Two labour laws were passed by the National Assembly yesterday (4 March 2014) and have been submitted to the President for assent. This means their promulgation is imminent. According to Aadil Patel, Director and Head of the Employment Practice at Cliffe Dekker Hofmeyr, these bills will have a significant impact on labour relations in South Africa and employers should have already prepared themselves for the changes proposed therein.
“The Employment Services Bill, 2012 (ESB) is a new government initiative which will set up a public 'employment services agency', and will also provide for the regulation and registration of private employment services agencies. These agencies are not labour brokers but institutions that will provide job seekers with certain services - such as matching job seekers with available work opportunities, registering job seekers, job vacancies and facilitating other employment opportunities.
“The Bill will also set up a nationwide database to monitor employment and assist with government's goal of creating more jobs, decent work and sustainable livelihoods. Employment of foreign nationals is further curtailed by the Bill, and several requirements will have to be met before such employment may take effect. The Minister of Labour may make regulations to facilitate the employment of foreign nationals” notes Patel.
He says the Labour Relations Amendment Bill (LRAB), No. 16D of 2012provides, amongst other things, more protection to non-standard employees such as fixed-term employees. The proposed amendment to s186(b) of the LRAB, for instance, provides that a failure by an employer to permanently retain an employee, who was engaged under a fixed term contract of employment and who reasonably expected to be permanently retained on the same or similar terms, constitutes a dismissal.
“In this regard, he explains that Temporary Employment Services (labour broker) employees will be subject to a maximum period of placement at a client, of three months, after which those employees will be deemed to be permanent employees of the labour broker's client. Typically however, such additional protections are limited to non-standard employees earning below an annual threshold published pursuant to the Basic Conditions of Employment Act.
“The amendments now make it possible for TES employees to be effectively represented by trade unions, with access to all of the organisational rights normally enjoyed by representative trade unions,” Patel explains.
“The amendments seek to achieve a balance that considers the commercial sustainability of businesses while protecting the interests of workers who earn less than R193 805.00 per annum. The underlying principle in the proposed s198B is justifiability. Employers must be able to justify fixing the duration of an employment contract,” says Patel.
Patel explains that the LRAB will also streamline the procedure to be followed when reviewing CCMA arbitration awards. It further discourages litigants from instituting review applications as a tactical ploy to frustrate or delay compliance with the award.
“The LRAB further impacts on recognition rights and collective agreements. In terms of the amendments, a commissioner determining a dispute about organisational rights will also have to consider the general composition of the workforce. This will include considering the extent to which employees are employed in non-standard forms of employment, such as through a temporary employment service provider or on a fixed-term contract,” he adds.