Employment Services Bill; Labour Relations Amendment Bill: deliberations on and adoption of some amendments proposed by the NCOP; Committee Oversight Reports on visits to Eastern an Northern Cape adopted

Meeting report

Employment Services Bill and Labour Relations Amendment Bill: Consideration of NCOP amendments: Deliberations on process
The Chairperson suggested that since the Committee did not have a quorum as yet, Members should nonetheless continue with to debate the proposals made by the National Council of Provinces (NCOP) for changes to the Employment Services Bill (ES Bill) and the Labour Relations Amendment Bill (LRA Bill).

Mr K Mubu (DA) expressed his disagreement with this suggestion, pointing out that when other Members who had not debated the issue arrived at the meeting, they would doubtless take the Committee back to the starting point and nullify all that had been discussed.

Mr H Hoosen (ID) agreed with Mr Mubu, and added that should there still not be a quorum by the end of the deliberations, then this meeting would have been a waste of time. He suggested that the meeting be postponed till later in the day or the following day when the other members would be available.       

Mr E Nyekemba (ANC) disagreed and pointed out that although there had not been a quorum at the previous two meetings, this had not debarred the Committee from making substantial decisions to move forward. There were no major disagreements or differences in opinion, other than clauses 9(c) and (d) of the Labour Relations Amendment Bill where Mr D Kganare (COPE) was insistent that the wording be retained. Other issues were raised by Mr Mubu, although there had been no debate on them. He suggested that it might well be that decisions were made by consensus, in which case there was no need to wait until a quorum was formed, as other Members arriving later would then be bound by the consensus reached.

The Chairperson added that it was his duty as Chairperson to control the meeting and not allow any Member arriving late to take the Committee back.

Mr Hoosen reiterated that he understood the argument presented by Mr Nyekemba, but felt that every discussion or decision made would merely be an informal conversation in the absence of a quorum.

The Chairperson reminded the Committee that the Portfolio Committee was not a new Committee and decisions could be made in-principle when sufficient consensus was reached, and must be respected by any Members who were not present when the consensus was reached.

Mr Hoosen insisted that whilst he agreed with that, the kind of decisions that were needed at this meeting nonetheless would require a quorum.

Mr D Kganare (COPE) proposed that, in the meanwhile, the few areas of disagreements could be isolated and debated upon, so that as soon as the meeting did quorate, cogent decisions would be made and the Committee could proceed to adopt those decisions.

The Chairperson asked that the Department of Labour (DOL) should recap the areas of disagreements and agreements on the Employment Services Bill.

Employment Services Bill (B38-2012]: presentation of C and D versions
Mr Sam Morotoba, Acting Director General, Department of Labour, gave a brief summary of the proposals made by the NCOP and the additional amendment suggested by the Committee for clauses 35 and 45. The amendments clarified the processes the Board must undertake to appoint an Acting Chief Executive Officer when the appointed Chief Executive Officer was unavailable, for whatever reason. He also mentioned the issue of cross referencing in Schedule 3, reminding Members that there had been a wrong referencing on line 3, which referred to only some subsections of section 14(1), and whilst the DOL had proposed that only section 14(1)(d) be referred to, Members had felt that any contravention of any of the subsections of section 14(1) should attract a penalty. After much debate on this issue, the State Law Adviser came up with a simpler suggestion, which replaced the wrong referencing with “Contravening section 14(1)(a) to (d)”.

Mr Mongameli Kweta, State Law Adviser, Office of the Chief State Law Adviser, drew the attention of the Committee to clause 54 and Schedule 2. He said that since the Bill would be hopefully passed this year,  the reference to the year “2012” should be substituted with “2014”.

Mr Kganare wanted an explanation on “work opportunity” as defined in the bill. He said that “Work opportunity” was defined as “a vacancy or opportunity for employment or work experience, self-employment or community service”.

