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

Key amendments to labour legislation

Presentation for CAEO June 2014

BCEA

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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

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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

• r 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

• r 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

• Special dispensation 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'
• pportunities
• After Act amended entitled to same access to
• pportunities 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 difgerentiation

• 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 difgerence 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
• ne 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 diffjcult concept best left to

experts – expensive and opens door to attack on requirement of difgerentiation

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