PROPOSED LABOUR LAW AMENDMENTS: NO PREMIUM FOR SUNDAY WORK

The Department of Labour has published draft amendments to the Labour Relations Act, the Basic Conditions of Employment Act, and the Insolvency Act. While many of the proposed changes would correct ambiguities in the legislation and facilitate implementation, some provisions may diminish protection for lower-paid or vulnerable workers. Members of the public have until 8 September to comment on the draft amendments.

Legislative history

The Labour Relations Act of 1995 (LRA) and the Basic Conditions of Employment Act of 1997 (BCEA) are two of the main laws shaping labour relations in the democratic era. The LRA:

• entrenches workers' rights to organise and to strike,
• recognises the right of employers to resort to lock-out in certain situations,
• establishes a simplified dispute resolution process involving the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court,
• promotes sectoral collective bargaining, and
• prohibits unfair dismissal.

The BCEA regulates the working week, sets minimum standards for leave, establishes procedures for terminating employment, and prohibits child labour and forced labour. (The Insolvency Act specifies procedures that must be followed when a business becomes insolvent.)

This legislation has been under continuous review by the Department of Labour. It also came under scrutiny at the October 1998 Presidential Jobs Summit. In June 1999, the Minister of Labour published a fifteen-point programme of action identifying key challenges facing the Department and indicating how government intended to address those issues. That document highlighted a number of areas for legislative reform.

Provisions

The proposed package of amendments is extensive. Many of the changes are of a technical or clarifying nature, intended to improve implementation. In general, such changes would be beneficial. For example, amendments to the LRA would:

• require notice of the termination of a collective agreement to be given in writing;
• compel an employer who does not wish to disclose information requested by a union in conjunction with certain dismissal negotiations to show the irrelevance of that information;
• provide for the accreditation of labour consultants; and
• expedite the conciliation/arbitration process and facilitate enforcement of decisions.

Areas of concern

The Department of Labour says that many of the amendments are meant to improve protection for lower-paid or vulnerable workers. In some cases, however, the proposed changes may expose vulnerable workers to greater risks.

Sunday work

The BCEA currently gives Sundays special status in two ways. First, it requires that an employee's mandatory weekly 36-hour rest period must include Sunday, unless otherwise agreed. Second, it says that employees who work on Sunday must be paid a higher rate.

The amendments would eliminate both of these provisions. The mandatory rest period would remain, but no preference would be given to Sunday. Employers would not have to pay more for Sunday work. The Department argues that the existing rules place an unfair burden on industries that operate around the clock--emergency services, hospitality, etc. In practice, collective agreements often override the Sunday work rules. Furthermore, they say that giving preference to Sundays could be a violation of the constitutional right of religious freedom.

Critics have voiced concern about the impact the change would have on workers who are not protected by collective agreements. They also point out that eliminating the preference for a Sunday rest period will diminish the likelihood that working parents will be off at the same time. Specific sectoral needs should be met in ways that do not undermine family life generally.

Variation of core rights

The BCEA also identifies a set of "core" rights--including a 9-hour day and a 45-hour working week--which cannot be overridden in any circumstances. The amendments would remove this protection, allowing a collective agreement or a sectoral determination to vary these core rights. The Department's rationale for this change is similar to the sectoral argument around Sunday work: these rigid rules are inappropriate for some workers, especially in maritime industries.

Probationary period

The LRA provides a less formal and rigorous procedure for the dismissal of a worker during an initial probationary period, but the length of that period is not fixed. The amendments would set this period at six months. An amendment to the BCEA would also allow an employer to dismiss a worker with only one week's notice during the first six months of employment. (Currently, two weeks notice is required after the first month of employment in most cases.)

Definition of "employee"

The LRA and BCEA currently exclude independent contractors from the definition of "employee" and, thus, from the protections they offer. "Independent contractor" is not defined, however. Some employers have attempted to evade their responsibilities under these laws by defining certain workers--particularly vulnerable part-time, causal, or home-based workers--as independent contractors. A new paragraph in both laws would provide clearer criteria for determining if a worker is an "employee" or not. This change should be welcomed, but churches should study the clause in order to assess its implications for members of the clergy in particular.

For further information and action

The public is invited to comment on the draft bills until 8 September 2000. Comments should be addressed to Stephen Rathai, Dept of Labour, Private Bag X117, Pretoria 0001 (fax: 012 309 4709). Please copy any comments you make to the Public Policy Liaison Office, or contact us for more information.