Basic Conditions of Employment Amendment Bill [B15B-2012]; Labour Relations Amendment Bill [B 16B-2012]: deliberations

Meeting report

Introduction by Acting Chairperson
The Chairperson noted that this was the third meeting which the Committee was holding on the Basic Conditions of Employment Amendment Bill [B15B - 2012] and the Labour Relations Amendment Bill [B16B - 2012]. The public had been consulted through the invitation for public submissions and the Committee had dealt with some submissions but two more submissions had been received from Transnet and Business Unity South Africa (BUSA). The Department of Labour would respond to those submissions and indicating proposed amendments from the Department.

Proposed Amendments to Labour Relations Amendment Bill
The Chief Director: Labour Relations from the Department of Labour, Mr Thembinkosi Mkalipi, told the Committee that he was going to take them through some of the amendments which the Department proposed should be made to the Bill. The Department had discussed the amendments with the Parliamentary Legal Advisers and the State Law Advisers. These changes to the Bill consisted of technical and grammatical changes and not content changes. Many of the changes were due to wrong references.

Clause 2
On line 3 of Clause 2(b), the Department proposed that the reference “section 22(4)” should be replaced with the reference “section 22(7)”.

On line 22 of Clause 2(b), the reference “section 22(4)” should be replaced with the reference “section 22(7)”.

On line 40 of Clause 2(c), the Department proposed that the phrase “of a client” should be inserted after the word “workplace”.

Clause 9
On line 18 of Clause 9(d)(c), the phrase “48 hours” should be removed and replaced with the phrase “that referred to by Section 13”.

Clause 37
On line 27 of Clause 37(4Ea), the reference “4D” should be replaced with the reference “4C”.

Clause 38
On line 27 of Section 198C(3), the Department proposed that just after the end of sub-section 3(b), a provision should be added to indicate when the provision of 3 months for temporal workers starts so that part time workers could be protected. After the insertion of the provision, the numbering of the entire Clause would have to be done to accommodate the addition.

On line 43 of Section 198D(2), the reference “198B(3)” should be replaced with the reference “198B(4)”.

On line 52 of Section 198D(3), the phrase “other than a dispute of dismissal in terms Section 198(4)” should be inserted after the reference subsection (1).

Mr Mkalipi told the Committee that these were all the technical changes which the Department of Labour was presenting to the Committee on the Labour Relations Amendment Bill. He emphasised that these changes did not change the content of the Bill but were aimed at ensuring correct referencing in the Bill.  

Discussion
The Chairperson thanked the Department of Labour for the proposals and asked if Members had any questions of clarification. She reminded Members that any questions had to focus only on these technical changes which had been proposed.

Questions
Mr H Groenewald (DA, North West) asked for a further explanation on Section 198(4). He was not satisfied with the explanation given by Mr Mkalipi.

Mr M Jacobs (ANC, Free State) expressed concern about the use of the word “may” in Clause 3(5). The use of the word “may” was ambiguous.

On Section 70E(8)(b), he was concerned that the grants, donations and bequests could lead to corruption and fraud. He would have been comfortable if the working capital came from Parliament. The including of grants and donations could lead to corruption.

On the regulations for the essential services committee in Section 70F, did a complainant have the right to appeal and where could this appeal be made?

An arbitration award was binding like an order of the labour court. In a situation where a complainant was not satisfied with the award, to where could he take the matter? Was it the High Court, Labour Court, Court of Appeal or Constitutional Court? These processes involved a lot of money for poor and working class citizens.

The Bill provided that the ruling of the arbitrator in an inquiry had the same status as an arbitration award. Was such a ruling equally binding as the order of a labour court?

Mr Jacobs asked for a further explanation of Clause 34(d). In many of these lengthy processes, he was worried about the fees which were to be paid by the employees. Did the Department consider the financial burden of employees when making the amendments?

The Chairperson remarked that certain actions of an employer could result in the actions being seen as a dismissal as per Section 198A(4). Section 198D(3) dealt with the referral of a dispute to the Commission or a bargaining council. Why was Section 198A(4) an exception to this procedure and to where would the dismissal in 198A(4) be referred? The Chairperson asked for the difference in the dispute process between 198D(3) and 198A(4).