Mr Morotoba explained that when defining work opportunity, the type of the job the work seeker was looking for was taken into cognisance. Work opportunities took different forms. A work opportunity could be a permanent job, or could be a placement in an environment where the work seeker was identified as an intern. In this case, the work seeker would be able to learn, but at the same time earn an allowance. The work seeker could also be assisted in entering into a cooperative where funding opportunities existed to fund self-employment. There were also a range of community services where community organisations needed volunteers with a range of skills.

Mr Nyekemba said that, having considered the amendments made to clauses 35 and 45 and Schedule 3 in the Employment Services Bill, as set out in the D version, and arising out of previous discussions and suggestions made by the members of the Committee, he felt that the Committee could now agree in principle on the changes, and agree to pass the Bill. He said that once there was a quorum, the Committee could then formally engage with the clause by clause adoption.

Mr Hoosen said that he was well aware that previously, some of his colleagues had raised some objections about some sections of the Bill, but he did not have any objections to the specific changes in clauses 35 and 45 and Schedule 3 of the Employment Services Bill.

Mr Mubu agreed. He said that it was disappointing for him that he had only joined this Committee after conclusion of the debates on the Bill, but he recorded that the DA had no objections to clauses 35, 45 and Schedule 3.

The Chairperson summarised that since parties present had recorded their consensus, the latest amendments and corrections would be agreed to in principle. The Chairperson suggested that the wording “as amended” in the C version should be changed to “as agreed to”.

Adoption of the NCOP proposals on the Employment Services Bill
When the meeting had a quorum, the Committee formally approved the NCOP’s proposals in relation to

- clause 35, on page 12, in line 22, to insert “or if the post of the Chief Executive Officer is vacant”
- clause 35, on page 12 in line 23, to insert or until the Board appoints a new Chief Executive Officer”
- clause 45, at page 14, in line 21, to insert “or if the post of the Chief Executive Officer is vacant”
- clause 45 at page 14, in line 23, to insert “or until the Minister appoints a new Chief Executive Officer”
- clause 54, at page 16, in line 37, to replace the reference to 2012 with a reference to 2014
- in Schedule 2, at page 18, line 12, to replace the reference to 2012 with a reference to 2014
- Schedule 3 was rejected in principle, and the new Schedule, with the references to section 14 correctly reflected, was adopted

None of the parties raised any objections, and the amendments were adopted unanimously.

Labour Relations Amendment Bill [B16– 2012]: C and D versions
Mr Tembinkosi Mkalipi, Acting Deputy Director General, Department of Labour, said that most of the corrections proposed were technical amendments. However, the main issue on which no consensus had been reached by this Committee was in relation to clause 9, on page 6, relating to the revised section 8A(12)(2)(c) and (d). This gave the Court the right to suspend a strike or picket. It was regarded by the NCOP as interfering with the constitutional right of workers to strike. The NCOP had proposed that both subclauses (c) and (d) be omitted. He read out those two paragraphs. Paragraph (c) referred to “in the case of a trade union, suspending the picket or strike” and he explained that this subclause gave the Labour Court the powers, if requested by the aggrieved party (who would be the employer), to suspend the picketing or strikes. Paragraph (d) read: “in the case of an employer, suspending the engagement of replacement labour even in circumstances in which this is not otherwise precluded by section 76 or suspending the lock-out”. He explained that this clause sought to cover the situation when the employer did not comply with the picketing rules, in which case the trade union could go to the Labour Court to prevent the companies from employing scab labour.

Mr E Nyekemba was Acting as Chairperson at this stage, and he said that Mr Mubu would also be given some opportunity to raise the issues that he had indicated, in a previous meeting, that he had with section 21 of the principal Labour Relations Act.

Mr Mubu thanked Mr Nyekemba but said he would speak to these when the Committee went through the clause by clause deliberations.

Ms L Makhubela-Mashele (ANC) said she would appreciate it if Mr Mubu could give the Committee an indication of the DA’s concerns, as this would help shape the arguments and indicate what exactly was seen as the issue.

