Labour Bills: proposed amendments & adoption; with Deputy Minister

Meeting report

The Chairperson welcomed everyone and indicated the Committee would consider the A-lists of the Labour Relations Bill, the Basic Conditions of Employment Bill, and the National Minimum Wage Bill. The amendments to the aforesaid Bills as introduced to the Committee would also be considered, clause by clause.

Deliberations on Labour Relations Bill (B32A)
Ms Bongiwe Lufundo, State Law Advisor, took the Committee through amendments to the Labour Relations Bill (LRA) as agreed to by the Committee as follows:

Clause 1
The numbering was amended to comply with legislative drafting prescripts. 

Members agreed.

Clause 8
As per the discussions during the previous meeting, the clause was amended by the addition of the following subsection:’’ and by substituting the following:

(a) By the substitution of subsection (8) of the following subsection:
‘‘(8) The Minister, [in] after consultation with NEDLAC, may by notice in the Government Gazette publish guidelines to be applied by the registrar in determining whether an applicant is a genuine trade union or a genuine employers’ organisation and guidelines for the system of voting as contemplated in subsection (9).

Members agreed.

New clause: Withdrawal of accreditation
If an accredited council, [or] accredited agency or a person accredited by the governing body fails to comply to a material extent with the terms of its accreditation, the governing body may withdraw its accreditation after having given  reasonable notice of the withdrawal to that council, [or] accredited agency or the accredited person.’’

Members agreed.

The Chairperson moved for the adoption of the amendments as agreed to by the Committee.

The amendments were adopted.

Disruptions by protestors
The meeting had to be adjourned for an hour, 40 minutes into the discussions, after a handful of activists donning South African Federation of Trade Unions (SAFTU) regalia disrupted the deliberations. They demanded that the Chairperson respond to correspondence sent to the Committee in relation to the national minimum wage. The Committee reconvened after an intense stand-off between parliamentary security services and the protestors as the protestors were being assisted out of the venue.
The Chairperson expressed the Committee’s disappointment with the conduct of the alleged SAFTU activists who sought to disrupt a committee meeting. The incident was unfortunate and did not speak to how South Africans resolve differences of opinion. The committee will not be distracted and derailed in trying to improve the conditions many of our poor working South Africans find themselves in. The processes on the National Minimum Wage were unfolding, and this drastic and chaotic stance was not warranted. Parliament is a place for persuasion and engagement, hence the Committee has adopted the approach of listening to all stakeholders even after the deadline of its processes regarding oral submissions. The Committee accepted that activists have a right to protest, but that right should not seek to interfere with the work of Parliament, and the rights of other persons. There will still be an opportunity to engage with the Bill during the National Council of Provinces’ processes and therefore Members should be allowed to do their job without hindrance.

Consideration of Labour Relations Bill as introduced (B32B) 
The Chairperson took the Committee through the LRA Bill as introduced (B-version). She said Members with objections needed to clearly articulate their minority views which would be captured by the Committee Secretary for inclusion in the Committee Report. 

Clause 1(a)
(1) Section 32 of the LRA was amended—
(a) By the substitution for subsection (2) of the following subsection:
‘‘(2) [Within 60 days of receiving the request] Subject to subsection
(2A), the Minister must extend the collective agreement, as requested, by publishing a notice in the Government Gazette, within 60 days of receiving the request, declaring that, from a specified date and for a specified period, the collective agreement will be binding on the non-parties specified in the notice.

The majority of Members agreed.
 
Mr M Bagraim (DA) said the majoritarian concept espoused in the amendment would undermine the interests of small businesses and non-unionised workers. The DA therefore objected to the clause on those grounds. He would submit the DA’s objections comprehensively in writing.

Nkosi Phathekile Holomisa, Deputy Minister of Labour, said it might not be necessary for the DA to submit a lengthy document on its objections. A brief outline to be captured by Committee Secretary would suffice at this juncture. The DA could expand on its objections when the Committee Report is presented to Parliament.   