Responses
Mr Mkalipi replied that Section 198A(4) referred to how disputes of abuse of the law could be dealt with. He read out the section and further explained that it dealt with what were temporal employment services and it stated that if an employee worked for more than three months he was no longer temporal but deemed to be a permanent employee. If the employee was a substitute, he was allowed to work for more than 3 months. If an employee went to the mountain for cultural reasons and the employer wanted to replace the employee, a replacement could be employed for more than three months and the replacement would still be temporal. This was what the section was providing for. It simply stated that a temporal worker could only work for three months unless he was replacing an employee who was sick or unavailable.

Another dimension to the section provided that if the employment was outside the exceptions explained above, then the worker was deemed to be employed by the employer and not the labour broker. If a worker was not a replacement and worked for more than three months, then he was deemed to be an employee of the employer. Employers always tried to maximise any loopholes in the law so they often entered into contracts to subvert the provisions of the law. Thus, the section further provided that if the employer let go of a worker to take up a different worker from the same labour broker, such action was going to be against the law. It did not matter if the worker was dismissed because the labour broker lost the contract with the employer. The objective was also to ensure that employers did not end contracts with labour brokers in order to dismiss workers.

Mr Mkalipi replied that in the use of the word “may” in Clause 3(5), it was important to understand that the word “may” was the terminology used in the law to handle such circumstances. The use of “may” did not mean that the clause and its consequences were any weaker. An arbitration award always had a particular legal status except for advisory arbitrations. All arbitration awards were binding on those who were cited.

On the issue of grants and donations, the social service committee was funded through the government fiscus and the money was channeled through the CCMA. The issue at NEDLAC was if there were European Union grants given to deal with social services, it could be some of the foundation which existed. That was the only reason why grants and donations were included. Obviously, the grants and donations would come from country-to-country arrangements. It was included so that if there was a need, then it was provided for by the law. Presently, all the funding from the social service committee was coming through the fiscus. There were currently no grants and donations. 

In relation to where appeals were made against the social service committee, the appeals were made to the labour court. If the social service committee makes a decision, a dissatisfied employer or employee could appeal to the labour court for a review of such a decision. If after the labour court, the complainant was still not satisfied, they could proceed to the labour appeal court an even up to the constitutional court. There was no internal process of appeal because the decisions of the social service committee were the same as an award of the CCMA. The Constitutional Court had made it clear that issues that were dealt with in the Labour Relations Act had to go to the Labour Court, from there to the Labour Appeal Court and only after that could it be taken to the Constitutional Court. The route to the constitutional court on labour matters was through the labour court and the labour appeal court.

With regards to the status of an arbitration ruling, it was clear that a ruling of an arbitration had the same status as an arbitration award which in turn had the same status as a labour court order. The purpose of this was to safeguard the integrity of CCMA proceedings. This was to prevent complainants or employers from abandoning CCMA processes and going to the labour court after receiving an unfavorable ruling or award. The CCMA had to finalise its process and only then could a challenge be made at the labour court.

On Clause 34(d), the issue of the notice, it was worth noting that the Department was trying to clarify the confusion about when a dismissal takes place. If an employee was given a notice of dismissal indicating that the last day of work was 31 October, then this 31 October was the date of dismissal. It was important to remember that an employee had only 30 days to get the CCMA to hear its case. This clause was clarifying this principle. If there was an argument on whether the complainant was within 30 days or not, there had to be a reference point. If an employer was dismissed without a notice period, then the date of dismissal was a firm date. This happened mostly in cases of theft where there was immediate dismissal. Clause 34(d) was simply trying to clarify what a date of dismissal was so that there was no confusion when there was the need to count the days before the matter could be taken to the CCMA.

