1 / 22

SASLAW

SASLAW. April SASLAW Western Cape Seminar . BASIC CONDITIONS OF EMPLOYMENT AMENDMENT BILL, 2012 Presented by: Sarah Christie with thanks to Shamima Gaibie. Payments to employees or requirement to purchase goods, products or services by an employee. Proposed section 33A

buzz
Download Presentation

SASLAW

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. SASLAW April SASLAW Western Cape Seminar BASIC CONDITIONS OF EMPLOYMENT AMENDMENT BILL, 2012 Presented by: Sarah Christie with thanks to Shamima Gaibie

  2. Payments to employees or requirement to purchase goods, products or services by an employee Proposed section 33A Section 33 – Prohibited Conduct (1) An employer may not- (a) require or accept any payment by or on behalf of an employee in respect of the employment of, or the allocation of work to, any employee; (b) require an employee to purchase any goods, products or services from the employer or from any business or person nominated by the employer.

  3. What is the mischief/purpose of s 33A? It seeks to prevent applicants for work or existing workers having to pay inducements for work itself or for special assignments. It also prohibits any inducing employees to buy goods or services from the employer unless the scheme is financially beneficial to the employee, the price is fair and it is not otherwise prohibited.

  4. Prohibition of work by children - Amendments to sections 43 to 47. Section 43 Child work • Tightens prohibition on child labour by extending ‘employment’ to ‘work’ (independent contractor). • Prohibits ‘work’ by a child under 15 or minimum school leaving age. [SA Schools Act - end of year when child turns 15 or Grade 9 whichever is first. • Criminalises work or service which is inappropriate for a child of that age or risks child’s well being, education, physical or mental health or spiritual, moral or social development. Note: Possible anticipation of extending protection to children between 15 and 18 as the Constitution defines a child as someone under 18 (s 28(3).

  5. Section 44 Regulation of child work The proposed amendment allows the Minister, on the advice of the Employment Conditions Commission (ECC) and with reference to South Africa’s broad obligations in terms of international law (not merely the ILO) to regulate employment of children over 15 years of age but not subject to compulsory schooling. And a proposed s 44(1A) broadens its scope (consistent with s 43) to employees and independent contractors. Section 45 – Medical Examinations This entitles the Minister, after consulting the ECC to make regulations relating to the conduct of medical examinations of children who perform work. Section 46 – This criminalises assisting a person to allow a child to work or to discriminate against a person who refuses to allow a child to work. Typically this could be to protect farm workers whose children are required to work e.g. at harvest time. Section 47 – Evidence of Age As with ss 43 – 44, s 47 extends evidence to relate to children who work other than as employees.

  6. Sectoral Determinations The existing section 55 entitles the Minister to make sectoral determinations to regulate minimum remuneration and conditions of work as well as task work, piece work and home work. The Bill proposes to extend to sub-contracting in an effort to deal with the full range of work and services (casualisation and so-called a-typical work). The Bill proposes (s 55 (4)(b)) that the Minister be entitled to regulate minimum increases as well.

  7. Section 55 (4)(o) and section 55(4)(p) New provisions Organisational rights (o) A sectoral determination may set a threshold of representivity in a sector to afford a trade union organisational rights (ito ss 12 and 13 of the LRA) regardless of its actual representivity at a specific workplace. Section 54(4)(p) value of labour tenants (p) Proposes to establish methods to determine the value of labour tenants’ rights of occupation of a farm.

  8. The ECC to set thresholds for representivity for organisational rights This provision aims to extend organisational rights to sectors which are difficult to organise: service workers, farm workers, domestic workers. • Potential competition with the CCMA? • Does this provision belong in the BCEA or in the LRA as it echoes s 19 of the LRA which grants limited organisational rights to unions on bargaining councils • No provision for one or more unions to combine to establish organisational rights (to avoid proliferation of unions)

  9. New section 55(8) Minister may make new sectoral determinations Sectoral determinations regulate employment in unorganised sectors. The current law prohibits sectoral determinations in respect of statutory councils which have made collective agreements. The proposed amendment entitles the Minister to make sectoral determinations for a sector which is covered by a registered statutory council (and even a bargaining council?) but where a collective agreement has not been concluded.

