CWAO IN THE NEWS

The South African employers are aiming to strengthen their dominance and power in the workplace. They are seeking with the support of the South African government to overturn important hard-won rights of workers.

They want to make amendments/ changes to the Labour Relations Act (LRA). The main objectives of these proposed amendments are:

• To make it easier for employers to hire and fire new workers.
• To lower labour costs.

This is a summary of the proposed changes:

1.Making it easier for employers to hire and fire workers:
No need for a formal disciplinary hearing
(This change is found in Section 188 of the LRA)

Presently a worker has a right not to be unfairly dismissed. Before a worker can be dismissed the worker must be given the reasons, i.e. the alleged charges, and be called to a formal disciplinary hearing.

This right to a formal disciplinary hearing was won by the workers’ movement of the 1970s/80s. At that time, during Apartheid, the foremen or managers could fire workers for any small reason and get away with it. Workers challenged this arbitrary power of managers and forced the Apartheid Regime to grant workers the right to a formal hearing before dismissal.

Now the employers are proposing that a new worker can be dismissed without any reason or a formal disciplinary hearing, during the first three months of their employment. What this means is that an employer can hire a new worker and fire that worker within the first three months whenever they feel like it.

Moreover, a worker who is on probation can also be hired and fired without any reason and without any hearing being held. The worker can be put on probation for a period longer than three months. During this longer period of probation, workers can be fired without a reason or hearing.

With these proposed amendments, it is clear that the ruling class wants to return to their good old days of Apartheid rule where workers were hired and fired at will.

* Employers gain the power to impose a pre-dismissal inquiry
(This change is found in Section 188 of the LRA)

A pre-dismissal inquiry takes place instead of a disciplinary hearing. In this inquiry, the decision of the chairperson of the pre-dismissal inquiry has the same status as an arbitration award. In other words, if a worker is dismissed in a pre-dismissal inquiry, then they cannot refer an unfair dismissal dispute to the CCMA or Bargaining Council. They have to refer the dispute to the Labour Court for a review.

Under the new changes, employers can include in employment contracts that pre-dismissal inquiries are compulsory. This means that workers will not be able to refuse a pre-dismissal inquiry.

* Workers can no longer interdict unfair retrenchment procedures
(Section 189A - 13 to 18)

Presently when an employer wants to retrench workers, the employer must follow procedures, such as giving notice and consulting with representatives of the workers who might be retrenched. When the employer does not follow the proper procedures, workers can apply to the Labour Court for an urgent court interdict to stop these unfair procedures.

Under the proposed new amendments, workers cannot apply for an urgent court order to stop an employer who is violating fair retrenchment procedures. Workers can only challenge unfair retrenchment procedures after they are retrenched or dismissed. Workers will need to use the Labour Court where it can take years to get a date for a case.

2. Lowering the labour cost of a business
* Wage Agreements of Bargaining Council not binding on new businesses

The proposed labour law amendments want to cheapen labour power. Wage agreements negotiated in Bargaining Councils will no longer be binding on an employer of a new business that employs less than 50 employees and is in business for less than two years.

These agreements set out the wage rates and all other conditions of employment applicable to employers operating in the sectors or industries. With these proposed changes a new business employing less than 50 employees will not have to pay the Bargaining Council wages and comply with all the other conditions of employment.

3. Limiting the scope of unfair labour practice issues and disputes

Workers can currently under the LRA take up a range of issues that can be classified as unfair labour practices. The LRA defines an unfair labour practice as any unfair act or conduct of the employer:

(a) relating to promotion, demotion, probation, training and the provision of benefits to an employee.
b) relating to the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.
(c) relating to a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) relating to an occupational detriment, other than dismissal. An occupational detriment is an unfair action of an employer against a worker for making a protected disclosure).

With the proposed changes, unfair labour practices will only apply to:

* the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee and
* an occupational detriment, other than dismissal.

If this change becomes law, then workers can no longer refer unfair labour practice disputes in relation to promotion, demotion, training of the employees or the provision of benefits.

Also, if an employer refuses to re-instate a worker in accordance with any agreement, then we can no longer refer an unfair labour practice disputes.

4. Other Workers’ Rights being attacked

The capitalists want:
a) To limit the length of Section 77 strike certificates
In terms of section 77 of the LRA a union or a federation of unions can call a socio-economic protest strike. The certificate for such a protest strike lasts indefinitely.
Now the employers and government want the certificate to protest strike to lapse if it is not used within 24 months. The unions/ federations must then reapply again or submit a new application.
b) To introduce a separate labour regime for higher-paid employees
Higher paid employees can only be re-instated or re-employed if their dismissal relates to an automatically unfair dismissal. If they are unfairly dismissed for misconduct or incapacity, then they can only receive compensation.
The definition of a higher paid employee changes every year, according to the earnings threshold determined by the Minister of Employment and Labour. From 1 April 2024, a higher paid employee is anyone earning more than R 254 371,67 per year (R 21197,64 per month).

5. Minor concessions to workers

* Retrenchments
(This change is in Section 189A of the LRA)

It is proposed that the Labour Court may deal with disputes about both the procedural unfairness of a retrenchment. Presently the Labour Court only deals with the reasons for retrenchments when an unfair retrenchment case is referred to the Labour Court.

* Automatically Unfair dismissal
(This change is in Section 191 of the LRA)

It is proposed that a worker can refer an automatically unfair dismissal case for arbitration to the CCMA or Bargaining Council or Labour Court. Presently, a worker can only refer an automatically unfair dismissal case to the Labour Court which is expensive and take time, hence very few such disputes are referred. By having the option to go to arbitration, workers can have access to a less expensive and less time-consuming process.

* Presumption of who is an employee
(New Schedule 11 is added)

With the proposed changes, the onus shifts to employers to prove that employees in the gig economy like Uber drivers/delivery drivers are not employees.

* Holding a secret ballot on closed shop agreements
(This change is in Section 26 of the LRA)

With the proposed amendments, a closed agreement terminates if a secret ballot is not held when workers demand it or if a three-year period has elapsed. In a closed shop, a worker must be a member of the trade union if they want to work at the company. A union that is part of a closed shop agreement does not have to act in the interest of workers because workers have no choice but to be members anyway. Having a ballot after three years of the closed shop agreement gives workers the opportunity to vote whether they want to remain part of the closed shop and the union.

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Category: CAMPAIGN | AMENDMENTS TO LABOUR ACT