LABOUR: Business, Labour Critical Of New Bills
Recent Western Cape Business News
Immediate reactions to the new draft labour amendment Bills has been negative – from both business and labour, says Chris Todd, a director of corporate law firm Bowman Gilfillan.
Cabinet has approved the submission to Parliament of the long anticipated amendment bills to the LRA and BCEA. Labour brokers face significantly increased regulation, but there is no suggestion of banning them, as COSATU has demanded.
Todd notes that there is some tightening up of the regulation of strikes, and changes to the procedures for enforcement of BCEA minimum standards and arbitration awards.
“For the most part, the proposed amendments, in the form now captured in the draft bills, are clearly directed primarily at improving the position of lower paid workers – those earning below the BCEA threshold (R172 000) – and, in particular, employees at that level who are employed in non-standard employment contracts – fixed term contracts, through labour brokers, and in part-time work.
“The draft amendments give employees in this category a right to be treated on the whole not less favourably than comparable ‘permanent’, indefinite, or full time employees.”
Todd points out that enforcement of minimum standards by labour inspectors is streamlined, with the proposals now cutting out the attempt to secure an undertaking as a necessary step before a compliance order is issued, and cutting out appeals.
“This will allow the department of labour to go straight to the Labour Court to enforce compliance orders.”
At first blush, Todd considers there could be some justification for concerns that the amendments, taken as a whole, are likely to increase the cost of doing business and so, by necessary implication, are likely to be bad for business and bad for employment creation.
“But the proposals are quite complex and nuanced, and there may be more to the changes than immediately meets the eye.”
He believes there is “some reason” for the labour movement to express concern.
“Some aspects of the proposed changes are undoubtedly favourable to employers, and there are some important elements of flexibility that are still preserved, despite increased protection to lower paid workers.”
Provisions of the drafts that should mitigate some employer concerns include:
Limiting the new protection for non-standard employment to employees earning below the BCEA threshold;
Retaining full flexibility to use labour brokers and fixed term contracts during the first six months of employment – including to “try out” employees for suitability for longer term employment;
Permitting differential treatment between employees for justifiable reasons;
Setting clear guidelines for the circumstances in which fixed term contracts may be used.
Todd says that measures to limit strike misconduct and violence include the reintroduction of balloting as a statutory requirement for protected strikes, and more careful control of picketing.
“The Labour Court would also now have the power to put an end to an otherwise protected strike, or stop the employment of replacement labour, if employees or employers violate picketing obligations.”
He highlights “some interesting new ideas” that will be considered as favourable or unfavourable, depending on the perspective from which the changes are viewed.
· Making it possible for minority unions to claim organisational rights previously restricted to majority unions in certain circumstances;
· Giving the Minister the power to make a sectoral determination of general application – applicable to all sectors not otherwise covered; and
· Introducing termination on notice for high paid executives.
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