Key amendments to labour legislation Presentation for CAEO June 2014 - PowerPoint PPT Presentation

Key amendments to labour legislation Presentation for CAEO June 2014

BCEA 2

BCEA: key changes 1.Prohibited conduct – Employer may not – • Require or accept payment by employee in respect of employment or allocation of work • Require to purchase goods

BCEA: key changes • However, may have provision in contract which requires employee to participate in a scheme involving the purchase of goods, if – Employee receives a financial benefit – Price is reasonable – Purchase not prohibited by law

BCEA: key changes • Prohibition of child labour – Prohibits all work by children under 15, irrespective of capacity

BCEA: key changes Sectoral Determinations (SD’s – s 55 ) • M.o.L. given extensive new powers: – May issue an ‘umbrella’ SD covering employers and employees not yet covered by another SD, bargaining or statutory council agreement – National minimum wage? – Determinations may prescribe both minimum remuneration and minimum increases in remuneration

BCEA: key changes • s 55 (4) new (g) – Prohibit or regulate…………”sub- contracting” (extend from task work, piece work, home work) and minimum remuneration and conditions of work

BCEA: key changes • s 55 (4) – Set a threshold of representativeness within a sector at which trade union automatically has the organisational rights in sections 12-13 of LRA in respect of all workplaces covered by SD, regardless of representativeness in any particular workplace

BCEA: key changes - Aim to extend organisational rights to sectors which are difficult to organise: farm workers and domestic workers - SD’s regulate employment in unorganised sectors i.e. where there is no statutory council: amendment will change this

BCEA: key changes Implications • A national minimum wage? • Floor’ of rights for collective bargaining purposes is lifted: unions are likely to use the minimum rates and increases as a (minimum) threshold for their wage demands • Minister by way of a SD may regulate and also prohibit non-standard employment • SD’s may strengthen Statutory Councils

BCEA: key changes 2. Enforcement of BCEA • Current process – Written undertaking – Compliance order – Representations to DG – Timelines – Consideration of objections, appeals – Application to LC by DOL

Labour Relations Act 12

Temporary Employment Services ‘Joint & several liability’ extended for all caims: • Employee may institute proceedings against either client or TES • DoL may enforce against either • TES to comply with BCA's etc applicable to client • TES must be registered

‘Temporary’ service • Someone working for a client who - – earns less than threshold – not exceeding 3 months, or – as a substitute for someone temp absent, or – in category and for period determined by BCEA, SD, MoL • Remains employee of TES

Labour brokers • If service not 'temporary': - deemed to be employee of client - for an indefinite period unless 198B applies - to be treated 'on the whole' not less favourably than employee of client performing same or similar work unless justifiable reason for differentiating

Labour brokers Termination by either to avoid indefinite employment = dismissal Applies to existing arrangements 3 months after Act takes effect

Fixed-term employees Definition • occurrence of a specified event • completion of a specified task or project • a fixed date other than retirement age

Fixed-term employees Maximum duration of contract 3 months, thereafter indefinite unless: • nature of work is of limited or definite duration • or 'any other justifiable reason' e.g. – replacement for temporary absentee – temporary increase in volume of work 'not expected to endure' longer than 12 months

Fixed-term employees – student or 'recent' graduate – exclusive work on a specific project of limited or defined duration – someone employed on temporary work permi – employed to do seasonal work – employed beyond normal or agreed retirement age

Fixed-term employees Consequences of 'genuine' temporary contracts • Contract in writing • Contract to state reason for temporary status • Onus on employer to prove reason for temp status and that term was agreed

Fixed-term employees After 3 months of employment: Temp to be treated 'on the whole not less favourably' than permanent person doing same or similar work unless justification for differentiation (3 months' grace for 'old' contracts)

Fixed-term employees After 3 months of employment: • All temps to be given equal access to opportunities to apply for vacancies • Specia l dispen sation for limited duration, project specific work, i.e. severance pay after 24 months

Fixed-term employees N/A to: • Employees earning less than threshold • New employers (2 yrs) with less than 50 staff • Exceptions i.t.o. statute, collective agreement or SD

Fixed-term employees After 3 months of employment: • All temps to be given equal access to opportunities to apply for vacancies • Special dispensation for limited duration, project specific work, i.e. severance pay after 24 months

Part-time employees Definition Working less than hours of a 'comparable' full-time employee paid wholly or partly for time worked

Part-time employees Consequences: 'Taking into account working hours of employee’ - • to be treated 'on the whole not less favourably' than comparable full-time employee doing same or similar work, unless justifiable reason exists

Part-time employees Consequences: • Right to comparable 'access to training and SD' opportunities • After Act amended entitled to same access to opportunities to apply for vacancies as full-timers

Part-time employees Identifying 'comparable' FT employees: s 198C(5)

Part-time employees N/A to: - Those excluded from s 198 B - Employees ordinarily working less than 24 hrs @ month - During first 3 months of continuous employment

Justifications for di fg erentiation • Seniority • Experience • Length of service • Merit • Quality or quantity of work performed • Any other criteria of a similar nature

The EEA • Section 42 to change: criteria reduced • Heavier penalties: % of turnover • Enforcement easier: directly to LC • Equal pay provision: new s 6 • Psychometric testing: approved by HPCSA

The EEA: equal pay New ss 6(4) and (5) • A di fg erence in terms and conditions of employment • between employees of the same employer • performing the same or substantially the same work or work of equal value • is unfair discrimination and is prohibited on any one or more grounds of unfair discrimination

The EEA: equal pay • Not new – has always been there • Current score in Labour Court: Employers lead 4-0 • Work of equal value di ffj cult concept best left to experts – expensive and opens door to attack on requirement of di fg erentiation

The EEA: s 42 • Representation (only levels) in relation to demographic profile of the EAP • Vacancies in levels • Labour turnover • Reasonable steps to train • Reasonable steps to implement EE • Extent of progress in eliminating barriers

The BCEA • Heavier penalties • Enforcement easier