Changes to the LRA impac2ng on bargaining councils. Paul Benjamin 7 March 2014

Transcription

1 Changes to the LRA impac2ng on bargaining councils Paul Benjamin 7 March

2 Collec&ve bargaining and extension of agreements (sec 49) Changes applicable to all bargaining councils seeking extension of collec5ve agreements Change to factors Minister of Labour must take into account when deciding to extend collec2ve agreements to non- par2es within the registered scope of BC One new factor: Minister must be sa2sfied that BC has an effec2ve procedure to deal with applica2ons by non- par2es for exemp2ons from the provisions of CA and that applica2ons for exemp2ons can be decided within 30 days. (Sec2on 32 (3) (da)) In addi2on, to extend an agreement, Minister must be sa2sfied that BC has a procedure in place that enables appeals to an independent body against a refusal to grant, or withdrawal of, an exemp2on can bee resolved within 30 days of the appeal being lodged. (Sec2on 32 (3) (e) (i)) 2

3 Appeals against exemp2on decisions No representa2ve, office bearer or official of a trade union or employer's organisa2on party to a BC may be a member of, or in any other way par2cipate in the delibera2ons of, the appeal body. (Sec2on 32 (3 A)) Ensures appeal process is independent of BC par2es. New clause (sec2on 32(11) clarifies that obliga2on to ensure appeals are dealt with in 30 days rests on BC. As a result, BC will have to monitor the opera2on of the independent appeal body to ensure that appeals are dealt with expedi2ously. 3

4 Bargaining councils that do not have majority representa5on The Minister must, when considering an applica2on to extend a CA by a BC that does not have majority representa2on, publish a no2ce in the Government GazeZe allowing 21 days for non- par2es to comments on proposed extension. No2ce must specify where copy of CA can be obtained. The Minister must consider comments before extending the agreement. (Sec2on 32 (5) (c) and (d)) When evalua2ng whether the par2es to a BC are sufficiently representa2ve, Minister may take into account the composi2on of the workforce including the extent to which employees engaged in non- standard employment, such as employment through temporary employment services, fixed- term contracts or part 2me employees. (Sec2on 32 (5 A)) It will be advisable for BCs to collect sta2s2cs concerning the composi2on of workforce within their registered scope. 4

5 Provision of informa&on to registrar Amendments to sec2on 49 extend informa2on that BCs that have CAs extended to non- par2es in terms of s. 32 must provide annually to Registrar of Labour Rela2ons. BC with an extended CA must advise Registrar annually of number of employees who are» employed within the registered scope of BC;» members of the trade unions that are par2es to BC;» employed by members of the employers' organisa2on par2es to BC;» covered by BC's collec2ve agreements that have been extended;» members of the TUs that are par2es to a CA;» employed by members of employers organisa2ons party to the CA. Purpose is to facilitate Minister s considera2on of applica2ons for extension by requiring BCs to provide relevant informa2on annually. (Currently, BCs only required to provide informa2on in first 3 categories on request by Registrar.) 5

6 Dispute resolu&on levies and fees Sec2on 51 amended to clarify that BC CAs may provide for payment of dispute resolu2on levies as well as the payment of fees for concilia2on and arbitra2on. Many BCs have already introduced dispute resolu2on levies through their collec2ve agreements. A collec2ve agreement may permit a bargaining council to charge fees for concilia2on or arbitra2on in circumstances in which the CCMA is permized to charge fees. The fee charged may not exceed the fee that CCMA may charge. (Sec2on 51(9)(b) and (c)). 6

7 Temporary Employment Services 198 (4) full joint and several liability employee may claim against TES or ER or both 198A new protec2ons iro employees earning below BCEA threshold (R193k) (198A(2)) (1) Temporary services 3 months/ as subs2tute/ ito BC agr, sectoral determina2on or Ministerial no2ce. (3) Deemed to be employee of client ager three months (4) Dismissal to avoid deeming unfair 7

8 Fixed term contracts * Sec&on 186 defini2on of dismissal * Dismissal extended to include where employee reasonably expected to be offered indefinite employment not limited to expecta2on of renewal of fixed term * This applies to all fixed term contracts 8

9 Fixed term contracts * Sec&on 198B new restric2ons on use of fixed term contracts * Does not apply to: * Employees earning more than R193k (BCEA threshold) * Small businesses or start ups * Fixed term contracts permized by statute, ectoral determina2on or collec2ve agreement * No scru2ny of reasons for use of fixed term contracts for period up to 3 months * Fixed term contract can be used for longer then 3 months only if nature of work is of a limited or definite dura2on, or if there is a jus2fiable reason for fixing the term 9

