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PROPOSED AMENDMENTS TO LABOUR LAWS
Introduction
On 17th December 2010 the Minister of Labour published four Bills in the Government Gazette. The Bills propose amendments to a range of employment laws. Members of the public were given until 17 February 2011 to comment on the Bills.
Although the purpose of the proposed amendments to the law and their effect is not clear in many respects, we think it important to give clients a quick overview of what is envisaged, particularly because the Bills have already been the subject of much speculation and at times misleading reporting in the public media.
We will be running a client seminar on 2 February 2011 for those clients who want to examine the proposals in more detail. This briefing note is intended to give an overview only.
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Key Themes
- Three of the Bills propose amendments to the Labour Relations Act, the Basic Conditions of Employment Act and the Employment Equity Act respectively. The fourth is a newly conceived piece of legislation which would, if enacted, be known as the Employment Services Act. This is the Bill that is intended to regulate labour broking and what are referred to as "private employment agencies". It also seeks to establish what are referred to as public employment services to regulate recruitment, including recruitment of foreign workers, to establish a process of reporting on vacancies and filling positions, and related matters.
- The most significant theme that emerges from the proposed amendments to the law is the reintroduction of significant criminal sanctions for failure to comply with statutory employment obligations. So, for example, the proposed amendments to the Basic Conditions of Employment Act remove to a large extent the current role of a labour inspectorate that provides progressively more serious directives to employers to comply with provisions of the BCEA; and replace this with the outright criminalisation of breaches of most of the minimum standards provided for in the Act, including those relating to working hours, meal breaks and rest periods, overtime, leave, pay for work on Sundays and Public Holidays, and administrative obligations around remuneration. It appears to be intended that prosecutions for the newly created offences under the BCEA will be dealt with in the Labour Court.
- Although no new criminal offences are proposed in the Employment Equity Amendment Bill, this proposes the replacement of the existing schedule of fines for contraventions of an employer's obligations under various provisions of the Employment Equity Act. Where these fines previously ranged from R500 000 up to R900 000, the Bill introduces fines calculated as a percentage of the employer's turnover and rising from 2% up to 10% of turnover for repeated contraventions.
- The overall tenor of these changes is to introduce or increase the threat of criminal sanctions and of severe fines to induce compliance by employer's with the BCEA and Employment Equity Act respectively.
- The second and perhaps most significant objective which the proposals seek to achieve is the far reaching regulation of labour broking. In fact, the Bills appear to be designed to eliminate the practice of labour broking altogether, but they seek to do so in a way that is so convoluted, and without expressly stating this objective, that it is unlikely that they would achieve that objective at all if enacted in their present form. It appears that all the Bills would achieve, if enacted in their present form, would be the complete deregulation of labour broking, and the introduction of a licensing system for employment agencies involved in what are described as "job intermediary services" which include the matching of job seekers to work opportunities.
- It is highly unlikely that this Bill will be enacted in its present form, and it can only sensibly be understood to be an initial proposal that requires a considerable amount of further engagement between the social partners before further draft legislation is produced to deal effectively and coherently with the position of labour brokers. Whatever one's views about the practice of labour broking, there would be little point in enacting legislation that introduces an outright ban. Even a cursory reading of the December 2009 decision of the Namibian Supreme Court on labour broking (which declared an outright ban introduced in a Namibian statute to be unconstitutional) shows why an attempt at an outright ban is almost certain to fail. Unfortunately the more considered regulation of labour broking mooted earlier in the current legislative round appears to have been jettisoned in favour of a confusing and completely unworkable alternative that, as we have suggested, in fact probably achieves little more than the complete deregulation of labour broking.
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Labour Law Amendment Breakfast Seminar
PRESENTERS
DATE
Wednesday, 2 February 2011
TIME
08h00 - 10h30
VENUE
The seminars will be conducted at the offices of Bowman Gilfillan, 165 West Street, Sandton (entrance off Sandown Valley Crescent).
RSVP
Details of the Cape Town Labour Law Amendment Breakfast Seminar to follow shortly.
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| Key Changes |
Below we highlight the key changes proposed in each of the four Bills:
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- The Basic Conditions of Employment Amendment Bill. Read more.
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- The Employment Equity Amendment Bill. Read more.
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Included among the full range of employment law advisory and litigation services that we provide are the following specialised services:
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John Brand
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John Brand is a director and ADR specialist at Bowman Gilfillan. He has BA and LLB degrees from the University of the Witwatersrand and is also a director of Conflict Dynamics cc. He is a member of the advisory board of the African Centre for Dispute Settlement at Stellenbosch University and is on the executive committee of the National Dispute Settlement Practitioners Council.
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| Contact Details
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165 West Street
Sandton
Johannesburg
P O BOX 785812
Sandton
2146
South Africa
Tel: +27 (0)11 669 9000
Fax: +27 (0)11 669 9001
info@bowman.co.za
www.bowman.co.za
www.bowmangilfillan.mobi
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