
SS 1:
Definition of an FTC means:A contract that terminates on :• An occurrence of a specified event
• Completion of a specified task/project
• A fixed date (other than a retirement date)
SS 2:
Exclusions
• Earnings above the threshold
• Employ less than 10 employees
• If in operation for less than 2 years and employs less than 50
employees
• The FTC is permitted by statute or a sectoral determination or a
collective agreement
SS 3:
Further exclusions
• Successive contracts if nature of the work limited or for a defined
duration
• Other justifiable reason
SS 4: Justifiable reasons
•
•
•
•
•
•
•
•
•
Replacing temporary absent employee
Temporary increase in volume of work (not beyond twelve months)
Student/graduate training
Exclusively employed on a specified project with a defined duration
A non-citizen employed on a work permit for a defined period
Seasonal work
Official public works scheme
Job funded externally for limited period
Post retirement age
SS 6: FTC
• Must be in writing
• Must state the reason for it
SS 7:
Onus to prove justifiable reason on the employer
SS 8 (a):
If FTC exceeds three months it becomes a permanent
contract on the same terms for same or similar work
[can have different terms if justifiable x-ref 198D(2)]
SS 8(b):
Applies three months after coming into force of the
section
SS 9:
Equal opportunity provisions for vacancies
SS 10 & 11:
Rights for severance pay after 24 months
PART – TIME EMPLOYMENT (Section 198 C)
SS 1(a) :
Definition:
Remunerated wholly or in part by reference to the time the employee
works who works less hours than a comparable full time employee
SS 1(b):
Definition of a comparable full time employee
SS 2:
Exclusions:
• Earnings above the threshold
• Less than 10 employees or less than 50 employees for a business
in operation for less than two years – but not an employer who
has more than one business or the business has been formed by
a divisional dissolution of an existing business
• Employee who works less than 24 hours per month
• Employee in first three months of continuous employment
SS 3(a):
After three months the employee must be treated
on not less favourable terms than an comparable
fulltime employee
SS 3(b):
Employee must be given access to training and
skills development
SS 4:
Sub section applies 3 months after the coming into
force of the section
SS 5:
Access to vacancies
SS 6:
Identifying comparable employees
5. General (Section 198 D)
SS 1:
Interpretation disputes referred to CCMA
SS 2:
Justifiable reasons to treat differently:-
•
•
•
•
SS 3
SS 4
SS 5
SS6
Seniority, experience, length of service
Merit
Quality and Quantity of work
Any other similar criteria
Constitute dispute resolution framework – referral to CCMA or
Bargaining Council within 6 months. If unresolved to arbitration
within 90 days.
ORGANISATIONAL RIGHTS:
ARBITRATION OF ORGANISATIONAL
RIGHTS DISPUTES : SS21 and 22
•
•
A registered trade union which does not have as members the majority of employees in a
workplace may be granted:
–
the right to elect shop stewards(s14) by the CCMA in arbitration proceedings if it is entitled to
the right of access(s12), deduction of union subscriptions(s13), leave for union office bearers(s15)
and no other trade union enjoys this right.
–
the right to disclosure of information(s16) by the CCMA in arbitration proceedings if it is
entitled to all the rights relating to access(s12), deduction of union subscription(s13), shop
stewards(s14), leave for trade union office bearers(s15) and no other trade union enjoys this right.
A trade union or two or more registered trade unions acting jointly may, in CCMA arbitration
proceedings, be granted the right of access to the workplace(s12), deduction of trade union
subscriptions(s13) or leave for trade union office bearers(s15) even if they do not meet a threshold
established by a collective agreement provided that
–
–
–
all the parties to the collective agreement have been given an opportunity to participate in the
arbitration proceedings; and
the union or unions jointly represent a significant interest in the workplace; or
the union or unions jointly represent a substantial number of employees at the workplace.
•
A trade union may exercise organisational rights in relation to
employees of a temporary employment service at the workplace of the
client(s) and/or the temporary employment service.
•
An arbitration award in respect of organisational right disputes may be
made binding on an employer and
– A client of the temporary employment service which is the employer
of the employees to whom the award applies;
– Any person who controls access to the workplace to which the
award applies if that person has been given an opportunity to
participate in the arbitration proceedings(a landlord and possibly,
a security company contracted to control access).
