Fit for purpose labour law amendments to be introduced

The last time a broad-based review of labour legislation was undertaken in South Africa was in 2009/10, with the amendments proposed at that time coming into effect in 2013. 

Although there have been amendments to certain pieces of labour legislation in the ensuing decade or so, for instance, amendments to unemployment insurance and compensation for occupational injuries and diseases, it is only at this juncture that a further comprehensive review of labour legislation is being undertaken.

The key focus of the 2013 reforms was to respond to increased informalisation and to ensure that vulnerable categories of workers received adequate protection and that workers enjoyed decent working conditions.

The 2013 reforms were also aimed at enhancing the effectiveness of primary labour market institutions, strengthening the implementation of Employment Equity, enhancing equal treatment in the workplace, and re-positioning public employment services. 

This round of labour law amendments, proposing sixty-seven changes across four pieces of labour relations legislation (LRA), nine sections of the Basic Conditions of Employment Act (BCEA), three sections of the Employment Equity Act (EEA), and three sections of the National Minimum Wage Act (NMWA) were initiated in 2021 following a proposal from the National Economic Development and Labour Council (NEDLAC).

According to Thembinkosi Mkalip, Acting Deputy Director General: Labour Policy & Industrial Relations are intended ‘to ensure that labour laws are relevant and responsive to the changes and challenges in the current labour market, such as unemployment, growing small businesses, and how employers can create employment without compromising job security’. 

Mkalipi said a NEDLAC report outlining the proposed changes and setting out both the agreements and disagreements between the various social partners would be handed to the Minister of Employment and Labour, Nomakhosazana Meth, ‘by the end of October 2024’.

The Minister would then be requested to table the Bill before Cabinet to approve this for public comment, and after public comments, the Minister would be requested to table the Bill before Cabinet for due Parliamentary process. The proposed Bill is likely only to be tabled in Parliament in the third quarter of next year.

The labour law amendment proposals will focus on the following: 

• Dismissal and retrenchment procedures 

• Improved efficiency of the Labour Court 

• Simplification of procedural fairness 

• Limit on compensation for procedurally unfair dismissals 

• Excluding high-paid employees from specific statutory protection 

• Inquiry by Arbitrator

• Redefining unfair labour practices 

• Improved efficiency of bargaining councils 

• Alignment of council/ agency jurisdiction

• Introducing a broader definition of employees

• Alignment of CCMA jurisdiction 

• Limitation of liability 

• Harmonisation of LRA and EEA dispute resolution

• Clarification and expansion of CCMA jurisdiction for severance pay claims 

• Introduction of protection for workers who are required to be available for work but are not 

• Guaranteed work by their employers

• Severance pay

• Exclusion from collective agreements 

• Qualifying period for new entrants into the labour market

The proposed labour law amendments follow other labour legislation already signed into law. President Cyril Ramaphosa recently signed the Employment Equity Amendment Act into law which now empowers the Minister of Labour to identify and set employment equity numerical targets for each national economic sector.

The regulations state, inter alia, that the National Economically Active Population (EAP) will apply to designated employers that conduct their business or operations nationally, while the Provincial EAP will apply where the business or operations are conducted in a particular province.

Meanwhile, news just to hand suggests that all is not quiet on the Western Front regarding the proposed amendments. The South African Federation of Trade Unions (SAFTU) who for the past two years has been part of a task team convened by NEDLAC, has rejected several of the proposed amendments.

‘These proposals attempt to give effect to what has long been suggested to remedy the low-growth South African economy that the South African labour regime needs to be reformed’ said Zwelinzima Vali, former general secretary of the Congress of South African Trade Unions (COSATU), and presently the general sectary of SAFTU. Vali added, ‘The proposed amendments are not politically or ideologically neutral, but serve the interests of the capitalist class’.

Conversely, organised business has argued that the amendments are intended to improve efficiency in the workplace.

It would appear that we’re in for some interesting and challenging times ahead. Watch this space!

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