Mr Bagraim agreed and added the Deputy Minister’s proposal would save time. 

Clauses 2, 3, 4, 5 and 6
Members unanimously agreed to the clauses as amended.
Clause 7
Amendment of section 75 of Act
Section 75 of the principal Act was amended by the addition of the following subsection:
‘‘A panel appointed by the essential services committee may in the prescribed manner vary or cancel the designation of the whole or part of a maintenance service on its own accord or on application by the employer or a registered trade union with members affected by the designation of a maintenance service.’’

The majority of Members agreed.

Mr Bagraim raised the DA’s objection to the amendment. The DA was not agreeable to the clause in its current form. It was open-ended and would give the Minister carte blanche. There had to be some regulatory framework and rules as to how it would be applied.

Mr B Mashile (ANC) pointed out that regulations were a product of an adopted Bill. Regulations could only be effected after the Bill was passed. Therefore the provision could not be held in abeyance just because the regulations had not been formulated.

Deputy Minister Holomisa sought clarity about whether the DA was opposed to the provision as a matter of principle or because it had not seen the regulations relevant to the clause. Did Mr Bagraim’s objection mean the DA was opposed to the idea of having regulations?

Mr Bagraim said the DA was not opposed to having the Minister formulate regulations as this was provided for in legislation. However, as the clause, in its current form, was completely open-ended, the Minister could effectively regulate whatever he/she wants.

Clauses 8, 9, 10, 11, 12
Members unanimously agreed to the amendments.

Clause 14
Section 128 of the principal Act was amended by the substitution for subsection (3) of the following subsection:
‘‘(3) (a) (i) an accredited council may confer on any person who is accredited by the governing body and appointed by [it] the council to resolve a dispute, the powers of a commissioner in terms of section 142, read with the changes required by the context.
(ii) For this purpose, any reference in that section to the director must be read as a reference to the secretary of the bargaining council.
(b) An accredited private agency may confer on any person who is accredited by the governing body and appointed by [it] the agency to resolve a dispute, the powers of a commissioner in terms of section 142(i)(a) to (e), (2) and (7) to (9), read with the changes required by the context.’’.

Mr Bagraim said the governing body that would be involved in accreditation should be given an outline of how it should conduct its functions. The accreditation process itself had created a lot of problems in the past, hence there must have be a well-defined structure in the legislation.

Members agreed to the amendment and noted the DA’s reservations.
 
Clauses 17, 18 and 19
Members agreed unanimously

The Chairperson moved for the adoption of the LRA Bill as introduced. The Bill was adopted.

Deliberations on Basic Conditions of Employment (BCEA) Bill (B30A)
Ms Lufundo took the Committee through amendments to the BCEA Bill as agreed to by the Committee.

Clause 12
The clause was amended consistent with the proposal by Members during a previous meeting as follows:
To omit ‘‘person’’ and to substitute ‘‘employee or worker as defined in section 1 of the National Minimum Wage Act, 2018’’.

Mr Bagraim said the DA, although in agreement with the wording changes, objected to the concept as well as the definition of ‘worker’. The definition of ‘worker’ was too wide and needed refinement.

Majority of Members agreed to the amendment.

Clause 16
The clause was amended as per Members’ call for clarity as follows:
‘‘(2) For second or further non-compliances, a fine that may be imposed on the employer is an amount that is greater of—
(a) Thrice the value of the underpayment; or
(b) Thrice the employee’s monthly wage.
(3) The Minister may issue guidelines on the determination of whether a non-compliance is a second or further non-compliance, as envisaged in subsection (2).
(4) The Department must maintain and publish on its official website, on a quarterly basis, a list of all employers who were issued with compliance orders.’’.

Members noted the amendments and agreed.
 
The Chairperson moved for the adoption of amendments as agreed to by the Committee. The amendments were adopted.

