Employment Services Bill & Labour Relations Amendment Bill: Further deliberations on proposed NCOP amendments

Meeting report

Employment Services Bill [B38B -2012]: Amendments proposed by NCOP: Further deliberations
Mr Sam Morotoba, Acting Director General, Department of Labour, outlined the proposals of the National Council of Provinces (NCOP) on the revised clauses 35 and 45 of the Employment Services Bill (the ES Bill).

The NCOP had suggested that clause 35(9) be amended to read: “If the Chief Executive Officer is for any reason unable to perform his or her functions, the Board may designate a person in the service of the Board to act as the Chief Executive officer until the Chief Executive Officer is able to resume office, or until the Board appoints a new Chief Executive Officer”.

The NCOP had suggested that similar changes be made to clause 45(3), which related to the Protected Employment Enterprises, so that if the Chief Executive Officer of the Protected Employment Enterprises was for any reason unable to perform his or her functions, the Minister must, in writing, appoint another person as acting Chief Executive Officer until the Chief Executive Officer was able to resume those functions “or until the Minister appoints a new Chief Executive Officer”. He added that these insertions were intended to curb any indefinite stay, in office, of acting officials and to reduce any ambiguity in the interpretation of the clauses. 

Discussion
Mr D Kganare (COPE) was of the opinion that the proposals made by the NCOP were logical one and there was no reason why the Committee should disagree with the submissions.

The Chairperson asked whether the word “vacant” could be inserted into the two clauses to aid a clearer interpretation, since there was no indication at present that the acting appointments would be linked to a vacancy.

Mr Mongameli Kweta, State Law Adviser, Office of the Chief State Law Adviser, agreed with the Chairperson’s suggestion and said that the phrase “or if the post of the Chief Executive Officer is vacant” could be inserted after the phrase “unable to perform his or her functions”, in each of the clauses. This would make the clause clearer, and less subject to misinterpretation. If this was done, then the Committee could still decide whether it wished to accede to the other changes recommended by the NCOP.

Mr D Kganare wanted to express his view that clause 35(1), which stated that the Board must appoint a Chief Executive Officer for the Board, who is the accounting officer of the board, read together with clause 35(6), which noted that the procedure for appointment of the Chief Executive Officer must be determined by the Board in terms of the rules, seemed already to cover a vacancy for Chief Executive Officer, so he did not believe there was any need to include a reference to “vacant” again.

Mr Tembinkosi Mkalipi, Acting Deputy Director General, Department of Labour, replied that the proposed clause had already included “for any reason unable to perform his or her functions”, which covered the situation where the incumbent had vacated his or her post, through illness or death, in which case the Board would make an appointment. He therefore believed that this statement had captured any eventualities that might occur and it was explicit enough, as it stood, but had no problem with the Committee wishing to make doubly sure that a different meaning could not be ascribed to the clauses.

Mr E Nyekemba (ANC) agreed with the suggestion made by Mr Kganare. The office of the Chief Executive Officer (CEO) would be termed vacant, if sickness, death or any other reason necessitated the absence of the CEO. This was not a total change to the clause but just a technical change to clarify the interpretation of the clause. He suggested that the NCOP proposals simply be adopted.

Mr Mkalipi said that this could indeed be done.

Mr Kweta wanted clarification as to exactly what the Committee was proposing.

Mr Kganare clarified that the Committee was suggesting that the NCOP proposal should be adopted as it was, without any other amendment, and that the inclusion proposed by the Chairperson was unnecessary.

The Chairperson argued that the Committee was not bound or compelled to agree with the NCOP.

Mr K Mubu (DA) said that he was in total agreement with the proposal spelt out by the Chairperson and Mr Kweta, as he believed it gave better clarity and it did not differ much from the submission of the NCOP.

Mr Nyekemba observed that a meticulous assessment of both proposals would show that in fact there was no material change. He agreed that the Committee was not obliged to accept the proposition by the NCOP, and suggested that rather than spending any more time on changing wording that did not result in any material differences, the NCOP proposals should simply be accepted.

The Chairperson replied that because the Committee did not have a quorum to vote on the two proposals presented, the issue may have to be postponed till the next discussion.

Mr Kganare insisted that, although he was not making a blanket suggestion that this Committee agree with all the NCOP proposals, this issue was so plainly stated that there was really no need to disagree and stall on this matter.

Mr Morotoba then drew the attention of the Committee to a slight technical error that still needed amendment in the ES Bill, at page 19, Schedule 3, at line 7, which had included, in the offences for which a fine may be imposed by the Labour Court, a reference to retaining a work seeker’s original identity card or qualifications in terms of section 14(1)(d). This numbering was incorrect, and the cross referencing should read “section 14(a-d).

Mr Nyekemba, Acting Chairperson at this stage, noted that the reference to the identity card itself in fact only appeared in clause 14(d).

