Abbreviations/ Acronyms

Transcription

1 LABOUR RELATIONS AMENDMENT ACT NO 6 OF 2014 Prepared by CLSO BC: CCMA: ESC: LAC: Abbreviations/ Acronyms Bargaining Council Commission for Conciliation, Mediation & Arbitration Essential Services Commission Labour Appeal Court NEDLAC: National Economic Development and Labour Council TES: Temporary Employment Service Common name (Labour Broker) 2 1

2 Collective Rights Section 21 Difficult for trade unions to organise where high level of temporary employees New test element that commissioners must consider Unions can obtain additional rights Qualified Normal strike permission still needed 3 Collective Rights Section 22 Previously unclear if client s premises could be seen as workplace for exercise of collective rights Makes it clear that any Chapter III reference to employer s premises read as including client s premises Speaks to rights and interest affecting third parties via arbitration award 4 2

3 Collective Rights Section 32 Amendments were required to address efficiency issues associated with BCs Improves the efficiency of the exemption procedures associated with BC concluded collective agreements Ensures independence of the exception appeal body Requires consultation with the public Representation factors extended Consequential section 49 amendment Certificate specifying level may be taken into consideration for related purposes, i.e Minister considering agreement extension 5 Section 69 Picketing Rules Trade Unions who arrange pickets for their members in furtherance of a strike or which is in opposition to a lock-out, may encounter problems in that that premises at which a picket is to take place, does not belong to the employer. 6 3

4 Section 69(6) Picketing Rules Now includes that the Commission in establishing picketing rules, may make provision for picketing in a place which is outside the employer premises and owned by another person as long as the other person has been afforded an opportunity to make representations to the Commission. 7 Picketing Rules Section 69(12)-(13) Sub-section (11) only states that a dispute about picketing rules may be referred to the Labour Court but does not refer to any types of relief. Sub-section 69(12) is inserted to allow the Labour Court to grant certain relief: urgent relief, an order directing parties to comply with picketing agreement or rule or variation of picketing agreement or rule. 8 4

5 Picketing Rules Sub-section 69(13) sets time requirements for the Labour Court. If an Applicant seeks an order directing compliance with a picketing agreement, then 48 hours notice to the Respondent must elapse before the Labour Court may grant relief. 9 Section 70 Essential Services Committee There is a negative perception about the functioning and administration of the Essential Services Committee (ESC) which operates under the auspices of the Commission. There are also numerous problems with the system of dispute resolution in essential services. Section 70 completely overhauled (70A-70F) 10 5

6 Essential Services Committee 70A: Composition of ESC 70 B: Powers and functions of ESC 70 C: Appointment panels 70 D: Powers and functions of Appointment panels 70 E: Jurisdiction of ESC 70 F: Regulations of ESC 11 Minimum Services Section 72: Section 72 replaced by a new section 72. The current section does not deal with minimum services in a comprehensive manner 1. The ESC Panel-orders parties to negotiate a Minimum Services Agreement (MSA) within a specified time allows parties to refer to Commission if time line not met 12 6

7 Minimum Services 2. The ESC Panel-can decide Minimum Services if parties fail to conclude a collective agreement or the collective agreement is not ratified. 3. If ESC Panel act in terms of (2), the determination of what constitutes minimum services is binding on employer and employee. Parties cannot refer a dispute to the Commission in this regard. 13 Minimum Services 4. The determination by the ESC Panel as to what is a minimum service remains valid until it is revoked by the ESC and cannot be varied or revoked for a period of 12 months after it is made. 5. Only if the ESC has made a decision iro what is a minimum service may a party refer the matter to a dispute forum. 14 7

8 Winding up of trade unions / Employers Organisations Section 103A: Appointment of an Administrator In cases where a trade union / employers organisation is wound up, the Labour Court has to appoint a Liquidator. The amendment allows the Labour Court to appoint an Administrator as the first step. A person such as Commissioner may be appointed to administer the affairs of a trade union/ employers organisation. 15 Winding up of trade unions Section 103A: Appointment of an Administrator The amendment allows an administrator to be appointed on the basis that a trade union/ employers organization materially fails to perform their function or because of financial mismanagement 16 8

9 Winding up of trade unions Section 103A: Appointment of an Administrator The fees paid to an Administrator is decided by the Registrar of the Labour Court. The Labour Court may terminate the appointment of an Administrator if he/she is not longer needed. 17 Section 111 Operation of Registrar Decision Addressing issue of operation of Registrar s decision were challenged by trade union or employer s organisation Appeal does not suspend operation of decision ILO Standards 18 9

