LABOUR LAW AMENDMENTS

On 17th December 2010 the Minister of Labour gazetted four Bills for public comment.

The Bills are intended to, among other things:

  1. Totally outlaw labour brokering;
  2. Significantly regulate private placement agencies and give priority to a State placement agency;
  3. Prohibit fixed term contracts of any kind unless employers can justify them in every instance;
  4. Prevent employees who earn more than a prescribed amount from referring disputes in terms of the Labour Relations Act;
  5. Eliminate the following considerations in determining whether an employer is complying with the Employment Equity Act:
  a. regional demographics;
  b. the pool of suitably qualified persons from which the employer can reasonably be expected to draw employees;
  c. economic and financial factors relevant to the sector in which the employer operates;
  d. present and anticipated economic and financial circumstances of the employer; and
  e. progress made in implementing employment equity by other designated employers operating under comparable circumstances and within the same sector;
  1. Provide that the only considerations in determining whether an employer is complying with the Employment Equity Act are whether reasonable steps have been taken by an employer to train suitably qualified people from the designated groups and to appoint and promote suitably qualified people from the designated groups;
  2. Make both the client and the sub-contractor liable for all unfair labour practices committed in respect of an employee of a sub-contractor;
  3. Allow the Director of the CCMA to appoint a conciliator to conciliate a dispute whether or not the parties have referred the dispute to the CCMA and whether or not the dispute has already been unsuccessfully conciliated, if the Director believes it is in the public interest to do so. In such event the right to strike is suspended (it seems indefinitely);
  4. Make Con-Arb the norm for all rights disputes;
  5. Significantly restrict the employment of foreigners;
  6. Criminalise numerous breaches of the BCEA and the EEA and impose severe penalties including fines of up to 10% of a company’s turnover.

The Bills may not always achieve all their intentions because there are drafting problems in certain important areas. These drafting problems might also cause possible unintended consequences.

The public is given until 17th February 2011 to comment on the Bills and Bowman Gilfillan will arrange seminars in the second half of January 2011 to explain their content and to explore their legal implications.