Mr Kganare also preferred to hear the concerns now. He was worried that Mr Mubu would ambush the clause-by-clause deliberations if he introduced his objection then, and detract from Members applying their mind to the changes already proposed. He too asked for an indication of the DA’s objections to section 21(2) and (9).

Mr Nyekemba reminded the Committee that Mr Mubu had indicated in an earlier meeting that he would indicate voice the objections today.

Mr Kganare indicated that he had gone through the amended Bill and could not see any reference to section 21 of the LRA. He pointed out that if a particular section of an Act was not being amended by a Bill, then it was incorrect to raise it during the debates on the Bill. Taking this further, any Member would otherwise be able to raise any issues of concern throughout the principal Act although they had no reference to the Bill under discussion.

Ms Makhubela-Mashele said that she wanted clarification also on the references to the “clause by clause adoption”. The initial bill had been voted on, by this Committee, clause by clause, before it was forwarded to the NCOP. She thought that the process now was that only those clauses to which the NCOP had proposed amendments needed to be debated and decided upon.

The Chairperson responded to Mr Kganare that the Bill was not being reopened for discussion. He agreed that only the issues raised by the NCOP would be deliberated on, and this Committee could either approve or dis-approve the changes proposed.

Mr Nyekemba commented that although the Committee did not intend to start debates on the principal Act afresh, he still felt that, Mr Mubu having given notice of his intention to raise points, it was important to give him the opportunity to air his objections. It was also possible, however, that he could raise his points in the House. Mr Kganare had said that he still had some problems with the Bill itself but would be speaking to them in the House, as they were not reflected in the proposed amendments that were presently under consideration. All discussions in this meeting should be restricted to the amendments proposed by the NCOP.

The Chairperson referred the Committee back to clause 2, on page 3 of the LRA Bill, B version. He asked Members to give attention to the clause.

Mr Hoosen asked whether DOL could assist the Committee by summarising the NCOP proposals. This would help Members to understand the impact of the amendments proposed to the Bill.

Mr Mkalipi explained that the first proposal from the NCOP related to clause 2 of the LRA Bill (B version) and said that on line 3 of page 3, there was a suggestion that the reference to section 22(4) be corrected to a reference to section 22(7).

The next proposal also related to a wrong reference. On page 3, at line 22, there was an incorrect reference and the correction was to direct a Commissioner on how to deal with disputes in terms of subsection (7).

The NCOP had suggested an insertion of the phrase “of a client” in line 42. This would clarify that if a trade union exercised rights in a workplace “of a client” of the Temporary Employment Service (TES), then the rights would be Chapter III rights (organisational rights). The insertion was intended to remove any confusion as to the right of the worker, and where the worker could exercise his constitutional rights.

Turning to the proposals on clause 9 of the Bill, he referred Members to page 5 of the B version. The proposal by the DOL had been that in line 31, the words “any supporter” should be removed, so that only union members would be allowed to picket. However, the NCOP had proposed the deletion of the entire paragraph (a) so that the DOL proposals would effectively be nullified.

He then explained that on page 2, subclause 2(c) gave the Court the right to suspend a strike or picket, as outlined earlier. However, the NCOP suggested that this was interfering with the constitutional right of workers to strike. The NCOP had suggested that both (c) and (d) be removed, since (d) also referred to the right of the Labour Court to suspend the use of the replacement labour by an Employer.

He referred to page 6, line 18 and explained that the NCOP had proposed the removal of a reference to “48 hours” because the intention was to give the Court the flexibility to reduce all the time periods that were indicated in subsection (13), not only 48 hours.

In clause 37, at page 18 at line 27, another reference needed to be corrected. There had been reference incorrectly made to “4D” which dealt with the scope of bargaining councils and sectoral determinations, instead of to “4C” which dealt with employment contracts.

