LABOUR LAW AMENDMENTS WEAKEN EMPLOYERS AND STRENGTHEN JOB LOSSES
The government’s unsatisfactory service delivery record is one of the reasons for its poor showing in the recent local government elections. Therefore the government’s efforts to push through minimum wage legislation may be aimed at appeasing COSATU in the hope of retaining its support in the 2019 election. This new legislation follows the rash of drastic legislative changes implemented over the past two years. These changes have already inflicted the following severe restrictions on employers:
- Fixed-term employment contracts are illegal if the employer cannot justify them on grounds that the work itself is genuinely limited in duration. Employers therefore need to convert all unjustified fixed-term contracts to permanent contracts and give the employees the relevant benefits
- Employers have to give to fixed-term employees many benefits enjoyed by their permanent colleagues
- Fixed-term employees and those employed via labour brokers are able to take employers to CCMA if they have a reasonable expectation of being offered permanent employment
- In most cases, employers have the primary legal responsibility for the rights of people placed with them by temporary employment agencies and labour brokers
- Bargaining councils may charge a levy to finance their dispute resolution services. Thus, employers could be making direct payments to enable employees to take them to conciliation and arbitration
- The Minister of Labour has the power to dictate the representivity thresholds at which employers in some industries are required to give trade unions organisational rights
- The Labour Minister has the power to increase actual wages and not only minimum wages in some industries. Thus, those employers paying wages well over the legal minimum could nevertheless be forced to pay even higher wages
- The Minister can dictate remuneration levels and other employment conditions in industries and sectors that are as yet not affected by sectoral determinations
- The powers of the state to prosecute non-compliant employers have been strengthened; and prison terms and penalties for breaches of the Basic Conditions of Employment Act have been increased as have fines for Employment Equity Act breaches
- Employers can be taken to task for failing to pay equal salaries to their employees doing the same or similar work. Failure to comply with this requirement can constitute unfair discrimination
- Employers are no longer able to use their financial circumstances and the lack of available candidates as excuses for failing to implement affirmative action
- Employers will soon be required to report to the Department of Labour the details of every job vacancy they have and to report when these are filled
- The Department of Labour will be able to offer to all people claiming UIF and to other job seekers vacant positions existing at every employer even where the employer has no intension of advertising the posts
- Brokers/agencies dealing with temporary and permanent jobs will not be able to operate without a licence and such licences could be withheld or revoked should these agencies fail to comply with statutory requirements
- Employment agencies and labour brokers will be required to limit their services to providing job seekers with career information, matching them to vacant posts and assigning them to employers
As a result of these amendments local business have stepped up their tendency to mechanise and to move their businesses or business investments to the far east and eastern Europe. Overseas businesses are more deterred than ever before from investing here in labour intensive projects. The ANC’s stated policy of creating ‘decent employment’ will be contaminated by fast accelerating ‘indecent unemployment’. I will go more deeply into the ramifications of these suicidal amendments during my next articles.
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Ivan Israelstam is the Chief Executive Officer of Labour Law Management Consulting. He is known as a leading practitioner in labour law and pragmatic labour relations management with many years experience in corporate human resources management. He has an honours degree from The University of the Witwatersrand and an IPM diploma in Personnel Management and in Training. Contact Ivan: This e-mail address is being protected from spambots. You need JavaScript enabled to view it. . |