  10. Enforcement mechanisms – Chapter 10 The new regime seeks to stream line enforcement as this has been recognised as a weakness of the current system. Section 68 – Compliance Order This is a cumbersome process whose principal features focus on the role of the labour inspectors to: • secure undertakings • issue compliance orders • consider objections and appeals and applications to the Labour Court

  11. Undertaking or compliance order – Inspector discretion The proposed amendments seek to fast-track enforcement by granting an inspector a discretion whether to seek a written undertaking or to issue a compliance order. Whereas the current law provides that a labour inspector must endeavour to secure an undertaking, the proposed amendment to s 68(1) provides that a labour inspector “may endeavour to secure a written undertaking”. The new sub-section (3) provides that if an employer fails to comply with a written undertaking, the DG may apply directly to the Labour Court for an order directing compliance.

  12. Section 69 – Compliance Order Revisions Under the current law when a labour inspector issues a compliance order reference is made to an existing undertaking and the extent to which there is under-compliance or no compliance. This provision is to be deleted. The new sub-section (2A) provides that “A compliance order may, in addition, set out • The date by which the employer should serve any representations it may wish to make with the Department and the Labour Court; • The date on which, if the employer does not comply with the order, application may be made without further notice to the employer to have the compliance order made an order of the Labour Court in terms of section 73”.

  13. Repeal of Objections and Appeals to the DG The proposed compliance mechanism cuts out the role of the Director General to consider objections and appeals. Employer failure to comply may trigger an immediate approach to the Labour Court will be required to consider any employer representations. This places an enormous burden on the DoL to gets its compliance orders correct. The Labour Court will have to fashion procedures to deal with such applications.

  14. Section 70 – Limitations This section currently prohibits compliance orders if: • the parties are covered by a collective agreement directing arbitration; (b) the employee is a senior managerial employee or earns above the statutory threshold set (ito s6(3); (c) the employee has instituted legal proceedings to recover the outstanding amount; or (d) the amount has been payable for longer than 12 months before the employee lodged a complaint, or the date when an inspector first attempted to secure a written undertaking. The new s 70(c) provides that a compliance order can be issued if the proceedings have been withdrawn and s 70(d) removes reference to any written undertaking.

  15. Sections 71 and 72 Objections to compliance orders As part of the fast-tracking of enforcement provisions the provisions relating to objections to compliance orders that appeals to the Director General are to be repealed. Section 73 – Order made by the Labour Court These proposals regulate enforcement of compliance orders by the Labour Court by removing reference to any objection or appeal to the DG.

  16. The new section 73 (1) The Director General may apply to the Labour Court on the date specified in the compliance order in terms of section 69(2A)(b) or, with further notice to the employer on a subsequent date for a compliance order to be made an order of the Labour Court [in terms of section 158(1)(c) of the Labour Relations Act 1995] if the employer has not complied with the order [and has not lodged an objection against the order in terms of section 71(1)]. (2) [The Director General may apply to the Labour Court for an order… in terms of section 71(3) to be made an order of the Labour Court in terms of section 158(1)(c) of the Labour Relations Act, 1995, if the employer has not complied with the order and has not appealed against the order in terms of section 72(1)]. After considering any representations made to it, the Labour Court may issue an order in terms of sub-section (1) requiring-

  17. Labour Court Enforcement Orders The new section 73 empowers the Labour Court to issue an order directing • the employer to comply with any provision of this Act; • subject to section 70(d), the payment of any amount owing to an employee; • the payment of a fine calculated in terms schedule 2 of this Act”.

  18. Current enforcement of BCEA monetary claims: • Litigation in the civil courts or the Labour Court (section 77(3); or 2 By consolidating an unfair dismissal claim in arbitration or the Labour Court unless the amount has been outstanding for more than 1 year prior to the alleged dismissal (section 74 (2)).

  19. Extending period for claiming BCEA monies The proposed amendment to section 74(2) extends the period of the claim by providing that the claim can be consolidated unless: (i) The claim has prescribed; or (ii) A compliance order has been issued or enforced; or (iii) Other legal proceedings have been issued or enforced.

  20. Enhanced Labour Court jurisdiction Section 77 The Labour Court is to have jurisdiction to grant civil remedies in respect of matters which are criminal offences and strengthens its exclusive jurisdiction. Section 77 (1) - Subject to the Constitution and the jurisdiction of the Labour Appeal Court and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters in terms of this Act [except in respect of an offence specified in sections 43, 44, 46, 48, 90 and 92]. The Labour Court has exclusive jurisdiction to grant civil relief arising from a breach of sections 33A, 43, 44, 46, 48, 90 and 92”. Section 77(1A)

  21. Offences and Penalties Section 93 - Penalties have been increased.

More Related