Other proposals were also made on clause 38. Firstly, the NCOP proposed the addition of another clause in relation to the part-time workers, to allow this provision only to be effective for the first three months after the Act came into operation. He explained that it would be seen as a transitional provision to avoid unnecessary disputes on the application of the section.

Secondly, there was a need to effect some renumbering, arising out of the addition of the new (4), to the remainder of the subsections in lines 27 and 40 on page 21.

Thirdly, another wrong reference needed to be corrected on page 21, at line 43. The new sections 198A(5), 198B(8) and 198C(3) dealt with employment on a fixed term and part-time basis, stating that these workers should not be treated any less favourably than full time workers, with different treatment only where justifiable. Section 198D(2) dealt with the matters to be taken into consideration in deciding on the fairness of the reasons.

Fourthly, at page 21, line 52, and exception on the time frames was being created. In line 52, the time frame was proposed at six months, instead of the 30 days that applied to normal disputes around dismissal.

The Chairperson noted that most of the changes proposed were of a technical and minor nature.

Mr Kganare said that his party’s only point of disagreement was with clauses 9(c) and (d), which the NCOP had proposed should be deleted because it was felt that any rulings of the Labour Court could be deemed to be an interference with the rights of both parties in the event of strikes and pickets. He insisted that the position of the NCOP was incorrect, and believed strongly that if any of the parties was in the wrong and was not respecting the rules around pickets, then the Labour Court must have the right to intervene. The Trade Unions must be able to approach the Court to stop employers from employing scab labour to undermine the employees on their picket lines, and the employers should also be able to approach the Courts to intervene should there be violent and destructive strikes by employees. He reiterated that there was nothing unconstitutional about approaching the Court.

Mr Mubu agreed partially with Mr Kganare on the Court’s intervention, but he added that he believed that employers should have the right to employ scab labour, to carry out the duties that striking workers refused to carry out.

Mr Mubu was also opposed to the issue of supporters being involved in strikes and he insisted that strikes and picketing must be limited to the members of the trade union.

Mr Hoosen expressed his concern also with allowing the members of the public to be involved in strikes. He said that in the event that strikes turned violent, it would not be easy to hold members of the trade union accountable for any damages caused by their supporters, especially if they were unable to control the supporters during a strike or picket. 

Mr Nyekemba emphasized his party’s support for the NCOP amendments. He replied that in the instance of violent strikes or picketing, the trade unions could be held responsible for any damages, because they had agreed to the terms and conditions of the picketing before they embarked on it.

The Chairperson urged the Committee to be mindful of the history of the country, the people and the future that was desired when laws were made.
 
Mr Kganare reiterated that the only issue of disagreement in relation to the NCOP proposals was the removal of clauses 9(c) and (d). He believed that the right to lock out and to strike was not an absolute right, and the Court must be given the power to intervene if need be. He also believed that the employee had the right to muster all the support needed in the event of a peaceful strike or picket. He did not believe that any employee would bring supporters to be a part of any violent strike or picket.

Mr Mubu said that whilst he took Mr Kganare’s point, it was not possible to predict whether there would be violence. It would be difficult to hold anyone responsible should a matter turn violent.

Mr Nyekemba replied that Mr Mubu should not raise the issue of accountability because if the rules of picketing were followed, then should there be violence it would be easy to hold the relevant party responsible.

Ms Suraya Williams, Principal State Law Adviser, Office of the Chief State Law Adviser, spoke to recent events in Cape Town, where shops were looted and cars were damaged during protest action. When a few of the shop owners had come together and sought to hold somebody liable for the damages cause, the Constitutional Court had ruled that the constitutional right to assemble and demonstrate was constitutionally protected only for so long as it was exercised peacefully. If, however, an organisation (such as a trade union) foresaw any damage as a result of the gathering, it either had the right to proceed with the gathering, in which case it would be held responsible for any damages arising from that gathering, or to cancel it.

Ms Makhubela-Mashele proposed that, for the sake of progress, the Committee should acknowledge the objections made by Mr Mubu to omit the clause around supporters, and record that all other parties were in support of the NCOP proposals to retain the clause around supporters.