10 Section 115 Need to CCMA Rules empower Commission clarify rules regulating right of parties to be represented Commission can make rules to regulate consequences of party failure to attend conciliation/arbitration LAC interpretation of CCMA rule-making power 19 Enforcing Arbitration Awards Section 143 Need to streamline mechanisms for enforcing arbitration awards Presumption: as if order of the Labour Court Exception advisory Contempt proceedings to enforce exception money If payment require, enforced/executed as if order of Magistrate s Court 20 10

11 Section 144 Variation of Arbitration Awards Expands discretion of Commission Variation / rescission of arbitration awards and rulings Brings certainty (case law) Absence of any party good cause shown 21 Section 145 Review Applications Frivolous applications brought to frustrate the system Reduce number or frivolous applications Expedite finalisation of applications To prevent delays by applicants Within 6 months Judgment within reasonable time 22 11

12 Section 150 Public Interest Intervention Empowering provision Extends and regulates circumstances in which CCMA (director authorised) may intervene (conciliation) At request Public interest Intervention does not affect strike / lock-out entitlements 23 Section 186 Meaning of Dismissals The ambit of dismissals in respect of contracts of employment has evolved over time. The amendment is designed to bring the section in line with case law or to strengthen certain positions. (1)(a)- An employer has terminated employment with or without notice (contract deleted) 24 12

13 Section 186 Meaning of Dismissals (1)(b)- The legitimate expectation of renewal of contract has been extended to include legitimate expectation to be retained in employment indefinitely (permanent employment). 1(e) and (f) the word contract is deleted. 25 Section 187 Lock-Outs Court cases interpreted contrary to legislative intent and the purpose of the Act Removed anomaly in s 187(1)(c) Protect the integrity of the process of collective bargaining 26 13

14 Section 188A Disciplinary Enquiries Previously referred to as pre-dismissal enquiries Promote enquiries by arbitrators Avoid need for both enquiry and arbitration hearing Aligns with Protected Disclosures Act, 2000 Reduces risk of collateral litigation (High Court) 27 Section 189A Extension (Retrenchment) Uncertainty regarding application (specifically substantive fairness test) Precludes party from unreasonably refusing consultation period extension Empowering provision: discretion of the court 28 14

15 Section 189A Dismissal Date Uncertainty regarding calculation of dismissal date Creates certainty Date of notice, or Date on which salary paid 29 Section 191 CCMA Jurisdiction (Operational Requirements) Need identified to clarify procedural issues relating to operation requirement dismissals (retrenchments) allow for cheaper & less formal adjudication Clarifies arbitration in case of only one employee CCMA jurisdiction to arbitrate disputes about operational requirement dismissals (small employees) 30 15

16 Section 198 Temporary Employment Services When a person is employed through a TES, the person is deemed to be the employee of the TES. The Client and TES are jointly and severally liable toward the employee if the TES contravene a collective agreement, binding arbitration award or basic condition of employment [current 198(4)] 31 Temporary Employment Services Section 198(4A) New 198(4A) inserted. Section regulates the extent to which the TES and the Client are severally liable toward the person rendering the service (employee). Employee can institute proceedings against both parties (TES and client) or either or them A labour inspector may seek a compliance order against the TES and client or either of them 32 16

17 Temporary Employment Services Section 198(4A) Order/Award enforceable against both parties A TES must provide employment particulars as required by section 29 of the BCEA. (this will apply 3 months after the amendment act comes into force to persons who have been contracted by a TES prior to the date of commencement) 33 Temporary Employment Services Section 198(4A) An employee cannot be employed by a TES in contravention of labour law. In any proceedings brought by an employee the labour court or arbitrator may determine whether the employee is employed in contravention of an labour law. No person can operate as a TES unless registered as a TES in terms of legislation 34 17

18 Temporary Employment Services Section 198(A)- Below the earnings threshold Persons who find employment through a TES, usually find themselves in situations where they earn less than person who are employed and doing the same work for the same employer. TES placements continue for long periods and in certain cases used to evade labour law legislation. 35 Temporary Employment Services Section 198(A)- Below the earnings threshold New section limits the scope of temporary service to: A period not longer than 3 months Substituting for an employee who is absent (maternity leave etc) As set out in a collective agreement concluded in a bargaining council 36 18

