DRAFT LABOUR RELATIONS AMENDMENT BILL
DRAFT BASIC CONDITIONS OF EMPLOYMENT AMENDMENT BILL

Summary

The SACC responds to proposed amendments to the Labour Relations Act and the Basic Conditions of Employment Act. We welcome a number of aspects of the draft bills. However, we object strongly to provisions allowing the variation of core rights and removing the preference for Sunday as a weekly rest period. We raise further concerns about the conditions for dismissal during a probationary period and about the introduction of arbitration fees and related CCMA costs. Finally, we note the labour movement's opposition to the proposed changes to sections 32 and 189 of the LRA and urge that these be addressed fully before a final bill is tabled.

1.0 Introduction

1.1 The South African Council of Churches (SACC) is the facilitating body for a fellowship of 24 Christian churches, together with one observer member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.

1.2 The SACC welcomes the publication for comment of draft amendments to the Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA). This legislation is central to the transformation of the labour market in the democratic era. Any adjustment of these carefully negotiated laws demands broad public consideration and debate.

1.3 We applaud the Minister's desire to improve the situation of vulnerable workers by extending the scope of the protections and benefits these laws offer. We appreciate the need to "fine tune" the legislation to correct ambiguities in the current language. We also endorse the notion of ensuring that labour market regulations do not unnecessarily impede job creation--provided the jobs created are sustainable, offer fair wages and working conditions, and do not jeopardise the livelihood of other workers.

1.4 However, we are not convinced that the proposed amendments will achieve these objectives in all cases. We are especially concerned that, in an effort to address negative perceptions about our labour market, we don't forget to examine the accuracy of those perceptions. Nor should we neglect the needs and interests of individual workers who are often most vulnerable to changing employment patterns resulting from labour market liberalisation.

1.5 We support a number of aspects of the draft bills. In particular, we endorse the changes to the LRA that would:

• Place the onus on an employer to demonstrate irrelevance when refusing to disclose information requested by a union pursuant to dismissal negotiations contemplated in section 189;
• Permits candidate attorneys to argue before the Commission for Conciliation, Mediation and Arbitration (CCMA);
• Enhance the capacity of the Labour Court to adjudicate dismissal claims arising out of operational requirements by allowing appointment of experts and assessors to advise the court on the validity of economic assumptions underlying the dismissals; and
• Prevent labour consultancies from registering as trade unions or employers' organisations for opportunistic purposes.

1.6 In addition, we support the inclusion in both Acts of a more detailed list of criteria for determining whether or not a worker is an "employee". We recognise the need to distinguish more clearly between "employees" and "independent contractors" to protect vulnerable workers from being excluded from the protection offered by labour legislation. We also endorse the suggestion, contained in the memorandum explaining the amendments to the BCEA, calling for the preparation of a Code of Good Practice to clarify further this distinction. We hope that, in drafting such a Code, the Minister will consult with church leaders to ensure that it addresses issues unique to the religious sector, such as the employment status of clergy.

1.7 At the same time, we have reservations about the way in which the proposed amendments handle a number of issues. These include:

• Sunday work;
• Variation of core rights;
• Probationary period; and
• Arbitration fees.

1.8 Furthermore, we recognise that the LRA and BCEA embody an historic social compact emerging out of the struggle against apartheid and racial capitalism. The provisions of the original Acts were vigorously contested, and the resulting language represents a careful balancing of competing claims. We would therefore urge government to give full consideration to the legitimate interests of all stakeholders and to refrain from enacting changes that might upset this balance or contribute to a deterioration in labour relations.

2.0 Sunday work

2.1 Section 15 of the BCEA recognises the right of workers to a weekly rest period of at least 36 consecutive hours. Currently, two provisions of the BCEA give preference to a Sunday rest period. First, Section 15(1)(b) specifies that the weekly rest period must include Sunday, unless an employer and employee agree on an alternative period. Second, Section 16 requires an employer to pay a premium wage for time worked on a Sunday (double time or time and a half, depending on whether or not the employee ordinarily works on a Sunday).

