Scene set for early major battle

South Africa’s labour scene could become a major battle ground early in the new year, with only five weeks to go for comments on intended sweeping amendments to four key labour laws announced at the end of the final cabinet meeting of 2010. While organised labour has threatened the mother of all disputes, labour brokers mooted the possibility of a Constitutional Court battle.

Four bills released for public comment on Friday 17 December by the new minister of labour, Nelisiwe Oliphant, include measures to enhance job security, crack down on child labour, all but ban labour brokering and dramatically increase state surveillance of the national labour scene. The deadline of 17 February for comments is only six weeks away.

During the period of public comment, the Department of Labour will hold public consultations around the country, while at the same time tabling them for discussion at the National Economic Development and Labour Council.

Some of the measures buck international trends, according to experts. The aim is to radically redesign the work environment, enforcing equal pay for equal work and setting up a state employment agency to which every private-sector job vacancy

and every new hire will have to be reported.

Among the proposals are penalties of up to 10% of a company’s turnover for non-compliance and minimum jail terms of 12 months for employers who violate some of the proposed rules. If eventually promulgated some commentators fear that it will represent a massive new administrative burden on business and government.

The cost implications of the proposed measures will largely be shouldered by the Unemployment Insurance Fund (UIF), the Compensation Fund and state contributions.

Although the measures aimed at labour brokering initially attracted the most attention, the scope of the proposed amendments is much wider. The four acts with the main proposed amendments are:

Labour Relations Amendment Bill. In regulating contract work  a proposed amendment aims to stop the practice of repeated contracting for short-term periods. The onus will be on employers to justify the use of short-term or fixed-term contracts, in place of contracting employees on a permanent basis.

Addressing the issue of labour broking, the Labour Relations Amendment Bill proposes to repeal section 198 that deals with Temporary Employment Services in the Labour Relations Act (no 66 of 1995)  and replacing it with a new Employment Services Bill which will address both Private and Public Employment Services. The Bill also introduces a new definition of employer and employee to give greater certainty to the employment relationship.  As a result of the new definition of employer, no temporary employment service will be able to be the employer of workers that it places in work.

The bill also propose a range of amendments to the provisions dealings with the Commission for Conciliation Mediation and Arbitration (CCMA).

Basic Conditions of Employment Amendment Bill. Proposed amendments will give the minister the power to prescribe the representative thresholds of a trade union to have the organisational rights of access to employer premises. This is intended to apply to situations where unionisation is difficult but where a more flexible threshold may facilitate unionisation within a sector or area.

Further amendments propose that the minister could set increases to actual wages instead of minimum wages for vulnerable workers in sectoral determinations.

A proposed enabling provision in the Basic Conditions of Employment Act will provide the minister with the power to determine the conditions of labour tenants.

Amendments are also prooposed to align the Basic Conditions of Employment Act with South Africa's international law obligations in terms of the International Labour Organisation Convention (No. 182) on the Worst Forms of Child Labour.

Contraventions of certain provisions in monitoring and enforcement of the Act are criminalised. which will enhance the effectiveness of the inspectorate.

Employment Equity Amendment Bill. A new clause is introduced which seeks to prohibit abusive practices by ensuring that employees who work for the same employer receive the same pay as other employees doing the same or substantially the same work. This amendment is aimed at ensuring compliance with the International Labour Organisation's conventions that deal with discrimination.

To strengthen the enforcement mechanisms of the Act, amendments are proposed which empower the director-general to impose fines on non-complying employers as a percentage of the annual turnover.

Employment Services Bill. This  seeks to provide a legal status for Employment Services after the transfer of the Skills Development functions to the Department of Higher Education and Training (DHET). It also provides a legal status for the Sheltered Employment Factories administered by the department and Productivity SA.

The bill defines the role and core functions of public employment services, including governance arrangements via an Employment Services Board.

New regulations of employment of foreign workers, are also proposed

Provision is made for the registration and licensing of Private Employment

Some of the proposed amendments  are widely expected to encounter strong opposition, and it could be many months before they are tabled in parliament. At their final news conference of 2010 Cosatu’s general secretary Zwelinzima Vavi said about the labour brokering industry: “We want a total ban of the system that has condemned so many to new slavery by what (has become) known as human traffickers," he said.

"We call on workers to use their rest to re-energise themselves and be ready for a mother of all battles in 2011," setting the scene for what can become a major battle ground in the months ahead.