Employment Law Amendments
We appear to have some certainty as to when the amendments to the proposed labour laws, including the Labour Relations, Basic Conditions of Employment, Employment Equity and the newly tabled Public Employment Services Bills, will be passed. It was announced on 30/01/13 that the amendments were expected to be finalized by the end of November this year.
Whilst the public comment hearings have been completed in relation to the Labour Relations Amendment Bill and the Basic Conditions of Employment Amendment Bill and these are undergoing legal and constitutional scrutiny, the Employment Equity Amendment Bill and the Public Employment Services Bill are expected to undergo public hearings earlier this year.
Some of the more important issues to look out for with the Employment Equity Amendment Bill:
- The definition of “designated groups” has been revised to ensure that beneficiaries of affirmative action in terms of Chapter 3 (Affirmative Action) are limited to persons who were citizens of SA before April 1994, or would have been entitled to citizenship but for the Apartheid laws, and their descendants. Therefore the employment of foreign nationals, or who had become citizens after April 1994 cannot assist employers to meet their affirmative action targets.
- The amendment also seeks to clarify that discrimination is not only permitted on a ground listed therein but also “on any arbitrary ground”. This would be consistent with section 187(1)(f) of the Labour Relations Act that prohibits discriminatory dismissals. Perhaps the most controversial is the introduction in section 6(4) of a new form of unfair discrimination. This is aimed at regulating situations where different employment terms and conditions are applied to different employees who do the same or similar work or work of equal value. Therefore unless an employer can show that differences in wages or other conditions of employment are in fact based on fair criteria such as experience, skill, responsibility, such differentiation would constitute unfair discrimination.The Minister is empowered in section 6(5) to publish a code of good practice dealing with criteria and methodologies for assessing work of equal value.
- At present, all unfair discrimination claims fall within the exclusive jurisdiction of the Labour Court. It is now proposed that section 10(6) should be amended to allow parties to the dispute the option of referring the dispute for arbitration in the CCMA under the following circumstances:
- if the employee’s cause of action arises from an allegation of unfair discrimination on the grounds of sexual harassment;
- employees earning below the earnings threshold (currently R183 000) will be entitled to refer any discrimination claim;
- both parties consent thereto.
It is further proposed that a person affected by an arbitrator’s award in the above cases may appeal to the Labour Court.
- It is proposed that the provisions regulating the onus of proof in discrimination claims be consistent with the approach adopted in the Equality Act. Therefore,
- if unfair discrimination is alleged on one of the listed grounds, then the employer must prove that such discrimination (a) did not take place as alleged; or (b) is rational and not unfair (or is otherwise justifiable).
- if unfair discrimination is alleged on an arbitrary ground, the complainant must prove that (a) the conduct complained of is not rational; (b) the conduct complained of amounts to discrimination; and (c) the discrimination is unfair.
- Regarding affirmative action, the Department of Labour would now have more powers to fine companies who fail to prepare or implement their employment equity plan. The quantum of the fines would be significantly increased and could also be determined by making reference to the employer’s annual turnover. For example, where there was no previous contravention, whilst previously the fine was R500 000 it is now R1 500 000; or the greater of R1 500 000 or 2% of the employer’s turnover; in the case of a previous contravention in respect of the same provision, previously R600 000, now R 1 800 000; or the greater of R1 800 000 or 4% of the employer’s turnover; in the case of 4 previous contraventions in respect of the same provision within 3 years, whilst previously the fine was R900 000, it is now R 2 700 000; or the greater of R2 700 000 or 10% of the employer’s turnover.
- Lastly, again regarding affirmative action, employers must take note that as a consequence of the introduction of section 6(4), section 27 is proposed to be amended to provide for both income differentials and discrimination. Therefore in the same way as where disproportionate income differentials are reflected, where unfair discrimination by virtue of a difference in terms and conditions of employment contemplated in section 6(4) are reflected, the employer has the same obligation to take measures to progressively reduce such differentials.
The draft Public Employment Services Bill is an initiative by government to set up a public “employment services agency” and to provide for the registration and regulation of private employment services agencies. These agencies are not labour brokers but rather institutions that will provide job seekers with certain services such as matching job seekers with available work opportunities, registering job seekers, job vacancies, and other employment opportunities.
All material subject to our Legal Disclaimers.