DoL braces itself for national public briefing sessions on amendments to the LRA and the BCEA

With South Africa’s Labour minister Mildred Oliphant having submitted amendment bills for the Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA) to the Cabinet Committee, the Department of Labour (DoL) is inviting all stakeholders who have an interest in the proposed amendments to Labour Legislation to participate in public briefings.

The purpose of the public briefings, which will be held nationally, will be to report back and inform the public about the Labour Relations Amendment Bill, 2012 and the Basic Conditions of Employment Amendment Bill, 2012.

DoL Chief Director: Collective Bargaining Thembinkosi Mkalipi said the department had fulfilled part of its mandate, that of submitting the amendments to LRA and BCEA to Cabinet and next step going forward was for the bills to be tabled before Parliament for debate.

Mkalipi said the public briefings planned by DoL are intended to strictly inform and were not an input gathering session. He said any further public inputs would now depend entirely on Parliamentary process.

“We are going to have briefings in all the provinces. In 2010 after publishing the new bills for amendment, we went on a national public hearings campaign, where we solicited comments from the public and various organisations. So, we feel it is also important, that we should go back and report to public what we propose. We want to educate interested stakeholders what these changes mean. Our duty now is to provide clarification,” he said.

Mkalipi said based on previous engagements with stakeholders DoL was expecting at least between 200-250 attendees per session. The public briefings will be for free.

“We think these bills deal with all problems that were being encountered in the labour market including the long drawn issue of labour brokers,” Mkalipi said.

All public briefings will be held from 10:00 to 13:00. They are intended to take a form of an interactive session, with a presentation followed by a question and answer session.
The schedule for the public briefings is as follows:

Labour Minister Mildred Oliphant told a media briefing last week that once the parliamentary discussions were completed it would be left to the President to ascent any proposals and ensure implementation.

Oliphant said: “business knows it has to implement and on its part the department would induce the enforcement”.

The first versions of these two bills were published for public comment in 2010.  The Department received comment from approximately 390 individuals and organisations - with comments focused mainly on the issue of labour brokers. The current amendments have their origins in the growing “informalisation” or “casualisation” of work that has become a feature of the South African labour market over the past decade.
Key areas of amendments to the LRA and the BCEA will focus on addressing what is now commonly referred to as the phenomenon of labour broking.

Additional amendments have been effected to these acts to achieve the following:

• To bring them in line with labour law developments;
• To improve the functioning of the Commission for Conciliation Mediation and Arbitration (CCMA), and;
• To fulfill our obligations as a member state of the International Labour Organisation (ILO).

The following are, in summary, the major areas of amendment in the bills. Changes to the Labour Relations Amendment Bill 2011 include:

• Addressing the problem of labour broking - Temporary employment is limited to genuine temporary work that does not exceed six months.
• Regulating contract work - The amendments introduce regulation of fixed term contracts for those who earn below the threshold. The provisions relating to fixed term contracts do not apply to an employer who employs less than 10 employees, nor does it apply to an employer who employs less than 50 employees and whose business has been in operation for less than two years.
• Commission for Conciliation Mediation and Arbitration (CCMA) - The bill proposes a range of amendments. These amendments include the exclusion of high-income earners from bringing unfair dismissal claims to the CCMA.
• Strikes and lock-outs - The changes are intended to respond to unacceptable levels of unprotected industrial action and unlawful acts in support of industrial action, including violence and intimidation.
• Essential Services - A number of amendments are made to deal with problems that have been identified with the current system for dealing with disputes in essential services. A new provision deals with public officials exercising authority in the name of the state, defined as customs’ officials, immigration officers, judicial officers and officials working in the administration of justice.
• Organisational rights and collective bargaining - A few amendments are introduced to change the circumstances under which a Commissioner of the CCMA may grant organisational rights where trade unions refer disputes relating to these rights.
• On the side of the Basic Conditions of Employment Amendment Bill, 2012, changes will relate to: changes to the power of the Minister - Amendments are proposed to give the Minister the power to prescribe thresholds of representativeness of a trade union to have the organisational rights of access to employer premises. Further amendments in this regard propose that the Minister could set increases to actual wages instead of minimum wages for vulnerable workers in sectoral determinations.
• Sectoral Determinations - Amendments are proposed to adjust the powers of the Minister and the Employment Conditions Commission in respect of sectoral determinations to, inter alia, facilitate regulation of temporary employment by also extending protection of vulnerable workers and facilitate their right to freedom of association.
• Child labour - The provisions in the BCEA dealing with the prohibition and regulation of child labour are to be extended to cover all work by children and not only work by children as employees.
• Strengthening the power of the inspectorate - amendments are proposed to remove bottle-necks and delays in the enforcement process.
• Penalties - The maximum term of imprisonment for an offence involving child labour or forced labour is increased from three to six years.

The two bills that are to be submitted to Parliament have been the subject of robust engagement between the social partners at Nedlac during the past year. While there has been substantial agreement on many of the amendments, there remain key areas of disagreement. On these areas of disagreement, business and labour are entitled to put forward their views during the Parliamentary process in terms of the Nedlac Protocol.

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