Deliberations on the BCEA Bill as introduced (B30B)
The Chairperson took the Committee through the BCEA Bill as introduced (B-version), clause by clause.

Clause 3
The following section was inserted in the principal Act after section 9:
‘‘Daily wage payment
9A. (1) An employee or a worker as defined in section 1 of the National Minimum Wage Act, 2018, who works for less than four hours on any day must be paid for four hours work on that day.
(2) This section applies to employees or workers who earn less than the earnings threshold set by the Minister in terms of section 6(3).’’.

Mr Bagraim said the DA objected to the stipulation of a minimum number of hours.

The majority of Members agreed to the clause. 

Clause 5
Clause 5 of the Bill inserts section 62A that deals with definitions. It states that for the purpose of Chapter 10 of BCEA, an employee includes a worker as defined in section 1 of the proposed National Minimum Wage Act.

Mr Bagraim said the DA did not agree to the definition of ‘worker’ because, in its current form, it included independent contractors. The definition was far too wide.

The majority of Members agreed to the clause.

Clauses 6 to 15
Members agreed to the clauses.

Clause 16
The following section was inserted in the principal Act after section 76:

‘‘Fine for not complying with national minimum wage
76A. (1) Subject to section 76, a fine that may be imposed on an employer who paid an employee less than the national minimum wage, is an amount that is the greater of—
twice the value of the underpayment; or
twice the employee’s monthly wage

Mr Bagraim said the DA did not agree to the terminology, particularly use of the term fine because it was criminal in its nature. Secondly, tying the hands of the adjudicating officer by stipulating that the fines should be twice the value of the underpayment or twice the employee’s monthly wage would be incorrect.

The majority of Members agreed to the amendment and noted the DA’s objection.

Clause 18 (Rights of Employees)
The clause was amended as follows:
Every employee has the right to—
(a) make a complaint to a trade union representative, a trade union official or a labour inspector concerning any alleged failure or refusal by an employer to comply with this Act or the National Minimum Wage Act, 2018;

Mr Bagraim said the DA believed inspection must only be done by authorised persons from trade unions, not just any employee. The DA did not object to the concept of inspection per se but believed it should not be done by all and sundry.

Mr Mashile said the DA could only object to the amendment to the Bill as introduced- this being the addition of or the National Minimum Wage Act as underlined. Any other objections could be made through the introduction of a Private Member Bill if the DA deemed it necessary.

Mr Bagraim maintained that his objection should be upheld and be reflected in the Committee Report.

Members agreed.  

Clause 19 to 21
Members unanimously agreed to the amendments.

The Chairperson moved for the adoption of amendments to the BCEA Bill as introduced. The amendments were adopted.

Deliberations on the National Minimum Wage (NMW) Bill (B31A)
Ms Fatima Ebrahim, Parliamentary Legal Advisor, took the Committee through NMW Bill amendments as agreed to by the Committee.

Clause 3
The following subsection was inserted:
‘‘(2) This Act does not apply to a volunteer, who is a person who performs work for another person and who does not receive or is not entitled to receive, any remuneration for his or her services.’’

Clause 4(3)
To indicate that a sectorial determination could not provide for a wage that is lower than the NMW, the following subsection was inserted:
The national minimum wage in respect of workers in the extended public works programme as contemplated in item 2(c) of Schedule 1 must be increased proportionately to any adjustment of the national minimum wage as contemplated in section 6.’’.

Members agreed.

Clause 6
Consistent with previous discussions, the clause was amended by omitting subsection (6) and substituting the following subsection:
‘‘(6) The Minister must, by a date fixed by the President by proclamation in the Gazette, determine the adjustment to the national minimum wage, and by notice in the Gazette, amend the national minimum wage contained in Schedules 1 and 2.’’

The Chairperson moved for the adoption of NMW Bill amendments. The amendments were adopted.