Mr Kganare wanted to dispel the myth that only employees were violent in the instance of a dispute or strike. He reminded the Committee Members of instances in the past, when employers had triggered violence. He emphasized that employers could also be very ruthless towards their employees.

The Chairperson reminded the Committee of the time in history when agent provocateurs were used by employers to initiate trouble.

The Committee adjourned at this point to allow Members to apply their minds to the issue.

On resumption of the meeting, the Chairperson explained why the break had taken so long.

Mr Kganare expressed his annoyance at what he saw as lack of respect on the part of some ANC members. The adjournment was supposed to have been for 30 minutes only, yet only some ANC Members had returned, and others immediately excused themselves, making the other Members wait. He re-emphasised that he was still opposed to the proposed deletion of clauses 9(c) and (d).

The Chairperson apologised that he did not raise the issue stated by Mr Kganare when the meeting reconvened, and admitted that time management had always been an issue in this Committee, but this should not be seen as anything more sinister.

Mr Nyekemba stated the position of the ANC on clauses 9(c) and (d), and said that section 69 already covered the position. Since there could not be picketing without picketing rules, which applied to both parties, there should be agreements between the parties. Clause 9(c) referred to the position of the trade union in relation to pickets or strikes. Section 69 dealt with strikes. Section 76 of the principal Act also dealt with scab labour. If clauses 9(c) and (d) were retained, he agreed that they ran the risk of stating that the Labour Court would be dealing with what were essentially constitutional issues. He felt that the other sections of the Act as just quoted did cover the position adequately, and ensured that both parties could be held accountable should they breach the picketing arrangements.

Mr Kganare reiterated his stance on the matter, for clarity. First and foremost, the right to strike and the right to lock out were not absolute rights. Secondly, if people misbehaved during the strike or lockout, there must be consequences. Those consequences must be imposed by the Court, having reached an objective decision on the matters. For these reasons, his party did not believe that suspending the strike and suspending the recruitment of replacement labour should be decided upon by either the employers or the employee. If the two subsections were retained, they would not remove the right to strike, but clarified that if there was any misbehaviour by either party during the strike, consequences would attach.

Another ANC Member indicated his support for Mr Nyekemba’s submission and added that he strongly believed that since the picketing rules were duly signed by both the employer and the employee, these measures were enough to prevent misbehaviour from either of the parties, and this was preferable to going through involved court processes.

Mr Hoosen also reiterated the stance of his party on the amendments. He said that his party was not comfortable with the present wording of the clause that allowed for strikes or picketing to involve supporters or members of the public.

Mr Mubu indicated that his party held the same view as Mr Hoosen.

Mr Kganare repeated, on this particular point, that COPE was not opposed to supporters being included in strikes and picketing.

Ms Makhubela-Mashele restated the ANC’s position that it supported the two major proposals made by the NCOP – namely, that supporters should be allowed to be involved in the event of a strike or picket, and that clauses 9(c) and (d) should be omitted from the Bill.

Formal adoption of changes proposed
The Chairperson noted that the Members (having reached a quorum by this point) needed to formally adopt the clauses on which amendments had been proposed by the NCOP.

The proposal on clause 2, page 3. in line 3, to replace the reference to section 22(4) with the correct reference to “subsection (7)” was adopted.

The proposal on clause 2, page 3, line 42, to insert “of a client” after “workplace” was adopted.

In relation to clause 9, on page 5, line 31, the proposal to omit paragraph (a) was formally objected to by Mr Hoosen (ID) and Mr Mubu (DA), but the majority of Members agreed to the removal.

The NCOP proposals on clause 9, page 6, from line 2, to omit paragraphs (c) and (d), was adopted by the majority of Members (four from the ANC). However, objections were recorded from Mr Kganare (COPE), Mr Hoosen (ID) and Mr Mubu (DA).