Mr Mubu agreed that this was the only subclause having relevance.

Mr Kganare pointed out that clause 49(2) stated that the Labour Court may, on application by the Director-General, impose a fine of not more than R50 000 on an employer that contravened any of the provisions listed in Schedule 3. He felt that if the Committee were to adopt the schedule in this wording, an employer who failed to comply with clauses 14(a),(b) and (c) would suffer no consequences. He proposed that line 7 of Schedule 3 should be deleted and replaced with a general reference to a contravention of section 14.

The Acting Chairperson asked whether there was any legal reason attached to the exclusion of a reference to section 14(a-c) from Schedule 3. He asked if the fine of not more than R50 000 was relevant only to the subsections listed in Schedule 3.

Mr Kweta explained how clause 49(2) related to Schedule 3.

Mr Kganare insisted that he was not concerned about the other issues raised in Schedule 3, since all the other clauses were correctly referenced. The point of concern was line 7 that related to clause 14. Since the entire clause was listed as “Prohibited acts in respect of private employment agencies”, he believed that it made sense that a contravention of any of those subclauses of clause 14 should warrant a fine, and not only 14(d).

The Acting Chairperson asked the legal advisers if there was anything else in the Bill that covered a contravention of clauses 14(a-c).

Mr Mkalipi agreed with Mr Kganare that there was an omission by excluding a reference also to clauses (a) to (c), and this would definitely be corrected.

Mr Morotoba then suggested that line 7 be deleted. A new line, reading: “Prohibited acts in respect of private employment agencies (Section 14)” would be substituted.

The Acting Chairperson summarised that in respect of this issue there were two proposals made. The first was to substitute, for the existing line 7, the phrase “Prohibited acts in respect of private employment agencies (Section 14)” and the other was to substitute the reference to section 14(a-d)” with a simpler reference to “anything in contravention of section 14”

Mr Kweta agreed with the proposal to replace the current line 7 with “Prohibited acts in respect of private employment agencies (Section 14)”.

The Acting Chairperson asked that Mr Kweta excuse himself from the meeting now, effect those amendments, and re-present the revised Schedule 3 to the Committee. This Bill could not be adopted until that adjustment was done.

Labour Relations Amendment Bill [B 16B – 2012]   
Mr Mkalipi then outlined the amendments being proposed by the NCOP in respect of the Labour Relations Amendment Bill (the LRA Bill).

The first proposal related to clause 2, on page 3, line 3, where the reference to section 22(4) should refer to subsection 22(7)

On Page 3, line 22 was also wrongly referenced, and again the reference to section 22(4) needed to refer to section 22(7).

The NCOP had suggested that an insertion be made in line 42, relating to the new section 8A(12). This sought to clarify that if a trade union exercised rights in a workplace “of a client” of the Temporary Employment Service then the rights would be Chapter III rights (organisational rights). The insertion was intended to clarify where the worker might exercise his constitutional right.

The NCOP had then suggested another change to clause 9, on page 5 of the Bill. The suggestion from this Committee had originally been that the words “and supporter” should be removed, as related to picketing, so that the only persons allowed to picket would be union members. However, the NCOP had then proposed that the whole of paragraph (a) (in which this was changed) should be removed.

On page 6, line 2, the revised section 8A(12)(2)(c) gave the Court the right to suspend a strike or picket but this was regarded by the NCOP as interfering with the constitutional right of workers to strike and it had proposed that 2(d) be removed to counter balance the removal of 2(c), as this removed the power of the Court to suspend the use of the replacement labour by an employer.

The next amendment proposed related to page 6, in line 18, the new section 8A(13)(c), where the reference to 48 hours was removed because the intention was to give the Court the flexibility to reduce all the time periods that were indicated in this subsection 13, not only 48 hours.

In clause 37, at page 18, on line 27, a wrong reference was included to section 198(4D). This new section dealt with the scope of Bargaining Councils and sectoral determinations, and the revised section 198(4C) dealt with employment contracts. This reference must be corrected.

Other proposals were then made in respect of clause 38 (the revised section 198) as follows:

- On page 21, with regards to the provision made on the part-time workers, an additional clause was introduced. This allowed the provision to be only come into operation three months after the main Act would come into operation. This was just a transitional provision to avoid unnecessary disputes on the application of the section.

- On Page 21, lines 27 and 30 needed to be renumbered. The numbering was disorganised as a result of the addition of subsection (4).

- On Page 21, line 43 also contained wrong referencing. The new sections 198A(5), 198B(8) and 198C(3) dealt with employment on a fixed term and part time basis, where workers must be treated not less favorably than full time workers and the law allowed different treatment only where there were justifiable reasons. Section 198D(2) dealt with what must be taken into consideration in deciding on the fairness of the reasons.

