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Speech by the Minister of Labour Mildred Oliphant at the launch of Workers

by Lloyd Ramutloa last modified 2017-05-02 12:47

25 April 2017

 

May month is workers month, the focus on workers’ rights and responsibilities should therefore not come as a surprise.

 

We have chosen the 2017 workers month to take stock and celebrate how far we have come in our quest for social justice through labour relations dispensation. We also want to use the workers month to raise awareness of the rights and responsibilities of workers as enshrined in our labour laws.

 

This we decided to do, because of the realization that in most instances, the workers do not fully grasp and leverage the key historic milestones in the various pieces of our labour laws. 

 

 

Our points of reference, which informs the character of our labour laws, is best captured in The Freedom Charter, Articles 23 and 25 of the 1948 United Nations’ Declaration of Human rights; the ILO Co-Conventions and of course Section 23 of the South African Bill of rights.

 

What is to be done takes the queue from the ANC election manifestos, the 2009 and 2014 manifestos are the cases in point in this instance.

 

Measured against the 1948 United Nations Declaration of Human Rights; the 1955 Freedom Charter, the 1996 SA Constitution and the 2009 and 2014 ANC election Manifestos, Our labour laws will score a 100% mark.

 

Our labour laws tick all the right boxes on all fronts and these calls for celebration by none other than the workers themselves.

 

You are welcome to compare the spirit and the letter of International Conventions, the Freedom Charter and the ANC manifestos, against the salient features of our labour laws, and you will arrive at the same conclusion and that is “the mission has been accomplished”. What remains to be done, is ensuring that the benefits of these milestone achievements are enjoyed fully by the workers. 

 

2009 Manifesto focuses on the 5 Freedom Charter core demands around promotion of decent work as defined by the ILO namely;

 

There shall be work and security.

a)     All who work shall be free to form trade unions, to elect their officers and to make agreements with their employers.

b)    Workers shall draw full unemployment benefits

c)    Men and women of all races shall receive equal pay for equal work.

d)    There shall be forty hour week, a national minimum wage, paid annual leave and sick leave for all workers, and maternity leave on full pay for all working mothers.”

e)    Miners, domestic workers, farm workers and civil servants shall have the same rights as others who work.

 

All of these have been accomplished and the Investigations into the modalities of introducing a National Minimum Wage have been pursued and completed.

 

The 2009 Manifesto also calls a special focus on ensuring that social security is extended to more unemployed adults. Introduce a contributory social security system to provide for guaranteed retirement, disability and survivors' benefit, while streamlining the road accident, occupational injuries and the unemployment benefits.

 

The recent Unemployment Insurance Act Amendments captured this in the new law. Compensation Fund on the other hand already covers and guarantees on retirement, disability and survivor benefits which come about as a consequence of occupational injuries.

 

The ANC manifesto of 2014 calls on us to;

 

Investigate the modality for the introduction of a national minimum wage as one of the key mechanisms to reduce income inequality.

 

Take steps to strengthen existing laws to ensure faster change in employment equity in all workplaces by enforcing an accelerated implementation of employment equity targets.

 

Enforce measures to eliminate abusive work practices in atypical work and labour broking.

 

I am happy to say that all three action points have been pursued and completed.

 

KEY HIGHLIGHTS OF OUR ACHIEVEMENTS IN THE LABOUR LEGISLATIONS REFORMS

 

We are satisfied that through various forms of engagements, we have taken a realistic pulse on what needed to be done and we have by and large, stayed as close as possible to the spirit and a letter of what is prescribed in the International best practice conventions,  and our own constitution. 

 

Whilst this is merely providing information on the key aspects of our key labour laws, it is also an attempt to empower those who interact with these laws in general and workers in particular.

 

ORGANISATIONAL RIGHTS

The LRA makes it much easier for unions to obtain rights within the organisation. Commissioners can give majority rights to sufficiently represented unions who do not have majority representation. In the past you had to have 50% + 1 union representivity to qualify for majority rights such as the right to union representatives and access to information; now even if there is not 50% +1 representivity, a commissioner can award majority rights to a union that is at least sufficiently represented, where no other union in that workplace already has majority rights.

 

   

DISMISSALS

 

The Definition of dismissal has changed: In terms of Section 186 a dismissal is no longer just limited to the termination of a contract of employment by an employer, but termination of any employment. This means that, where an employee is stationed with the client of a labour broker, and the client decides to terminate his employment, the employee can refer the client to the CCMA irrespective of the contract with the labour broker, due to the fact that the employment relationship is between the employee and the client.

Failure to offer permanent employment once a fixed term contract has lapsed can be seen as unfair dismissal, where the employer cannot justify why no such permanent appointment can be made.

 

Any dismissals will be automatically “unfair” if the reason for the dismissal is that the employee refused to accept a demand in respect of any matter of mutual interest between them and their employer – e.g.  Pay cut, longer hours. Such changes are now left solely to the ambit of collective bargaining.

 

Where an employee is not required to work their notice period and the employer ops to pay out the notice period, the date of dismissal is the day when the notice expires or day employee receives final payment, whichever comes first.

 

FIXED TERM CONTRACTS

An employee may not be employed by a TES on terms and conditions not permitted by the LRA, or any employment law, sectoral determination or collective agreement applicable to the employees of the client to whom the TES employee renders services.

 

This is important Comrades because it deals with the argument that workers will be subject to unfair labour practices in the first three months.