19 Temporary Employment Services Section 198(A)- Below the earnings threshold : New sub-sections (3) and (4) If person is performsca temporary service for a client in terms of section 198A(1) that person is the employee of the TES. If the employee is not performing a temporary service in terms of 198A(1) then the person is an employee of the Client. If Client terminates contract to avoid the effect of the sub-section, it is a dismissal 37 Temporary Employment Services Section 198(A)- Below the earnings threshold : New sub-section (5) Persons who become employees of a Client cannot be treated less favourably than the Client s others employees performing the same or similar work New sub-section (6), the Minister must call for submissions from public when deeming categories of work temporary services

20 Temporary Employment Services Section 198(A)- Below the earnings threshold : New sub-section (7) and (8) NEDLAC must be consulted by Minister when publishing a notice in respect of a sectoral determination. 198A applies to employee who services were procured prior to the coming into operation of the amendment, 3 months after the amendment enters into force. 39 Fixed Term Employment Section 198(B)- Below the earnings threshold In order to eliminate the abuse of keeping employees on fixed term contracts over lengthy periods time for no justifiable reason

21 Fixed Term Employment Section 198(B)- Below the earnings threshold : New section 198B sets the scope of whe a fixed term contract terminates, on The occurrence of a specified event The completion of a specific task or project A fixed date as provided for in sub-section 3, other than retirement. 41 Fixed Term Employment Section 198(B)- Below the earnings threshold Sub-section 198B(3) and (4) (a)-(i)sets out various scenarios; Nature of work limited Another justifiable reasons Sub-section (4) justifiable if Replacing someone temporary Volume of work Student graduate being trained Specific project 42 21

22 Fixed Term Employment Section 198(B)- Below the earnings threshold : Sub-section (5) If an employee renews a fixed term contract in contravention of sub-section (3), the employment will be considered to be indefinite term. Sub-section (6) An offer of fixed term contract must be in writing and set out the reasons for the fixed term contract. 43 Fixed Term Employment Section 198(B)- Below the earnings threshold Sub-section (7) and (8) If there is a dispute about a fixed term contract, the employer must prove that a justifiable reason exists for a fixed term contract An employee who is employed longer than 3 months must not be treated less favourably than an employee who is permanent doing the same or similar work

23 Fixed Term Employment Section 198(B)- Below the earnings threshold : Sub-section (9) At the time when the amendment act enters into force an employee must give fixed term contract employees equal opportunity to apply for vacancies. Sub-section (10) when fixed term contracts are used for periods longer than 24 months, at the end of the contract the employee must be paid 1 week s remuneration for each completed year of the contract... (Section 35 of BCEA) 45 Fixed Term Employment Section 198(B)- Below the earnings threshold :Sub-section (11) The termination payment contained in sub-section 10 is not applicable if prior to the termination of the fixed term contract, the employer offers continuous employment or secures employment with another employer on same or similar terms, and the employment commences at the expiry of the contract

24 Part-Time Employment Section 198(C)- Below the earnings threshold Seeks to regulate part-time employment of vulnerable workers and that part-time employees should be treated less favourable than employee in permanent employment. 47 Part-Time Employment Section 198(C)- Below the earnings threshold Part-time employees are remunerated according to the time worked and cannot be treated less favourably than full-time employees Part-time employees should be given access to training and skills development as would full-time employees 48 24

25 Section 198(D) Disputes about types of employment This section was inserted to provide for the dispute mechanism in respect of the new sections inserted into the LRA. Disputes about interpretation of 198A to 198C can be referred to the Commission, a bargaining council and if not resolved to arbitration 49 Section 198(D) Disputes about types of employment The different treatment of employees in respect of sections 198A to 198C is justifiable in respect of Years of long service Merit Quantity and quality of work 50 25

26 Section 200A Employee Presumption Presumption extended to cover this act and any other employment law, as well as section 98A of the Insolvency Act, Section 200B Employer Liability Broadens meaning of employer for purposes of the Act To prevent simulated arrangements / corporate structures intended to avoid Act application Makes provision for joint and several liability for noncompliance 52 26

27 Section 203 Code of Good Practice Empowering Provision: Minister may issue Codes By publication in Gazette IF Been tabled and considered by NEDLAC, and NEDLAC reported unable to reach agreement 53 Thank You 54 27