Davidson Proposal: Regulate Interest of State Employees; Ollis Proposal: Amend the Labour Relations Act 1995 (Act No. 66 of 1995); and Fact Sheet 2: Special Petition

Meeting report

Davidson Proposal: Regulate Interest of State employees
The Chairperson recapped that Mr I Davidson (DA) had briefed the Committee on the proposed legislation, and on 17 August the Committee had sat jointly with the Portfolio Committee on Public Service and Administration, when the Minister, the Hon Richard Baloyi, had briefed the Committee on developments within the Ministry. The Portfolio Committee on Public Service and Administration’s submission on its views had not yet been received.

Mr P Pretorius (DA) reminded Members of the six guiding principles to which the Committee confined its consideration of a legislative proposal. The only one that came into play in this instance was whether the proposal pre-empted legislation soon to be introduced by the Executive. The Committee either had to block it or grant permission for the Member to proceed, in which case the National Assembly would make the decision as to what to do with it. He suggested that the proposal be considered on the basis that it might pre-empt.  The Minister in his briefing had said that the Executive was contemplating legislation that would cover some of the topics mentioned in the proposal, but not all. He had also said that it was planned to introduce legislation by the end of the financial year, which Mr Pretorius felt was too long to be considered as soon. Looking at the history of legislation that the Committee had blocked as ‘soon to be introduced’, the Executive had not stuck to deadlines thus far. Mr Pretorius suggested that the Committee take cognisance of the fact that it might be pre-empted, but that it went to the House and the House take the decision. The Minister had said that it was not a question who raised the issue; it was a question of whether the input was in the interests of democracy. Mr Pretorius proposed that the Committee consider the legislation and recommend to the House that it be referred to the Portfolio Committee on Public Service and Administration to be considered as a reference document when it deliberated on the legislation to be introduced.

Ms M Pilusa-Mosoane (ANC) suggested that the Committee not finalise the matter until the Portfolio Committee had indicated its position.

Mr Pretorius said the proposed legislation was not yet with the Portfolio Committee; it was still in the design phase and the Portfolio Committee had nothing in front of it except the Integrity Framework, which was not legislation but a policy document. Although he accepted the concept of consulting with the Portfolio Committee, there was really nothing that the Portfolio Committee could really tell the Committee.

The Chairperson supported Ms Pilusa-Mosoane: the rules said that the Committee must consult the Portfolio Committee.

Some discussion followed on whether the word ‘must’ had been changed to ‘may’; but the latest rules book still had ‘must’. It was agreed that the word ‘may’ prevailed, but that the Committee should obtain the position of the Portfolio Committee.

Ms M Kubayi (ANC) said that after deliberations with the Minister it was clear that the proposal could not proceed because similar work was being done. The Portfolio Committee did not have the legislation in front of it and did not have the details. The Committee was fortunate in that the engagement helped this Committee in that Members were able to ask questions and clarity was given. The final report that this Committee adopted would need to contain a portion of the comments from the Portfolio Committee on Public Service and Administration as well as a paragraph or two giving the reflections of this Committee.

When the Portfolio Committee started the process of the legislation itself some of what was in the legislative proposal would need to be looked at, and that could also be part of the recommendation in the report.

The Chairperson gave Mr Pretorius permission to circulate a report that he had drafted, to be considered at the next meeting.

The Chairperson said that the rules gave two options: to agree or not to agree, or refer back to the Portfolio Committee for further investigation before returning to this Committee. In the light of what Mr Pretorius had said, the Committee might at a later stage look at it in depth and propose something in between, because the points raised by him were very important.

Adv Gary Rhoda, Parliamentary Legal Advisor, said that this Committee in the previous Parliament would keep certain proposals in abeyance until guarantees by the department concerned either came to fruition or otherwise. He used the example of the floor crossing legislation where the department had said it would consider floor crossing. The Committee held that proposal in abeyance until the time that the department said it would introduce legislation. The department subsequently did introduce legislation and the Committee then abandoned that specific legislative proposal. It was not uncommon for this Committee to hold proposals in abeyance.

Adv Rhoda also highlighted that the referral of the proposal to the Portfolio Committee on Public Service and Administration was to check whether there was any such legislation soon to be introduced. The Minister promised that legislation would be introduced within the financial year, which Adv Rhoda thought was reasonable. However, the Committee would need to check whether that legislation went as far as the proposal did. No draft legislation had been presented to the Committee that suggested that it did go as far as the proposal, which was of some concern because the Minister had specifically mentioned the Organisation for Economic Cooperation and Development (OECD) and how South Africa was signatory to its protocol. The Committee would need to check whether the proposal met those specific requirements.

Adv Rhoda recommended keeping the proposal in abeyance.

Ms Kubayi would not want to see the Committee having pending reports for some time. This Parliament was an active Parliament. There had been processes and engagement with the Minister who had clearly indicated the processes that the Ministry was involved in and what was to happen in terms of the legislation. The Committee could put in place a tracking mechanism. She suggested that Members look at the report which Mr Pretorius had drafted and circulated; it could assist in finalising and concluding the matter, not putting it in abeyance. The Committee should put in place a tracking mechanism and stick to deadlines.