2.2 The draft BCEA Amendment bill proposes to strip Sunday of its special status by abolishing both of these provisions. Employers would have no incentive to give workers Sundays off. While workers could protect Sunday leave through mutual agreement or bargaining with an employer, they would no longer have a right to Sundays off. Indeed, employers would be able to offer Sunday leave as a "concession" for which they might seek a corresponding concession from workers.

2.3 The SACC strongly opposes the complete elimination of a statutory preference for Sunday as the usual weekly rest period. Quite apart from its religious significance for the majority of South Africans, Sunday traditionally serves as a "family day" in many households. If the preference for Sunday leave is removed, it will become increasingly difficult for working parents to spend time with their spouses and children without work and school schedules intervening. In households where both parents are working, the problem could be even greater. Although family configurations have changed dramatically in contemporary society, the family continues to play a crucial role in the moral development of children and the transmission of values. Strong families are an important bulwark against the disintegration of our social fabric. There are already a great many social and economic pressures on South African families. We believe work patterns should not pose further obstacles to healthy family life.

2.4 Similarly, the revival of spiritual life must play a pivotal role in the moral restoration of our nation. While we respect and celebrate the religious diversity of our multi-cultural society, we also recognise that roughly three-quarters of our people profess to be Christians. For the overwhelming majority of Christians, Sunday is a day of worship and spiritual renewal. We believe that labour law should encourage, not obstruct, a vital and healthy spiritual life. The protection of Sunday as a day of rest is a practical way of facilitating religious practice, given the demographics of our nation. Provided the law does not prevent people of other faiths from negotiating leave patterns that coincide with their own religious beliefs and practices, a statutory preference for Sunday leave is an acceptable method of maximising benefits for the population as a whole without restricting non-Christians' freedom of religion and worship.

2.5 We acknowledge that in certain economic sectors--such as the hospitality industry, mining, and retail sales--there is a greater need to maintain continuous operations throughout theweek. However, the law already enables employers in these sectors to negotiate suitable working patterns with their employees. Indeed, the memo accompanying the draft bill acknowledges that such arrangements have become common features of collective bargaining agreements in these industries. This is not a sufficient reason to "regularise" Sunday work in all sectors, given the potential damage that could be done to family and spiritual life.

3.0 Variation of core rights

3.1 The BCEA identifies a number of fundamental or "core" rights that the Minister of Labour may not be vary either by a variation determination or by sectoral determination. These include such standards as the maximum length of the working day, the maximum length of the working week, minimum leave requirements, and prohibitions on child and forced labour. The draft BCEA Amendment bill would repeal sections 50(2) and 55(6) of the BCEA in order to allow the Minister to vary any condition of employment, including these core rights.

3.2 We strongly oppose these amendments. Once again, we appreciate that conditions in certain industries present unique obstacles to the satisfaction of these requirements. However, we do not believe that this represents a sufficient reason to grant blanket powers to the Minister to vary any employment condition in any sector. These rights represent some of the key gains won by workers in the democratic era. They offer critical protections for all workers, but especially for vulnerable workers who do not enjoy the additional protection of trade union representation. They should not be eroded any more than is absolutely necessary given the realities faced in particular sectors.

3.3 If it is considered essential to introduce a measure of flexibility to accommodate the needs of certain industries (such as the maritime industry, where sailors are continuously employed while at sea, even though they are not constantly on duty), then we would prefer to see this done through narrowly and clearly defined sectoral exclusions. Rather than granting sweeping powers to the Minister to vary any employment condition in any industry, the Minister could be empowered to issue sectoral or variation determinations affecting specific core rights in certain designated sectors only. These rights and sectors should be identified in regulations, and the Minister should be required to gazette a list of the relevant sectors and the scope of the variation allowed in each. The need for public comment and oversight could be recognised by giving NEDLAC, the Portfolio Committee on Labour, or some other appropriate body the right to approve or veto this list.