10 Fixed term contracts * Jus2fiable reasons include: * Temporary replacement * Temporary increase in volume of work up to 12 months * Work exclusively on a genuine limited dura2on project * Student or recent graduate being trained or gaining work experience * Seasonal work * Official public works scheme * Limited funding by external source * Employee is over re2rement age 10

11 Fixed term contracts * Sec&on 198B (con5nued) * Employee on fixed term for longer than 3 months without jus2fiable reason is deemed to be employed on an indefinite contract * Employee on fixed term for longer than 3 months is en2tled to be treated on the whole not less favourably than comparable indefinite employee * Fixed term contract employees must have same opportunity as indefinite employees to apply for vacancies * If fixed term for project work extends beyond 24 months, employee has a right to severance pay on expiry 11

12 Part- 2me employees * Sec&on 198C * Addi2onal protec2on does not apply to * employees earning over R193k * Small employers * Employees who ordinarily work less than 24 hours a month * During first 6 months of employment * Employees to whom the sec2on does apply are en2tled to: * Be treated on the whole not less favourably than comparable full 2me employees, including access to training and skills development * Same access to opportuni2es to apply for vacancies as full 2me employees (ghezo effect) 12

13 Cross- culng provisions Transi2onal provisions Exis2ng non- standard employees acquire most rights three months ager legisla2on comes into effect (198A(9), 198B (8)(b) 198C inserted by NCOP) Reasons jus2fying differen2al treatment 198D(2) impact on remunera2on packages 13

14 BC dispute resolu2on Sec2on 198D: any dispute arising out of the interpreta2on or applica2on of sec2on 198A to C may be referred to CCMA or BC for concilia2on, and if not resolved, arbitra2on. Referral to concilia2on within 180 days of dispute arising; dispute must be referred to arb within 90 days of concilia2on falling to resolve dispute. Condona2on on good cause for both periods. Disputes include Whether a TES employee dismissed to avoid protec2ons of Act (198A(4)) Whether an employee placed by a TES service with a client and deemed to be an employee of a client ager three months has been treated on the whole no less favourably than other employees of the client performing same or similar work; (sec2on 198A (5) Disputes concerning the conclusion or extension of fixed- term contracts (sec2on 198B (3) to (7)); Whether an employee on a fixed- term contract is treated on the whole no less favourably than indefinite employees performing same or similar work; (sec2on 198B (8)) Whether a part- 2me employee is treated on the whole no less favourably than full- 2me employees of the client performing the same or similar work; (sec2on 198C(3)) Whether a part- 2me employee has been provided with access to opportuni2es for full- 2me employment. (sec2on 198C(4)). Significant increase in the case- load of BCs an2cipated. Panelists will require training. 14

15 Addi&onal provisions that may be regulated by collec&ve agreement Inquiries by arbitrators (pre- dismissal arbitra5ons) Sec2on 188A (1) provides that a CA may provide for the holding of an inquiry by an arbitrator. Finding in an inquiry by an arbitrator has same status as arbitra2on by CCMA or BC. Currently, employees earning below BCEA threshold may only consent in respect of an individual hearing and employees above threshold may consent in contract of employment. Accordingly, BC CA may provide for the holding of inquiries by arbitrators. Use of temporary employment services BC CA may specify categories of work which cons2tute temporary services and in which employees may be placed to work with clients by TES for a period specified in CA. (s. 198 A(1)(c)). BC CA may define categories of work in which placement by TESs is permiked over and above those permiked by the LRA. 15

16 Bargaining councils: the a1ack on extension Valuline CC and others v Minister of Labour and others [2013] 6 BLLR 614 (KZP) Non- party employers challenge extension of Na2onal Clothing BC under sec2on 32(3). Jurisdic2onal issue: High Court has concurrent review jurisdic2on with LC. Minister accepted a cer2ficate of representa2veness issued by the DG in terms of sec2on 32()that 51% of employees in council s registered scope were employed by members of the party employers organisa2ons as decisive. BC s papers show that at the 2me members of party employers organisa2ons employed 48.5% of employees. The Minister should have considered this. Minister s reliance on the cer2ficate misplaced, as LRA requires her to consider actual figures, not to deemed figures. Extension of agreement to non- par2es null and void. Court did not suspend opera2on of order as LC had done in NEASA case. Cons2tu2onal issue raised but not decided 16