With regards to assisting workers in meeting court fees. Unfortunately, assistance in court for citizens was done by the Legal Aid Board. There were no clear processes in the Legal Aid Board as some provincial offices did provide assistance for dismissal and some did not – but over and above all this, this terrain was controlled by the Legal Aid Board. The Department had started to consider having a discussion with the Legal Aid Board to see what could be done about workers who were dismissed. Workers who belonged to unions were assisted by the unions but this was not the case for workers who did not belong to a union. Another bigger issue was the enforcement of CCMA decisions and awards. Employers often ignored awards and it was the burden of the employee to take the award to the Sheriff of the Court to start attachment proceedings. The Sheriffs often asked for deposits but employees hardly had such amounts of money as they had been dismissed and already spent so much money on the CCMA case. This was an area which had to be looked into. It was important for the Department to create a fund which supported workers in the enforcement of awards. The CCMA could also include in the award the cost of enforcement so that the defaulting employer would bear the costs of the collection. After the collection, the costs could be returned to the fund. In brief, the Department did not pay for any fees at the CCMA or labour court and the workers paid for themselves. Another way out was for the workers to join trade unions so that in case of a dismissal, the unions would pay for their fees. 

Mr Jacobs insisted that regarding the use of the word “may” he was not convinced with the explanation provided by Mr Mkalipi because if an award had been awarded, it was binding unless challenged. This meant that it could be taken to a higher court. The organisational issues were arguments to be put in court to the judge or a commissioner or an arbitrator. He hoped that the next time a better explanation was going to be given by the Department but for now he was not convinced with the use of the word “may”.

Mr M Sibande (ANC, Mpumalanga) proposed that DoL should be allowed to complete its responses and if there were follow up questions, and then Members could comment or ask further questions. He understood that the proposed changes were technical ones. Only a few changes to references had been made. Many of the questions raised by Mr Jacobs were not related to the proposed technical changes.

The Chairperson agreed with Mr Sibande but Mr Jacobs had just asked a follow up question.

Mr Groenewald said that he was going to talk about potential job losses which the Committee had discussed in the previous meeting. He was not satisfied with the response given by the Department about job losses.

The Chairperson reminded Mr Groenewald that the Committee was currently focusing only on the technical aspects of the Bill.

The Chairperson thanked the Department for the proposals.

Mr Groenewald said that he was very concerned about job losses potentially caused by the Labour Relations Amendment Bill. The explanation of the Department was not satisfactory. With all the strikes, the employees were going to benefit in the short term but in the long term there was no benefit for such actions and decisions. Examples could be taken from the mining industry where due to strikes and the failure to reach an agreement, the mines were closing and thousands of people were losing their jobs. Such jobs were never going to be made available again. Many mines were closing down. The country was losing jobs due to all the strikes which were being orchestrated. Another example was in the petrol industry where petrol attendants went on strike. The petrol attendants were actually being forced to strike as in the Western Cape the workers were very interested in continuing to do their work. These actions were chasing away investment and that was not good for creating jobs.

Mr Sibande said that he was not comfortable with the comments made by Mr Groenewald. The focus of the meeting was the Bill and it was important not to stray away from the proposals made by the Department.

The Chairperson said that it was important for the Committee to finalise the Bill so that the Department could go back and draft the final phrasing. After these technical changes, she was convinced that discussion on the Bill had been exhausted. The Department had to insert the corrections made by the Committee and thereafter the Committee would go through the Bill clause-by-clause. The Committee was also supposed to be aware of the amendments made by the Portfolio Committee on Labour.

Mr Mkalipi responded that in the previous meeting, he had taken the Committee through the corrections and amendments made by the Portfolio Committee but with the permission of the Chairperson, he could repeat the presentation.

The Chairperson asked Mr Mkalipi not to do the presentation again and requested that the Committee should proceed to discussion on the Basic Conditions of Employment Amendment Bill. 

Basic Conditions of Employment Amendment Bill
In response to the Chairperson asking if Members had any questions or comments about this Bill, Mr Jacobs said that there was only one issue. He asked for clarity on Clause 8(d)(p). He just wanted a simple clarification as to the understanding and the logic behind the paragraph.

Mr Mkalipi replied that the clause provided for the establishing of one or more methods for determining the conditions of service for labour tenants who had a right to occupy and to use a part of a farm as contemplated in Section 3 of the Land Reform (Labour Tenants) Act, 1996.

The Chairperson thanked the Department and suggested that the Committee would give time to the Department to polish the Bill and thereafter the Committee would arrange a final meeting for these two bills. There were several questions where Members felt that answers were still needed. In the next meeting, the Department would provide a more detailed response to questions.

The meeting was adjourned.

[Apologies from Mr D Feldman (COPE, Gauteng) and Ms L Mabija (ANC, Limpopo)]