The draft of the Employment Services Bill, which is aimed at eliminating labour brokers, is of such a nature that the true aim is unclear, independent trade union Solidarity head of litigation Philip Kruger tells Polity.
“Some of the provisions are probably unconstitutional and will have to be tested. It will also lead to uncertainty in the labour market, which will lead to a decline in labour-intensive investment in South Africa and, ultimately, to many job losses,” Kruger says.

Several amendments proposed by the legislator to the Basic Conditions of Employ-ment Act (BCEA), the Labour Relations Act (LRA) and the Employment Equity Act (EEA), and the draft Employment Services Bill were open for public comment until February 17 this year.

Kruger states that several of these changes could prove difficult for both employers and employees, and that some amendments have been received with more tolerance than others.

“Several breaches of the BCEA are now being criminalised. This is a welcome ruling from a trade union’s perspective, since it could force an employer to ensure that it complies with the law as it stands,” he argues.

Kruger says that among the breaches that will be criminalised will be forcing an employee to work for more than 45 hours a week without overtime pay, forcing employees to work more than ten hours of overtime a week or working without a meal interval, as prescribed by the Act, and not paying employees at least double for working on a Sunday or public holiday.

He adds that the proposed amendments to the BCEA also criminalise not granting an employee the minimum annual leave as prescribed, not granting an employee sick leave as prescribed, not granting an employee family responsibility leave and not paying an em- ployee severance pay.

Further, Kruger notes that the amendments will benefit fixed-term employees.

“Currently, employers repeatedly renew fixed-term contracts to avoid having to go through disciplinary processes to dismiss employees or to avoid giving the fixed-term employees the same benefits as permanent employees. The suggested amendments to the legislation will force employers to give every employee employed on a fixed-term basis the same bene-fits as a permanent employee,” he says.

Kruger adds that some of the new proposed provisions could place an administrative burden on companies to comply with the law. He specifically refers to the proposed provision that all vacancies that arise within a company, as well as the sensitive details of employees, which would include an employee’s employment history, curriculum vitae and personal details, be reported to the Department of Labour (DoL).

He also expresses concern over the effect of the substantial fines of up to 10% of yearly turnover if companies do not comply with the requirements set out by the EEA.

Kruger believes that government officials have essentially ignored the regulatory impact assessment (RIA) of the proposed new amendments and legislation as requested by government in July and August 2010.

He says that the RIA, which was tabled in September last year and the drafts, which were published in December, changed very little from the version drafted in mid-2010.

“Several aspects of the RIA document that are quite damning of the legislation and, at this stage, have been ignored by the legislator include the point made by the RIA that many jobs will be lost,” he adds.

Further aspects, Kruger says, include the uncertainty that will be created in the labour market that will lead to a drop in labour-intensive investment in South Africa, the large admin- istrative burden that will be placed on existing companies and excessive punitive measures for noncompliance with the legislation.

From the trade union’s perspective, Kruger says, one of the biggest challenges currently facing the labour and employment sectors includes protecting the interests of employees, as many employers disregard the BCEA and the LRA.

He notes that adding to the challenges are instances where complaints lodged by employees at the DoL are not properly or efficiently investigated.

Further, he says that the lengthy investigation period of these complaints points to an apparent shortage of labour inspectors, which also poses significant challenges.