BARGAINING COUNCILS:
EXTENSION OF COLLECTIVE
AGREEMENTS TO NON-PARTIES: S 32
•
The following are additional requirements to be met before the Minister can
extend a collective agreement concluded in a bargaining council to nonparties:
– The bargaining council must have in place effective procedures to decide on
exemptions applications within 30 days
– The collective agreement makes provision for appeals against a refusal to exempt or
withdrawal of an exemption to be heard and decided within 30 days of bargaining
council
– The Minister must publish a notice in the Government Gazette stating that she has
received an application, where copies thereof may be inspected or obtained and
providing a period of not less than 21 days for comment by interested parties; and
– The Minister must take into account comments submitted by interested parties before
deciding whether or not to extend the collective agreement.
•
For purposes of determining representativity of the parties to a collective agreement that is
to be extended, the Minister may take into account the composition of the workforce in the
sector, including the extent to which there are
–
–
–
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employees assigned to work by temporary employment services,
employees employed on fixed term contracts,
part-time employees or
employees in other categories of non-standard employment
•
A bargaining council must supply the registrar with information about the representativity of
its constituents which will be used for purposes of, inter alia, s 32
•
A bargaining council may by a collective agreement provide for the payment of a dispute
resolution levy and payment of a fee for arbitrations for which the CCMA may also charge a
fee(s188A arbitrations)
•
Representatives, officials and office bearers of employers organisations and trade union
parties to a collective agreement that has been extended to non-parties by the Minister
cannot be members of the appeals body that considers exemption applications or
participate in the proceedings.
STRIKES & LOCK OUTS: S 65
• S 65 is amended to prohibit strikes and lock outs in respect of any
issue in dispute that a party has the right to refer to arbitration or the
Labour Court in terms of the LRA or any other employment law.
• The addition of “any other employment law” will have the effect of
prohibiting strikes and lock outs in respect of arbitrable issues in
dispute arising from the BCEA, UIF Act, EEA, OHSA, Skills
Development Act, COID
• Strikes and lock outs are prohibited in respect of issues in dispute
regulated by a determination under Chapter 8 of the BCEA,
repealing reference to the Wage Act.
NOTE: The original amendment introducing a compulsory secret strike
ballot has been deleted = a trade off to permit labour brokers
to a limited extent.
PICKETS: S 69
NOTE: Initially the amendments provided for the deletion of
“supporters” in SS(1). This was amended by the National
Council of Provinces due to pressure from the unions and has
been reintroduced.
• The CCMA may authorise a picket on the property of third parties
provided such parties have been given an opportunity to make
representations to the CCMA. Third parties will include:
– Landlords where the employer is a tenant
– Landlords in shopping malls and factory estates
– Municipalities
•
The Labour Court is given the power to issue urgent interim relief in respect
of pickets, including orders(section 69(12):
– To comply with picketing rules
– Varying picket rules or agreements
– Note: first approved amendment provided for power to –
•
•
Suspend a picket
Suspend a strike
This was deleted the NCOP in its amendments (pressure from the unions)
– Note: first approved amendments
Prohibiting an employer from engaging replacement labour during a strike even though
the employer is not prohibited from doing so by section 76 of the Act
•
A party seeking urgent relief in terms of section 69(12):
– must have referred a dispute to the CCMA; and
– must also give 48 hours notice of the application to the other party.
ESSENTIAL SERVICES: SECTIONS 70,
70A TO 70 F
•
The ESC is now to be established under the auspices of the CCMA, resolving
the issue dealt with by the courts in Eskom v Num and Others (essential
Services Committee Intervening) (2011) 32 ILJ 2904 (SCA).
•
The Minister appoints members of the ESC, which may be chaired by a senior
commissioner and the deputy chairperson must be a senior commissioner.
•
The Minister must appoint two representatives each for organised labour,
business and government at NEDLAC as nominated by the parties
•
For purposes of considering disputes, the ESC may establish a panel of three or
five members, to be presided over by its chairperson or deputy or a senior
commissioner trained for that purpose
• The ESC may
– Monitor compliance with essential services
determinations, minimum services agreements
agreements,
– Promote effective dispute resolution within essential services
– Develop guidelines for the negotiation of minimum services
agreements
– On its own initiative or at the reasonable request of a third
parties, investigate whether or not a service or part thereof must
be declared an essential service
– Establish a panel to conduct an investigation at the request of a
bargaining council.
