Amendments to Labour Law

Happy New Year to you!

Judging by the wonderful start we have enjoyed thus far, Pronel is really looking forward to seeing continued growth in 2011.

As you are all aware, draft amendments to the Labour Bill were published late last year.  Such amendments are open for public debate and comment until mid February 2011 when, it is expected government will make a ruling on these amendments. The current debate surrounding the regulation of Temporary Employment Services (Labour Brokers) is not new.  Calls for the banning of labour brokers have been discussed by unions, since 2000.  In 2009, just ahead of national elections, the debate entered the public domain.  Point one of the ANC election manifesto stated: 

’In order to seek to avoid exploitation of workers and ensure decent work for all workers as well as to protect the employment relationship, introduce laws to regulate contract work, sub-contracting and outsourcing, address the problem of labour broking and prohibit certain abusive practices’

APSO, will take the matter to the Constitutional Court, as successfully undertaken in Namibia in 2009 should, legislation be passed, that is not conducive to business.  Below see comments from Professor Paul Benjamin from Regulatory Impact Assessment (RIA):

For your interest, I have summarized some of the key issues as received from APSO (Associated Personnel Services Organisation).  These amendments to the Act are going to be hotly contested by both business and Cosatu in public hearings which, have already started.  

GOVERNMENT CONCERNS THAT PROMPTED THE REVIEW OF EXISTING LABOUR LEGISLATION:

·Decent Work in relation to a-typical employment arrangements

·Difference in wages and benefits

·Lack of access to benefits i.e. medical aid, provident fund, maternity

·Limited access to training and development opportunities

·Insecurity associated with part-time, temporary work

·Use of “temp” indefinitely, long term with the same employer

·Report abuses

·Dismissal without proper procedure

·Low rate of unionisation

·Failure to extend Bargaining Council Agreements to cover TES employees

·Some TES contracts exclude “right to strike”

·Some TES contracts exclude the right to join a union.

(TES – Temporary Employment Services)


The act includes numerous amendments, however, the main issues facing employers, regardless if you make use of Temporary Employment Services, are:

·All fixed-term employees will be considered permanent unless the employer can prove otherwise

·Temporary employment will effectively cease to exist; the only options being permanent or justified fixed-term contract

·The triangular employment relationship is repealed (s198) effectively prohibiting the use of TES as an intermediary

·Changes to the definition of employer

·Requirement to pay fixed-term employees the same wages & benefits as permanent staff

·Joint and several liability for sub-contractor (employer) and client company in respect to any unfair labour practice within an outsourced or subcontracted environment

·All vacancies will have to be reported to the Department of Labour within 14 days

·Second generation outsourcing agreements would be covered by the s197 transfers of business obligations

·Attempt to make Arbitration Awards (CCMA) have the same status as High Court Awards

·Fines ranging from 2% – 10% of turnover for noncompliance with Employment Equity legislation

I urge you to contact our offices should you require any further clarity on this issue and any of the other proposed amendments to Labour Legislation.  Alternatively, we welcome you to visit our website on www.pronelkzn.co.za for regular updates or, the APSO website www.apso.co.za to access all draft bills and various newspaper articles that have featured this contentious issue.

Yours in Personnel

BRIDGET JONES
MANAGING DIRECTOR