12 MARCH 1998
On 17 November 1997, the Basic Conditions of Employment Bill was passed by Parliament. The legislature of South Africa brought into being a new set of basic conditions of employment, extended basic conditions to many more workers, revolutionised the enforcement system for basic conditions and created an enabling environment for greater labour market efficiency.
The Act needs to be promulgated to be put into effect. The Department will be promulgating the Act in two phases. The first phase will happen on 21 March and the second phase during the second half of the year between August and October.
In the first phase the chapters on child labour, the Employment Conditions Commission and sectoral determinations as well as the provision on the earnings threshold for working time will be promulgated. In the second phase the majority of the substantive changes in working conditions will be promulgated.
I will now look at the different provisions that are to be promulgated next week and then turn to the reasons why the rest of the Act will only come into effect during the second half of the year.
Child Labour
The chapter on child labour is being brought into effect now for a number of reasons. Firstly, it is practically possible to bring this chapter into effect before the others because unlike the other chapters, it relies on the existing enforcement system of the criminal courts. To enforce the other chapters, a new enforcement system still needs to be put into place.
Secondly, there is a glaring human rights gap at present in relation to child labour. There is no mechanism to prosecute employers employing children. There is increasing evidence of child labour, especially in agriculture, and the Department of Labour can do nothing to stop it.
Thirdly, the issue of child labour is gaining international prominence and following on from the International Conference on Child Labour in Norway last year, an international Agenda for Action to eliminate child labour world wide has been adopted.
One aspect of this international campaign is a Global March against Child Labour. The Africa leg of this march starts in Cape Town on 21 March. The 21st of March is also Human Rights Day. Are these not good reasons for the Department of Labour to choose 21 March as the appropriate day to promulgate the child labour chapter? Child labour is a very important human rights issue.
The chapter on child labour sets 15 as the minimum ages of employment and protects children between 15 and 18 from hazardous employment. The only exemption to the minimum age is in the performing arts industry. The Department of Labour has already begun work on a sectoral determination to protect children in this sector.
ECC and Sectoral Determinations
The other chapters to be promulgated on 21 March are those relating to the establishment of the Employment Conditions Commission (ECC), that body set up to advise the Minister on basic conditions and particularly on the setting of sectoral determinations for certain sectors, and the chapter on sectoral determinations.
The promulgation of these chapters will assist with the implementation of the rest of the Act as well as ensure a smooth transition between the Wage Board and the Employment Conditions Commission.
I have already approached NEDLAC for nominations for the ECC and hopefully will be able to make an announcement shortly on the members of the ECC.
Earnings Threshold
Finally, the provision on the earnings threshold is to be promulgated. This provision is an enabling provision for the Minister to request the ECC to advise him on what would be an appropriate earnings threshold for the chapter on working time. The Minister, on the advice of the ECC, then makes a determination identifying above which wage a worker can be excluded from the provisions of this chapter including the overtime rate, pay for work on Sunday and so on.
This determination needs to be made as soon as possible so that employers and employees can be informed and adjust their contacts of employment or agreements to be in line with the Act when it comes into effect.
The second phase of promulgation
The rest of the Act, including the substantive conditions of employment, will be promulgated in the second half of the year. This is because a number of steps need to be taken both by us and the social partners for the effective implementation of the Act.
The major steps include:
Since most collective bargaining occurs between April and September (the 'bargaining season'), it would be undesirable to promulgate the remainder of the Act until after this period. Employers and workers are urged nevertheless to become familiar with the provisions of the Act and make any changes that are necessary.
It is anticipated that the major provisions that will need to be altered relate to the increase in the overtime rate from 'time and a third' to 'time and a half', the reduction in hours from 46 to 45 in some sectors and the notice period for termination of service.
To assist the social partners, the Department will be running an education and information campaign at national and local levels.
This investigation is now underway and consists of two parts. Firstly, Ntsika, the small business promotion agency linked to the Department of Trade and Industry, will do an impact assessment of Act on small business.
This impact assessment, which includes a large number of consultations and interviews with small employers and their associations, will then be given to a Ministerial Task team who has been asked to make recommendations to me on the following aspects:
The Ministerial Task Team consists of the following people:
It is anticipated that this investigation will be completed by April.
This will involve the development on an enforcement policy - for example when are the maximum fines imposed, what level of inspectorate imposes the fines and so on - as well as the drafting of regulations and forms and the training of all labour inspectors.
Contact Samantha Henkeman on 083-4592041 or Tel: (012) 309-4443, Fax (012) 309-4096