- On page 21 at line 52, an exception on the time frame was created. In line 52, the time frame had been increased to six months instead of the 30 days that was termed “normal” with all disputes on dismissals.

Discussion
Mr Kganare said that, having gone through the proposals, he agreed to them, except with the proposals on page 6, clause 9, relating to the new subsection (12)(c) and (d). He was of the opinion that the right to strike should not be an absolute right and the Court should be objective enough to listen to presentation of cases by either the employer or the trade union. If the employees embarked on strike actions that could cause irreparable damage to the economy or the future of the country, the government or the employers should be given the right to intervene. He cited the instance of the statement made by the Minister of Mineral Resources, and said that she should have intervened legally, instead of appealing to the employers. In essence, if the clauses that the NCOP proposed for removal were indeed removed, there would be no alternative for an objective institution but to listen to the debate of aggrieved parties. In addition, he noticed that NCOP kept quiet over the issue of balloting before strike actions could be embarked upon. He asserted that he would not support the amendments made on this Bill until the issue of the balloting was resolved.

The Acting Chairperson said that he did not fully understand the argument that Mr Kganare was making with regards to balloting. He wondered whether the Department or the State Law Adviser could explain the motivations raised by the NCOP around the amendments proposed.

Mr Mkalipi replied that decision made by the NCOP revolved around the constitutionality of the proposal. The right to strike was a constitutional right of workers, and it was believed that when the Court was given the right to intervene, such rights would be contravened. The debate on the proposal was not about violence as a result of the strike, but about the right to intervene.  

Ms Suraya Williams, State Law Adviser, Office of the Chief State Law Adviser, reiterated that the point of departure should be the Constitution, and that the Court protected the Constitution, which was the supreme law of the land. She said that section 17 related to the right to strike or petition, but that there were no absolute rights. Even constitutional rights could be limited if there were justifiable reasons.     

Mr Nyekemba noted that the circumstances in which an employer could employ scab labour had been captured by the principal Act. If the trade unions realised that the employers used the scab labour for any reason which was not in line with the Constitution, they had a right to approach any court. The argument that Mr Kganare was therefore advancing, to retain what was set out in these clauses, was not tenable, because in his opinion employers and trade union members were still at liberty to go to Court in the event of strikes. There was no reason to add what was in clause (c) to achieve or make such decision. He proposed that the proposal from the NCOP on this issue should be adopted.

Mr Kganare insisted that he disagreed with the NCOP on its decision to make the right to strike and the right to lock out an absolute right. He added that the balancing of the new sections 69(12)(c) and (d) was very important because if the employers employed scab labour, the trade union would have the right to approach the Court on its grievances, especially if the employers were interfering with the right to picket by employing scab labour to intimate the union members or cause violence.

The Chairperson returned to the meeting at this point and apologised for having to step out. He said that the Committee had the right to agree or disagree with the NCOP on its submissions. However, Committee members must apply their minds to the proposals. The suggestions should be based on the realities on ground. He added that anyone who had never been involved with labour movements would not understand the intricacies involved in strikes and the tactics used by both parties. In the past, there had been cases where the employers, with the aim of discrediting the strikes, would get agent provocateurs to cause havoc and violence. He reiterated that any decision made now by the Committee must aim to find a way to get a peaceful co-existence between the parties. He pleaded with the Committee members that they must bear these issues in mind as they engaged on NCOP submissions.

He again noted that since there was no quorum at present, no binding decisions could be made today, and would be postponed till the next meeting.

Mr K Manamela (ANC) affirmed that members held different views on the recommendations from the NCOP with regard to clause 9. He agreed that other discussions needed to be postponed till the next meeting to aid clarity on the matter. He reminded the Committee that several discussions had been held in the past, by this Committee and in the House, on strikes, picketing and the right to lock out and the attitude had always been that since there was a recourse available through the courts already, there was no need to introduce another law that would inhibit the rights of both parties. He added that the time frame given by the National Assembly for submission of the decisions should be taken into consideration when allocating time to the Committee to deal with the matter. He said he assumed that since there were only two issues being deliberated on - Clause 9 and the issue of the balloting raised by Mr Kganare - all other submissions by the NCOP had been accepted.

Mr Mubu was in total agreement that the discussions be postponed until the next meeting. This would afford Members the opportunity to scrutinise the proposed amendments. He gave notice that he also wanted to raise issues on sections 21(2) and 29(2).

Mr Nyekemba asked for clarification from Mr Mubu whether he was referring to the amended Bill or the principal Act.

Mr Mubu clarified that he was referring to the principal Act.

The Chairperson commented that the Committee could not revert back to the principal Act, which had already been discussed extensively. Unless there were extremely vital omissions, the Committee could not go back and deal with matters again, from scratch.

The meeting was adjourned. The matters would again be discussed on 25 February.