The BCEA and Wage Act need to be revised for many reasons. These include:
3.1 The approach of these laws to employment standards is rigid and outdated, particularly in respect of working time.
3.2 There are arbitrary differences in conditions of employment for different groups of workers.
3.3 Vulnerable workers are inadequately protected.
3.4 The Wage Act does not apply to farm and domestic workers.
3.5 Their enforcement through criminal cases is ineffective and does not encourage compliance with labour standards.
3.6 The Acts need to be revised to be consistent with the Constitution and the new Labour Relations Act (1995).
4.1 The Green Paper's starting point is the need to balance the protection of minimum standards and the requirements of labour market flexibility.
4.2 To achieve this, the Green Paper proposes the concept of 'regulated flexibility'. This has two main aspects:
4.2.2 Rules and procedures to vary these standards through collective bargaining, sectoral determinations for unorganised sectors and administrative variations (exemptions).
The principal aspects that the Green Paper has borne in mind in proposing revisions to employment standards are:
5.1 Setting appropriate standards for current employment conditions. This includes modernising standards, bringing them in line with the Constitution and the LRA (1995) and revitalising the Wage Board to develop appropriate standards for employees in unorganised sectors.
5.2 Allowing greater labour market flexibility through removing inappropriate restrictions, enabling arrangements to allow for the more productive use of working time and providing for variation through collective bargaining.
5.3 Promoting collective bargaining, as a means of varying employment standards.
5.4 Supporting employment creation by ensuring that proposals are compatible with employment creation and avoiding any consequence that may destroy jobs.
5.5 Encouraging compliance with employment standards through the introduction of more effective enforcement mechanisms.
5.6 Promoting a healthy work environment by minimising the potential negative effects of the arrangement of working time on the health and safety of workers and the public.
5.7 Reducing administrative burdens on employers.
5.8 Establishing a clear set of rights by developing a simpler statute drafted in plain language.
5.9 Addressing gender discrimination and giving effect to South Africa's obligations under the Convention on the Elimination of all Forms of Discrimination Against Women.
New employment standards legislation should (like the new LRA) cover all employees except the security and intelligence forces. There may be certain additional exclusions. The Minister should have the power to exclude higher paid workers as well as to vary the application of certain provisions of the Act to the public sector.
8.1 There are increasing numbers of part-time workers, temporary workers, workers supplied by labour brokers, home workers and contract workers in the labour market. They are particularly vulnerable to exploitation and not covered adequately by labour legislation.
8.2 To improve protection for these workers, it is proposed that:
8.2.2 Employers who engage labour contractors are jointly liable for violations of employment standards.
8.2.3 Employment standards can be extended to contract workers.
9.1 To allow for greater labour market flexibility, the Green Paper identifies the extent which issues can be varied. It is proposed that employment standards can be varied in the following ways:
9.1.2 by wage determinations.
9.1.3 by administrative variation (exemptions).
9.1.4 in individual contracts of employment.
10.1 The Department is committed to the goal of reducing hours of work to 40 per week and to a framework that enables more flexible arrangements of working time. This will require a comprehensive and integrated approach involving legislation and national agreements.
10.2 The following package of proposals is put forward for debate:
10.4 Night work should be regulated. It is proposed that a 20 per cent premium for night work should be introduced and that special steps be taken to protect the health of night workers.
10.5 The present annual leave entitlement of two weeks is increased to three weeks which is in line with the practice of most employers and with international standards.
10.6 In regard to public holidays, it is proposed that the new legislation be brought in line with the Public Holidays Act which allows for the exchange of a public holiday with another day.
10.7 The right to paid sick leave at current levels is retained, while changes are introduced to allow for greater flexibility to bargain collectively on the administration of sick leave.
11.1 Workers are entitled to four months maternity leave during which her security of employment is protected.
11.2 Women may not work for six weeks after the birth of a child unless agreed to by a doctor.
11.3 A woman employed in night work or work which could be harmful to her or her child is entitled to suitable alternative work during pregnancy and a year after the birth of her child.
11.4 Workers with more than one year's service are entitled to three days paid paternity or child care leave during each year.
12.1 Recent surveys such as the October Household Survey indicate that as many as 200,000 children or 4 per cent of children between 10 and 14 could be engaged in child labour.
12.2 There needs to be an integrated strategy linked to the provision of free basic education and addressing poverty to combat child labour.
12.3 Children below 15 should be prohibited from working unless a Ministerial exemption is obtained. Exemptions should only be granted if the work does not place the child's physical and mental well being at risk.
12.4 Children between 15 and 18 should not be permitted to perform work that is hazardous for that child's age or harmful to their health.
13.1 The provisions in the Labour Relations Act (1995) on unfair dismissal and individual unfair labour practices (excluding those relating to employment equity) should be transferred to the new legislation.
13.2 A four weeks notice period for all workers is proposed.
13.3 Workers should have a right to receive written particulars of their employment.
13.4 Employers should not be able to discriminate against workers who exercise rights conferred upon them by the legislation.
14.1 An integrated enforcement system is proposed which will move away from the adversarial system and improve compliance with labour legislation.
14.2 Proposals include:
14.2.2 Workers to be able to use the Small Claims Court, Labour Court or Commission for Conciliation, Mediation and Arbitration to institute claims against employers.
14.2.3 Retaining criminal sanctions for serious offences such as child labour and repeated breaches.
15.1 Labour statutes impose different administrative obligations upon employers, some of which overlap.