These are a few comments about some of the proposals. This document is not a finite critique of the proposed changes but is merely a guide to highlight a few which need further discussion.
Some of these proposed changes are far reaching and many would be deemed to be detrimental to the economy. The government is closing the public’s ability to comment as at the 17th February 2011.
The Department of Labour said that these proposed changes are to tackle the growing casualisation of work. They said this casualisation is a South African phenomenon and needs to be addressed and stopped. Indeed, casualisation is a growing phenomenon but it is a worldwide phenomenon and is specifically introduced to tackle the modern economy and the modern way of doing business. To outlaw casualisation would be to try and tackle the way in which employment the world over has evolved. The outlaw of casualisation would merely retard the creation of further jobs within the economy.
Another area of great concern is the Cosatu proposal of outlawing labour broking. The Minister has not gone that far, but has created a set of circumstances making labour broking in some cases almost impossible to pursue. The proposed repeal of Section 198 of the Labour Relations Act gives the public insight into what the government really wants to do. One should not have a problem with the proper registration of labour brokers and neither should one have a problem in making the labour brokers jointly and severably liable with their client. These regulations could be brought in under the new legislation without any need to repeal Section 198. The existing law is absolutely clear, it probably needs better definitions and better implementation. We in South Africa all understand the nature of exploitation and certainly want to outlaw this, however, should there be a joint responsibility on the labour broker and the client then there is no need in any way to either outlaw the labour broker or to retard the labour brokers growth. The proposed new definition of an employee makes it almost impossible for a labour broker to exist. Any person who works for another is defined as an employee of that other and therefore it cuts out the need for the labour broker. This situation creates an impossibility for someone who needs staff for a short period of time and who are highly qualified. For instance, an oil refinery closing down would need to bring in an enormous amount of experts for a short period of time to shut down the refinery. They have in the past used labour brokers very effectively for this. These labour brokers move from factory to factory and from plant to plant. This situation has created gainful employment for millions of employees who would not otherwise have access to the labour market.
The regulation of contract work is badly worded and will certainly backfire if it goes ahead and becomes legislation without a refinement of the wording. The ill that the legislation wants to cure is the fact that many employers roll over short term contracts on a regular basis merely trying to avoid giving staff permanent status. The lawyers will explain that all the legislation has to do is to shift the onus of proof to the employer to show that the position was truly a short term one or was a fiction to avoid permanency. There should be no need to change the legislation other than to bring in the onus of proof. The employer should bear the burden in circumstances of this situation to show that there was truly a need for a short term contract. As the law currently stands it is submitted that there is already a burden on the employer to discharge. It is acceptable that should the employee be able to show that the short term contract was a fiction then that employee could be deemed to be an permanent employee. As the law currently stands the adjudicators would merely grant a further short term contract. This change would be acceptable and make the employee a permanent employee if that employee can show that the short term contract was a fiction. Indefinite employment in circumstance of a proved fiction would be acceptable.
The strengthening of the power of the inspectorate is not a bad suggestion and nor would it create enormous hardship for business. The real problem however is that the department needs to train and employ many more inspectors so as to ensure that the current law is properly enforced. One of the real problems that the labour market is seeing is that the law that we have, which is both acceptable and efficient, is not actually enforced.
Many of the organizations will be making representations to the Department of Labour. Once these representations have been received the parties will be debating the issues at NEDLAC.
The Cape Chamber of Commerce and Industry, Altitude Employment Solutions and Bagraims Attorneys will be having a Seminar on these changes on the 1st March 2011. Please contact Shazia on telephone number 021 761 5321 OR e mail firstname.lastname@example.org. Likewise APSO will also be having a Seminar on Wednesday 9th February 2011 from 8am to 10am. They can be contacted on 0861 42 62 82 or e mail email@example.com