The Chairperson concluded that, while giving the Portfolio Committee on Public Service and Administration a chance to put its position, the Committee should look into all aspects. He asked Members to study the draft report. From a management point of view the vacuum of tracking had been identified, and the Research Unit, in particular, should be responsible to see that, when the Committee received briefings by stakeholders, the work should have been discharged, and to track progress. That should be done prior to discussions in the House so that there was a common understanding.

It was agreed that a decision would be taken at the next meeting.

Ollis Proposal: Amend the Labour Relations Act 1995 (Act No. 66 of 1995)
The Committee was had been briefed by Mr I Ollis (DA) on 31 March on why the Committee should consider the proposal. The Chairperson suggested requesting a joint meeting, and to be briefed by the Minister.

Mr Pretorius supported that, but legal opinion said there could be constitutionality problems. The opinion was based on the proposal by Mr Ollis, in which he mentioned not only strikes but also demonstrations and picketing.  In his briefing Mr Ollis had clearly said that one should not be blinded by the actual proposal which really tried to regulate picketing and demonstrations and not actually striking. Mr Pretorius asked the Legal Advisor whether his opinion was based on strike action or on picketing and demonstrations? Would there be a different view if the striking part was left out?

Adv Rhoda agreed that there was a difference between striking and picketing and demonstrations. However,  strikes could elevate into protest action.

Mr Pretorius stressed that, in his oral presentation Mr Ollis had been at pains not to include strikes. He had actually said that the proposal was not about unions; it was not about the right to strike or the rights of workers or employers, but about violence. He had said that the actual wording could be determined later on. Mr Ollis was present.  Mr Pretorius asked, through the Chairperson, whether Mr Ollis could confirm that that was his intention - not to curb strikes, but the consequences of strikes, namely violence - and ask the Legal Advisor to reword the legal opinion, which would have a pivotal effect on the Committee’s deliberations.

Ms Kubayi said that maybe the document itself would need to be reworded, but not the legal opinion.

The Chairperson said the points raised would equally offer an opportunity for the ministry and the portfolio committee concerned. Mr Ollis had been given an opportunity to brief the Committee. The Committee was aware of the content and what the legal team supported. The Committee should go to other stakeholders to enrich what it wanted to propose.

Ms A van Wyk (ANC) supported that, but pointed out that but some of the issues in the proposal were already in legislation, in the Gatherings Act 1993 (Act No. 205 of 1993). She would be interested if the Legal Advisor could look at such aspects already covered in legislation. 

Adv Rhoda agreed that it was in the Gatherings Act and was currently being considered by the Supreme Court of Appeal in the Jarvis case. Members would recall that in 2006 there was a security guard strike down Long Street and some cars and property were damaged. That case was decided by the Cape High Court and was currently with the Supreme Court. He also had a constitutional concern around this proposal    for   an amendment to the Labour Relations Act, as a Section of the Constitution spoke to the workers’ rights and the employers’ rights and groups of one party and groups of another.

The Chairperson said the Committee would look at those things and arrive at a determination.

Mr Pretorius asked whether it would be acceptable for Mr Ollis to submit a revised and more clear proposal.

The Chairperson said there would be nothing wrong with that.

Ms Kubayi said that would have to be checked procedurally.

The Chairperson said that, if there were substantive changes, it would have to be resubmitted to the Speaker, but minor changes for clarity would be acceptable.

Ms Kubayi stressed that the content of the submission would be changed as published in the Announcements, Tablings and Committee Reports (ATC).

The Chairperson concluded that the Committee would try to secure a meeting with the Portfolio Committee on Labour and invite the Ministry to brief the Committee. The Committee would look at the legal submissions and any other resource document that would assist it to arrive at a well-informed decision. He requested the Researcher to look at the current legislation that was referred to, the court case that was referred to, and the proposal itself, prior to meeting with the Portfolio Committee on Labour and the Ministry.

Mr Ollis reminded Members that the first point he had made in his presentation was that the text of the proposed amendment was an example that he had attached to the memorandum to illustrate how it could be encapsulated in legislation. The memorandum was his proposal. The text of the proposed amendment was only an example, which he had made very clear.

The Chairperson said the rules were very clear; once a proposal was given the go ahead, that was when the content would be properly set out.

It was agreed to seek a joint meeting with the Portfolio Committee on Labour and invite the Ministry to make a presentation.

Fact Sheet 2: Special Petition
Moved by Ms M Molebatsi (ANC) and seconded by Ms Pilusa-Mosoane, the Fact Sheet was adopted.

The Fact Sheet would become one of the Committee’s guiding documents in dealing with petitions.

Committee business
The Chairperson announced that the Munasir Petition was adopted by the House.

The administrators were working on the preparation of documents for the proposed study tour for next year.

The Chairperson welcomed Ms P Kopane (DA), who had been deployed to the Committee by her party in place of Ms J Terblanche (DA).

A new legislative proposal had been received from Mr J Smalle (DA), which would be formally tabled and programmed for him to present to the Committee.

Committee minutes: adoption
The Committee adopted, with amendments, the minutes of 17 and 24 August 2011.

The meeting was adjourned.