Issued by Department of Labour
26 July 2000
Today is a very important day for me as the Minister of Labour. I am able to proudly say that we have fulfilled one of the commitments that the President made to the country: to review and amend our labour laws.
This is a long awaited day. Yet, when you read through the documentation that we will distribute today, you will realise that it has been well worth the wait.
I am proud to release the following Amendments Bills:
These amendments arise out of a significant and intensive process of consultation within government and with our social partners including representatives from the community constituency at Nedlac. And they arise from an internal review by the Department of Labour.
As a result, I believe not only do they address the concerns raised by social partners but they go far beyond that: they will make a significant contribution to good governance of the labour market.
You may attempt to label the amendments 'business friendly' or 'labour friendly'. I believe this would be a narrow minded approach. We have made a concerted effort to ensure that these amendments will effect a change for the better for employers and employees, for the employed and the unemployed, for large and small business, for the public and the private sector.
We have endeavoured through these amendments as I indicated in my Fifteen Point Programme, to: "improve the efficiency of the labour market and promote employment creation". In particular, the Programme states, "we will seek to review provisions that have unintended consequences on employment creation or are wrongly perceived to be detrimental to employment creation or the expansion of enterprises, new and old, domestic and foreign."
The amendments do not seek to overhaul our policy approach. Our consultation and review process mentioned earlier indicated to us very clearly that our policy fundamentals are sound but adjustments are needed in certain areas. The proposed amendments do not take us backwards or reduce the rights that workers have fought for over the decades.
These amendments demonstrate that government has the political will and commitment to align our laws to changing economic and labour market circumstances.
I believe that these amendments go a long way to:
I believe that as a package, these amendments will send a clear signal to local and foreign investors that we are seeking to create a labour market that is efficient and that is stable. Stability will only happen if labour market regulation appropriately balances the need of enterprises to operative efficiently and profitably and the needs of workers for protection. This is what we have sought to achieve.
Appropriate labour market regulation and the consequential labour stability and certainty that will result, is our best contribution to employment creation in this country. Employment creation built not on the false hopes that low wages will lead to more jobs, but employment creation built on the strong foundation of industrial policy, strong institutions and an enabling and supportive legal framework.
Nevertheless, you will find specific amendments which speak to the imperative to create jobs, inter alia in respect of the small business sector. For example we have increased the capacity of small businesses to influence the conditions of employment set at bargaining councils. We have removed the statutory premium for work performed on a Sunday since we want to enable growth in the tourism sector which is required to operate on Sundays.
The recent Global Report from the International Labour Organisation reached three important conclusions. The third one was that, and I quote: "Recognition by public authorities that the good governance of the labour market based on respect for fundamental principles and rights at work makes a major contribution to stable economic, political and social development in the context of economic integration, the enlargement of democracy and the fight against poverty."
With this in mind and because we believe that the protection of workers, is critical to create a stable labour relations environment conducive to investment promotion and employment creation, we have made amendments in this respect as well.
For example we have improved the accessibility of the CCMA to workers and reduced the possibility of abuse in such a situation. We have increased the protection of workers against being misrepresented or defrauded by 'fly by night' trade unions. We have amended our variation model in the BCEA so as to better protect vulnerable workers such as security workers and workers engaged in fishing. We have also extended the net of labour laws to cover workers who in law may be regarded as independent contractors but de facto are workers.
Overview of amendments
I would like to present a brief overview of the amendments that we are proposing.
Amendments have been made in four key areas:
Collective bargaining and bargaining councils
The review process has reinforced for me the central role of collective bargaining in improving conditions for workers and in giving them a voice in the workplace. In our situation, I remain convinced of the advantages of centralised collective bargaining. It creates uniformity, certainty and removes the burden from individual employers to negotiate wages and other conditions of employment each year at the shop floor.
Our amendments seek to improve our system of collective bargaining for both parties and non-parties. To non-parties, many of whom are small businesses, we are obliging bargaining councils to consult them before the Minister will extend these agreements to them. For parties, we are improving the mechanisms to enable them to enforce their collective agreements.
There are also amendments to speed up the process of establishing a rational framework of bargaining in the public service and enhance worker participation at an enterprise level through facilitating the establishment of workplace forums.
Dispute resolution by the CCMA and the Labour Court
We have introduced a first class dispute resolution system in South Africa. But that does not mean that there have not been 'teething problems'. These problems have been experienced not only by the institutions that we have set up, namely the CCMA and the Labour Court but also by employers and employees.
The majority of these teething problems can be addressed through experience, improved management and organisation. Nevertheless we have taken a number of bold steps in the amendments to:
This should all contribute to a more effective and efficient CCMA.
In respect of unfair dismissals, we have introduced a probationary period of six months during which time slightly different procedures apply and we have made it clear in the statute that employers do not have to conduct a formal inquiry before proceeding to the CCMA.
In respect of the Labour Court we have provided that Labour Court judges have to be judges of the High Court and would thus have life long tenure. This will enable the Labour Court to attract and retain suitable judges.
Rights and responsibilities of employers and workers in the event of retrenchments, transfers of business and insolvency
In the context of high unemployment, large numbers of retrenchments and high levels of insolvency, I believe that it is important to provide certainty to employers and employees as to their rights and obligations in such circumstances. Further, I believe the law should facilitate and encourage job retention and the genuine search for alternatives and put into law those parts of the Social Plan that require legislative effect.
With these objectives in mind as well as the requests of the social partners we have sought to propose amendments to both the Labour Relations Act and the Insolvency Act to:
Conditions of employment
Bearing in mind that we are still in the process of 'rolling out' the BCEA through the establishment of sectoral determinations for domestic workers, farm workers, workers on job creation schemes, we nevertheless are putting forward amendments to ensure that the law is more sensitive to the needs of small business and the imperatives of job creation, on the one hand and address the problems of casualisation on the other.
Our proposed amendments include to:
Amendments have also been proposed to improve the enforcement of the Act and to ensure that workers in atypical employment are protected by the Act.
Conclusion
We are publishing tomorrow in the Government Gazette (Notice R756, GG 21407), the three amendment Bills together with explanatory memorandums. These amendments are now open for public comment.
These amendment bills will also be tabled at NEDLAC for negotiation with the social partners.
I call on our social partners, on employers and employees to use this opportunity to enrich what we have already put on paper. Send us your views and comments. Participate constructively in the negotiations process in order that we arrive at a set of amendments that will make us all proud.
Finally, I would like to thank all those who have made these amendments possible, through their inputs during the review process and also the members of the legal drafting team, Puke Maserumule, Paul Benjamin, Dhaya Pillay and Andre van Niekerk.