 

Fixed-term employees, employed for a period in excess of three months and earning below the BCEA earnings threshold, will be deemed to be employed indefinitely unless the employer can demonstrate a justifiable reason for employing such an employee on a fixed-term basis. The law cites the following as possible justifiable reasons;

 

If the employee replaces a permanent employee of an employer that is temporarily absent;

 

If there is a temporary increase in the volume of work of an employer, provided the contract is then not for a period of more than 12 (twelve) months;

 

If the employee is a student or recent graduate being trained for a profession;

 

If the employee is exclusively employed on a specific project that has a limited or defined duration;

 

If the employee is not a citizen and the employment is linked to the period of the employee’s work permit

 

If the employee performs of “seasonal work”

 

If the employee is engaged in an official public works scheme or public job creation scheme

 

Where the position the employee occupies is funded by an external source for a limited period

 

If the employee has reached normal or agreed retirement age

 

Fixed term contract that exceeds 3 months without justifiable reason would result in that employee automatically becoming a permanent employee.

 

Fixed term employees working for longer than 3 months must work under and receive the same benefits as all other permanent employees – unless a justifiable reason to differentiate in terms and conditions exists, such as length of service, seniority, etc. 

 

Fixed-term employees, employed for a period in excess of 24 months must, upon the expiry of their contract period, receive a severance payment equivalent to at least one week’s remuneration for every completed year of service, unless the employer offers the employee permanent employment or procures employment for the employee with another employer on similar terms and conditions.

 

TRADE UNIONS

Trade unions representing the employees of a temporary employment service and/or a labour broker are now in a position to exercise their organizational rights not only at the workplace of the labour brokers, but also at the client’s workplace despite the employees not being employees of the client.

 

PICKETING

Employees participating in protected strike action may be permitted to picket not only at their employer’s premises, but also at premises owned or controlled by other parties. This change in the law will, for example, entitle the employees of a labour broker to picket at the client’s premises.

 

REVIEW OF ARBITRATION AWARDS

Review proceedings brought by employers in respect of arbitration awards handed down by, for example, the CCMA, will no longer suspend the enforcement of those arbitration awards; unless the employer furnishes security to the Labour Court or can demonstrate that it is in the interests of justice that security should not be tendered.

 

Security, in the case of a reinstatement or re-employment order, must be equivalent to two years’ remuneration for the employee in question. In the case of awards for compensation, the security tendered must be equal to the compensation awarded.

 

The applicant to a review application must apply for a date for the matter to be heard by the Labour Court within six months of the application having been filed at the Labour Court.

 

OPERATIONAL REQUIREMENTS DISMISSAL DISPUTES

 

A retrenched employee may elect to refer an unfair dismissal dispute either to the CCMA or a bargaining council or to the Labour Court if –

 

The employer followed a consultation procedure that applies only to that employee;

 

The employer’s operational requirements led to the retrenchment of that employee only; or

 

The employer employs less than 10 employees, irrespective of the number of employees retrenched.

In order not to suffocate small and start-up businesses, the provisions relating to fixed term contracts do not apply to an employer who employs less than 10 employees, nor does it apply to an employer who employs less than 50 employees and whose business has been in operation for less than two years.     

 

EQUAL PAY FOR WORK OF EQUAL VALUE;

The Act deals explicitly with unfair discrimination by an employer in respect of the terms and conditions of employment of employees doing the same or similar work or work of equal value. Differentiation may amount to unfair discrimination unless the employer can show that differences in wages or other conditions of employment are in fact based on fair criteria such as experience, skill, responsibility etc.

 

EMPLOYMENT SERVICES ACT (NO 4 OF 2014)

It is important to take note that the Private employment agencies are prohibited from charging work seekers any fees for services rendered. 

 

The recent Amendments to our labour laws seek to align our laws with the case law and address gaps that are identified by various Courts of the land from time to time. They bring about alignment with our international obligations as a country; prohibit all abusive practices that are inherent in various forms of employment such as labour broking and they address certain aspects of the sectoral determinations in order to ensure that they remain meaningful to workers in the sectors concerned.

 

UNEMPLOYMENT INSURANCE FUND ACT
A contributor who loses his/her income due to reduced working time will be able to claim for benefits under certain conditions. In the past this was available only to domestic workers.

 

Maternity benefits will be paid at a fixed rate of 66% of earnings instead of the sliding scale of 38 to 66%.

 

When the new amendments come into operation every maternity claim will be paid at a flat rate of 60% irrespective of how much a person earns which means claimants for maternity benefit will have more money in their pockets.

 

Unemployed contributors will be able to receive benefits for 365 days instead of 238 days over a period of four years.

 

Contributors will be able to accrue benefit days at a rate of one day for every completed five days in employment. In the past it used to be one day for every six days completed in employment.

 

Contributors will be paid benefits regardless of whether or not have received benefits within the four year cycle, if the contributor has credits.

 

An application for ordinary benefits must be lodged within 12 months instead of the current six months

 

A contributor who miscarries in the third trimester is entitled to the full maternity benefits.

 

The period to apply for dependent benefits has been increased from 6 months to 18 months.

 

Nominated beneficiaries can claim under certain conditions.

 

South Africa was among the first four countries to ratify the ILO Convention concerning decent work for domestic workers.

 

We urge trade unions, individual workers to assist in raising the awareness of the rights and responsibilities of workers in our labour laws.

 

Shop-stewards must make it their business to pass on the knowledge of the law to workers.

 

For Domestic Workers, please ensure that your employer has registered you on the unemployment Insurance Fund.  If you discover that your employer is not registered, or is registered but not sure if he is paying monthly contributions, please report the matter to any of the Department of labour offices nearest to your place of work.

 

 

All Media Inquiries to be addressed to:

Sithembele Tshwete

Media Liaison Officer

Ministry of Labour

Mobile No:        071 675 9849


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