17 BC jurisdic7on: PSA obo Liebenberg v Department of Defence and others [2013] 8 BLLR 804 (LC) Employee unsuccessfully applied for temporary incapacity leave (TIL) PSA referred a dispute to PSCBC under sec2on 24 of LRA about interpreta2on and/or applica2on of collec2ve agreement. Commissioner ruled that dispute concerned a Ministerial direc2ve which was not part of collec2ve agreement and council could not arbitrate. On review, the par2es agreed that the Commissioner had erred and direc2ve was part of collec2ve agreement. Steenkamp J: ques&on for determina&on was the true nature of the dispute. SCA and CC have held that jurisdic2on is determined by the manner in which disputes are pleaded. PSA had formulated claim as concerning applica2on of the collec2ve agreement. As LAC had ruled in PSA obo De Bruyn v Minister of Safety & Security and another [2012] 9 BLLR 888 (LAC) that LC lacked jurisdic2on to hear TIL claim, PSCBC had jurisdic2on under sec2on 24 of the LRA. 17

18 PSA obo Strauss and others v Minister of Public Works N0 and others [2013] 7 BLLR 710 (LC) Chief Construc2on Project Managers classified as grade A in terms of a collec2ve agreement termed the Occupa2on Specific Dispensa2on for Engineers. Complained that they were treated unfairly because their subordinates had been given the same grade. Arbitrator held that dispute concerned alleged unfair implementa&on of the collec&ve agreement and bargaining council had no jurisdic&on. Arbitrator s decision confirmed on review. 18

19 Arends and others v South African Local Government Bargaining Council [2013] 5 BLLR 465 (LC) Municipality concluded Pay Parity Agreement ( PPA ), with two unions in 2009 to introduce a new grading system. Certain employees told they were overpaid and should be regraded down and return overpayments. Employees referred dispute to the SALGBC concerning the interpreta2on and/or applica2on of the agreement seeking ruling that municipality should not be allowed to implement reduc2on of remunera2on. Arbitrator rules Council had no jurisdic2on. Moshoana AJ: Individual employees are not par2es to collec2ve agreements and cannot refer disputes under sec2on 24 about collec2ve agreement. An interpreta2on dispute if par2es in dispute over the meaning of agreement or part of it. Dispute over applica2on arises when a party alleges something contemplated in the agreement has not happened, or has happened incorrectly. As no provision in PPA dealt with whether or not reduc&on of salaries were permiked, dispute did not concern its interpreta&on or applica&on. 19

20 South African Municipal Workers Union v Syntell (Pty) Ltd and others [2013] 2 BLLR 207 (LC) Syntell contracts with municipali2es to provide traffic services. SAMWU refers dispute to CCMA that its business covered by SALGBC. Commissioner rules for SAMWU and refers mazer to NEDLAC as demarca2on issue. NEDLAC disagrees with provisional award as Syntell employees do not work from municipal premises and tender contracts of limited dura2on. Commissioner issues revised award which SAMWU reviews. Review fails: Syntell is a service provider and not TES and therefore outside of BC 20

21 South African Municipal Workers Union v Syntell (Pty) Ltd and others [2013] 2 BLLR 207 (LC) Syntell contracts with municipali2es to provide traffic services. SAMWU refers dispute to CCMA that its business covered by SALGBC. Commissioner rules for SAMWU and refers mazer to NEDLAC as demarca2on issue. NEDLAC disagrees with provisional award as Syntell employees do not work from municipal premises and tender contracts of limited dura2on. Commissioner issues revised award which SAMWU reviews. Review fails: Syntell is a service provider and not TES and therefore outside of BC 21

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23 Na&onal Bargaining Council for the Road Freight Industry and another v Carlbank Mining Contracts (Pty) Ltd and another [2012] 11 BLLR 1110 (LAC) Labour broker objects to BC adjudicate unfair dismissal because employment contract provided for private arbitra2on. LAC compared bargaining council collec2ve agreement contained detailed provisions for concilia2on and arbitra2on of disputes concerning dismissals, similar to LRA. Contract provided for arbitra2on without specifying who was responsible for costs and without limi2ng the arbitrator s right to award costs against a party. The contract, deprived the par2es of benefits conferred by the collec2ve agreement and thus allowed less favourable treatment. This could not be cured by the appellant s offer to pay the costs of these par2cular proceedings. It was an impermissible waiver of rights under the collec2ve agreement. LAC confirmed jurisdic2on of BC to hear mazer. 23