On 1 January 2015 the Labour Relations Amendment Act (No.6 of 2014) (LRAA) will take effect, with the exception of s37(c), and South African businesses will have to comply with the new obligations created in the the Act. The LRAA signals a move by government to streamline the country’s labour environment and will require that South African businesses adjust the way they have traditionally employed and managed staff in their organisations.
Some key features of the LRAA:
The LRAA responds to, among other things, the increased informalisation of labour and also seeks to ensure that vulnerable groups of employees receive adequate protection. Some of the most important amendments introduced by the LRAA relates to employees employed through a Temporary Employment Service ("TES") – also known as labour brokers - and fixed term employees. These employees will, in future, enjoy far greater protection than what is currently available to them, with concomitant limitations placed on employers to utilise such employment structures. The new protections are limited in some respects, for instance, they only apply to persons earning below a statutory income threshold (currently R205 433.30 per annum), and in the case of fixed term employees, some smaller and start-up employers may be exempted. The amendments are primarily intended to limit the use of these employees to true short term contracts (three months or less; to replace another employee who is temporarily absent; or in categories of employment lawfully characterised as suitable for such employees).
The underlying principle in the proposed s198B is justifiability. Employers must be able to justify fixing the duration of an employment contract. Failure to abide by the limitations will result in the employees becoming permanent employees (fixed term employees), or being deemed to be employees of the client (TES employees).
The LRAA also streamlines 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 LRAA amends s145(5) of the Labour Relations Act (LRA), to provide that a person who institutes a review application must arrange for the matter to be heard by the Labour Court within six months of commencing proceedings. However, the Court has been given the power
to condone a failure to comply with this provision on good cause shown. In terms of s145(6), judges will be required to hand down judgment in review applications, "as soon as reasonably possible". This provision reiterates the need for the speedy resolution of review applications. If review applications are to be finalised speedily, litigants will have to adhere to the timelines provided for pleadings.
Collective labour law will also be materially affected by the amendments introduced by the LRAA. These amendments are aimed at promoting the inclusion of non-standard employees in the collective bargaining framework and expanding the application of organisational rights. This will effectively expand the employee pool in a workplace for purposes of procuring organisational rights. The amendments will have the effect of creating a more inclusive collective bargaining arena in the workplace. Hopefully, this will lessen the need felt by smaller unions to use industrial action as the only route to obtain organisational rights previously ordained for more representative unions only. In the current climate of violent strike action, any proposal that could result in the need to use less strike action should probably be welcomed.
The LRA further provides that employees have the right to picket at a place controlled by someone other than their employer, provided that person has a say in the establishment of the picketing rules.
Most South African businesses have already adapted the manner in which they will be doing business in anticipation of the proposed amendments.
More information regarding this Act can be found in the Employment practice guideline to the legislation, which can be found here: Employment Guide: More information regarding this Act can be found in the Employment practice guideline to the legislation, which can be found here: Employment Guide: http://www.cliffedekkerhofmeyr.com/export/sites/cdh/en/legal/practice-areas/downloads/Employment-Guide-to-the-Amendments-2014.pdf