•
The powers and duties of the ESC panel include the following:
– Conduct an investigation into whether or not a service is an essential service;
– determine whether or not to designate the whole or a part of that service as an
essential service;
– determine disputes as to whether or not the whole or a part of any service falls within
the scope of a designated essential service;
– determine whether or not the whole or a part of any service is a maintenance service;
– ratify a collective agreement that provides for the maintenance of minimum services in
a service designated as an essential service;
– determine, in accordance with the provisions of this Act, the minimum services
required to be maintained in the service that is designated as an essential service;
– vary or cancel a designation of a service as an essential service
NOTE: Minimum services i.t.o. Section 72 also revamped.
REVIEWS OF ARBITRATION
AWARDS : S145
Designed to speed them up and require security from the Applicant to prevent
frivolous reviews
•
Must apply for set down within 6 months of delivery of the application;
•
Arbitration award not suspended unless security put up
Security :– Reinstatement orders – 24 months remuneration
– Compensation orders – the equivalent of the compensation ordered
•
Only applies to reviews brought after the commencement of the
amendment Act
TRADE UNIONS AND EMPLOYERS’
ORGANISATIONS : S 103A
• The Labour Court may appoint an administrator to administer
the affairs of a trade union or employer’s organisation on
application by the union or employer’s organisation or the
registrar of trade unions.
• This may be done if the trade union or employers organisation
is not fulfilling its functions or is mismanaging its finances.
CONCILIATION IN THE PUBLIC
INTEREST : S 150
•
The Director of the CCMA may appoint a commissioner to conciliate a dispute,
whether or not that dispute has been referred to the CCMA or bargaining council for
conciliation.
•
Parties may consent to the appointment of a commissioner under this section or
•
The director of the CCMA may appoint a conciliator even if the parties do not consent
to the appointment if he/she believes that it is in the public interest to do so
•
The director of the CCMA must, before appointing a conciliator, consult the parties
first and the bargaining council with jurisdiction, if applicable
•
The director may also appoint one person each from a list provided by organised
labour and business representatives on the CCMA governing body respectively
•
The right to strike or lock-out is not affected by the appointment of the conciliator
unless the parties to the dispute agree otherwise.
EXPECTATION OF RENEWAL OF FIXED
PERIOD CONTRACTS: S 186
Additional provisions introducing expectation
of renewal indefinitely (i.e. permanent
employment)
AUTOMATICALLY UNFAIR
DISMISSALS : S 187
•
Section 187(1)(c) of the LRA Amendment Act of 2013 has been amended to provide that
the dismissal of an employee is automatically unfair if the reason for the dismissal is
“a refusal by employees to accept a demand in respect of any matter of mutual
interest between them and their employer.”
•
The purpose of the amendment is to neutralise the decision in NUMSA v Fry Metals (2005)
26 ILJ 689 (SCA) and related judgments which permitted an employer to dismiss
employees who refuse to accept changes to conditions of employment if such changes
were necessitated by the employer’s operational requirements.
•
After the amendment, all such dismissals, at least where they involve a refusal by more
than one employee to agree to changes to employment conditions, will be automatically
unfair, even if the reason is related to the operational requirements of the employer.
•
Thus dismissals can no longer be used to effect workplace changes
LARGE SCALE OPERATIONAL
TERMINATIONS : S 189A
•
Section 189A has also been amended by the addition of s 189A(2)(d) which provides
that a consulting party may not unreasonably refuse a request by another party for an
extension of the consultation period.
•
The amendment introduced by s 189A(2)(d) does not, however, provide an explicit
mechanism to compel a party to continue consulting, nor does it spell out the
consequences for unreasonably refusing to agree to an extension.
•
The Labour Court will presumably be able to issue an order on an urgent basis
extending the consultation period at the request of a party where the other party has
unreasonably refused to agree to a request for an extension of the consultation
period.
•
The test whether or not to agree to a request to extend the consultation period should
be objective.
Garlicke & Bousfield Inc.
7 Torsvale Crescent
La Lucia Ridge Office Estate
Umhlanga Rocks
Tel (031) 570 5321
Fax 086 513 9843
E-mail: [email protected] / [email protected]
Please feel free to contact us for any queries.

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