The NCOP proposals on clause 9, at page 6, in relation to the omission of the reference to “48 hours” and to insert instead “that contemplated by subsection (13)” was adopted by the majority of Members from the ANC and COPE. The objections of Mr Mubu (DA) and Mr Hoosen (ID) were recorded.

The proposals in relation to clause 37, page 18, in line 27, to replace the incorrect reference to (4D) with a corrected reference to (4C) were adopted unanimously by Members.

In regard to clause 38, at page 21, after line 26, the proposal to insert a new subsection (4), reading: Subsection (3) applies, three months after the commencement of the Labour Relations Act, 2013, to part-time employees employed before the commencement of the Labour Relations Amendment Act, 2014” was adopted unanimously.

The amendments proposed to clause 38, page 21, in line 27, to correct the reference to subsection (4) with the replacement of a reference to subsection (5) was also adopted, without any objections.

The amendments proposed for clause 38, at page 21, in line 43, to correct the references by removing “198B(3)” and substituting “198B(8)” were moved for adoption with no objections.

Members also agreed to the changes proposed for clause 38, at page 21, in line 52, to insert, after the words “subsection (1)”, the phrase “other than a dispute about a dismissal in terms of section 198A(4)”.

The Chairperson noted the consensus on the change of date to reflect that the Act would bear a reference to 2014.

Adoption of Committee Reports on each of the Bills
The Chairperson read out the report of the day’s proceedings to the Committee, which was to the effect that having considered the proposed amendments submitted by the NCOP on the two Bills, the Portfolio Committee had agreed with the changes proposed, and made some minor technical amendments to some of the clauses.

Mr Kganare expressed the view that the Committee’s Report should reflect the objections made to each clause.

Ms Makhubela-Mashele disagreed and said that objections could be raised during the debate in the House by the parties, but the Report should only reflect the decisions made and the acceptance of the NCOP amendments.

Mr Kganare insisted that there had been a precedent on this matter, and the long debate that ensued on the clauses before they were amended must be noted in the Report that was to be presented to the House.

Ms Makhubela-Mashele wanted clarification, and said that if the objections were reflected in the Committee Report, this would suggest that there was an objection to the whole of the Labour Relations Amendment Bill. In fact, COPE had objected to one clause, and the ID and DA had recorded their objection to three clauses, but had agreed to the others.

Mr Mubu agreed with Mr Kganare, and said it was important that each party’s objection to any clause should be reflected in the Report, so that anyone reading this Report in the future would be able to see clearly that whilst the majority had adopted the clauses, there were objections made. He said that any minutes of the meeting must also clearly reflect the deliberations of the meeting.

Mr Hoosen was surprised to hear this kind of debate now. He added that since the objections he made were very clear, he saw no reason why they should not be reflected in the Committee’s Report to the House.

The Chairperson replied that the minutes of the meeting would indeed reflect that objections were raised, but in regard to the Report, he would like to consult further, and he suggested that he should report back to the Committee on the matter, and for the Committee then to formally adopt the Report on this Bill, on the following day.

The Portfolio Committee’s Report on the amendments made on the Employment Services Bill was adopted unanimously, but the Report on the Labour Relations Amendment Bill was postponed for adoption at a later meeting.

Draft report on Committee’s oversight visit to Eastern Cape Province, 28-31 January 2014 |
The draft Report (see attached document), which summarised the recommendations being made to the Minister following the Committee’s oversight visit to the Eastern Cape, was read out by the Chairperson to the Committee.

Mr Kganare pointed out that the issue of the decentralisation of pay-points was not captured in the Report.

The Chairperson replied that this would be included.

The Report was then adopted, subject to that amendment.

Draft report on Committee’s oversight visit to Northern Cape Province, 4 to 7 February 2014
The Chairperson read out the draft Report, containing the recommendations to the Minister, following the visit by the Committee to the Northern Cape (see attached report).

Members adopted the Report.

The meeting was adjourned.