4.0 Probationary period

4.1 The current Code of Practice in Schedule 8 of the LRA entitles an employee to hire an employee for an initial probationary period in order to evaluate the employee's ability to perform the duties for which she or he was hired. However, there is not currently any clear guidance in law concerning the usual length of the probationary period or the procedural and substantive requirements for fair dismissal during this period. The BCEA currently requires an employer to give one week's notice of dismissal during the first four weeks of employment and two weeks notice during the remainder of the first year.

4.2 The draft bills propose amendments to both section 188(2) of the LRA and section 37(1) of the BCEA that, read with Schedule 8 of the LRA, would effectively establish a standard six-month probationary period (which could be shortened by mutual agreement between the employer and employee). Section 188(2) of the LRA would be amended to stipulate that, in the first six months of employment (or less, if agreed) a dismissal need only be shown to be procedurally fair to be recognised as a fair dismissal. A further clause defines procedural fairness to mean allowing the employee to respond (with the assistance of a trade union representative or co-employee, if desired) to any allegation made against her or him by the employer. Meanwhile, amendments to section 37(1) of the BCEA would reduce the notice period to one week in the first six months of employment.

4.3 While we support in principle the notion of probationary periods and agree that the terms of such periods must be more clearly spelled out, we are concerned that this formulation offers too little protection to workers. First, we are uncomfortable with the abandonment of any requirement for substantive fairness for dismissals during a probationary period. Second, we believe that a six month probationary period may be too long in many instances. The reduced notice period coupled with the minimal criteria for fair dismissal during this six month period may invite employers to effectively "casualise" some positions by hiring workers as needed for short periods, then taking advantage of the easy terms for dismissal before the probation period expires. We would propose that the usual probation period be three months, and that this also be the duration of the period during which an employer must give one week's notice.

5.0 Arbitration fees

5.1 A number of proposed amendments to the LRA would greatly enhance the CCMA's ability to charge fees. An new section 123(2A) would empower the CCMA to assess a fee for arbitration, something it is presently prohibited from doing. An amendment to section 138(10) would expand the CCMA's power to issue cost orders in arbitration. Changes to section 142(7) would make any party who requests the CCMA to subpoena a witness liable for payment of witness fees.

5.2 We appreciate the reasons given in the memorandum for all three of these amendments. We agree, for instance, that where the CCMA is asked to conduct protracted arbitration involving highly-paid executives, there is a strong case for the Commission to be able to recover costs. Similarly, the expansion of the Commission's power to make cost orders is intended to discourage parties from bringing frivolous disputes to the CCMA or refusing to take part in conciliation.

5.3 However, we are also concerned that such fees might deter those who are least able to pay--and, perhaps, most in need of the justice offered by the CCMA--from pursuing their grievances. We endorse the principle of introducing a sliding scale for arbitration fees. We trust that this will be steeply progressive and that there will be ample opportunity for public comment on the proposed scale.

5.4 We are somewhat more anxious about cost orders and witness fees. Some people who press ahead with disputes which the Commissioner might consider frivolous or vexatious do so not with malicious intent, but out of a strong sense of grievance. These applicants are also likely to be relatively poor and have limited knowledge of or access to alternative ways of achieving satisfaction. Imposing costs would be an inappropriate method of deterring such people. While we recognise that cost orders are discretionary, the criteria set out in the proposed amendment to section 138(10) do not seem to account for such situations. Similarly, we would propose that the amendment to section 142(7)(b) make provision for the Commission to continue to cover witness fees where the party requesting the subpoena is unable to pay.

6.0 Conclusion

6.1 In addition to these concerns, we are aware that the labour movement is strongly opposed to several key amendments, especially the changes to sections 32 and 189 of the LRA, dealing with the extension of collective agreements to non-parties and dismissal for operational requirements, respectively. While these are provisions on which we do not feel qualified to comment in detail, we are concerned that there appears to have been insufficient consultation and are alarmed at the possible consequences of a protracted conflict between trade unions and the government on these matters. We therefore urge the Department to do all in its power to resolve these differences in a manner which more adequately protects the interests of all the parties concerned before pressing ahead with this important legislation.