Deliberations on the NMW Bill as introduced (B31B)
The Chairperson took the Committee through the NMW Bill as introduced (B-version), clause by clause.

Definitions
‘Worker’ means an employee as defined in section 1 of the BCEA.

Mr Bagraim reiterated the DA’s objection to the definition of ‘worker’ on the grounds that it would include independent contractors. He proposed the substitution of ‘worker’ with ‘employee’. He further expressed the DA’s objection to all clauses where the term ‘worker’ was used.

Member agreed to the definitions taking into account reservations by the DA.

Clause 9: Composition of National Minimum Wage Commission
The Commission comprises of the following members:
(a) A chairperson appointed by the Minister;
(b) Three members nominated by organised business;
(c) Three members nominated by organised community;
(d) Three members nominated by organised labour; and
(e) Three independent experts, who are knowledgeable about the labour market and conditions of employment, appointed by the Minister.
(2) The members of the Commission must be citizens or permanent residents of the
Republic.

Mr D America (DA) said the DA believed the Commission must consist of independent persons not associated with any parties which might have an interest in the outcome of the deliberations.

Deputy Minister Holomisa queried whether the DA really understood social dialogue, a concept principally underpinning NEDLAC.

Mr America said social dialogue should take place at NEDLAC, not in the NMW Commission.

Mr Bagraim added, in any event, social dialogue took place at NEDLAC to a certain degree. It must be understood that some interested parties were not even part of the NEDLAC processes. The process could be typified as a case ten wolves and a sheep debating what to have for lunch. For instance, the unemployed were not clearly represented at NEDLAC. He reiterated the DA position that the Commission should be completely independent from any interested parties.

Members agreed to clause 9 and noted objections by the DA.

Clause 10: Appointment and termination of appointment of members of Commission
(4) Termination of appointment may be effected in the following manner:
(a) The member’s death;
(b) The resignation of a member giving three months’ notice to the Minister; and
(c) Subject to due process of law, the removal of a member from office by the Minister for the following reasons:
(i) Serious misconduct;
(ii) Permanent incapacity;
(iii) Failure to attend three successive meetings without a reasonable explanation; or
(iv) Engaging in any activity that undermines the integrity of the Commission.

Mr Bagraim disagreed with 4(c) (i) as outlined. What did ‘serious misconduct’ mean? Serious misconduct should be clearly defined as the Minister would be in a position to remove Commissioners willy-nilly if it was not clearly spelt out. 

Mr B Martins (ANC) argued the Minister would not be in a position to dismiss Commissioners willy-nilly as due process would have to be followed prior to any dismissals.

Mr Mashile said regulations would clearly define what would constitute serious misconduct. The discussion on Mr Bagraim’s objection should be deferred up until regulations were formulated.

Clause 14
The clause was read as follows:
The funds of the Commission consist of money defrayed from the budget vote of the Department.

Mr Bagraim said the DA believed the Commission should have a separate budget. Receiving funds from the Department would make it an appendage of the Department, and thus compromise its independence. The provision meant the Commission was completely beholden to the Department and this was objectionable. The Commission should be fully independent.

Mr Thembinkosi Mkalipi, Chief Director, Department of Labour, said during previous discussions, the Committee had pointed out that having a Commission with own budget would imply the creation of a new entity. The Commission was not a new or separate entity and thus its funds should be appropriated through the Department.

Members agreed to the clause and noted the DA’s objection.

Schedules 1 and 2

Mr Bagraim reiterated the DA’s objection to the use of the term ‘worker’, and suggested use of ‘employee’ instead. He also believed that having a minimum wage of R11 per hour for government’s extended public works programme was an ‘absolute disgrace’.

The Chairperson moved for the adoption of amendments to the NMW Bill. The Bill was adopted with reservations from the DA as identified. She thanked everyone and indicated Committee Staff would finalise the Committee Report on the Bills for consideration on Friday.

The meeting was adjourned.