Article by: Stuart Harrison, Ross Alcock and Brian Patterson
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The long awaited amendments to the LRA were finally published on Monday 18 August 2014. The date on which the amendments will come into operation is still to be fixed by the President, but the amendments are at least now in final form.
Once operative, the amendments will have far reaching consequences in a number of areas of labour relations, perhaps most prominently in relation to the regulation of forms of atypical employment, particularly the use of labour brokers, fixed term and part-time employees, but also in relation to organisational rights, picketing and other areas.
Key changes in this area include the following:
- Limiting the use of labour broker workers to genuinely temporary needs. For workers earning below the BCEA earnings threshold (currently just over R205,000 p.a.), if the worker is not performing a "temporary service" for the client (e.g. work lasting less than 3 months, replacing an absent employee, etc.), then not only is the client deemed to be the employer of the labour broker worker (with joint unfair dismissal liability, etc.), but the worker is also entitled to be treated on the whole not less favourably than an employee of the client performing the same or similar work, unless there is a "justifiable reason" for different treatment. A "justifiable reason" is limited to the application of a system that takes into account seniority, experience or length of service, merit, the quality or quantity of work performed or other criteria of a similar nature.
- Employers can only employ employees on a fixed term contract or a successive fixed term contract for longer than 3 months if the nature of the work is of a genuinely limited or definite duration or if the employer can demonstrate a justifiable reason for fixing the term of the contract. Justifiable reasons are defined and include replacing a temporarily absent employee, meeting a temporary increase (i.e. less than 12 months) in the volume of work, seasonal work, etc. If the fixed term employment does not meet these requirements, the employee is deemed to be employed indefinitely and must be treated no less favourably than an employee employed on a permanent basis performing the same or similar work, unless there is a justifiable reason for different treatment. These protections only do not apply, however, to workers earning above the BCEA earnings threshold and to small or new employers (i.e. those employing less than 10 employees or employing less than 50 where the business has been in
operation for less than two years).
- There are similar protections for part-time employees. Taking into account the working hours of the part-time employee, an employer must treat him or her on the whole not less favourably than a comparable full time employee doing the same or similar work, again unless there is a justifiable reason for different treatment. Part-time employees are also expressly now entitled to equal access to training, skills development and vacancies. As with the regulations on fixed term employees, these protections do not apply to workers earning above the BCEA earnings threshold and to small or new employers. The protections also do not apply during the first three months of part-time employment.
In anticipation of this new regulatory regime, employers should review their use of and contracts with labour brokers, fixed term contract and part-time employees, to assess whether they meet these new requirements and, if not, to develop plans to move towards compliance and/or mitigate risks.
Although there were reports in the media of the LRA's strike provisions being revisited with a view to introducing a pre-strike ballot requirement, no such requirement made it into the final amendments.
Picketing and organisational rights
Landlords will need to take notice of the aspects of the amendments that now allow for the possibility of protected picketing on a landlord's premises by the striking workers of a tenant. The CCMA will be empowered to make picketing rules allowing for protected picketing on the premises of a person other than the employer who is the subject of the strike, provided that person is given the opportunity to participate in the CCMA proceedings where the picketing rules are determined. This is an important development for those who own or control shopping malls or industrial or office parks as unions may well seek picketing rights on these premises and closer to the space rented by the tenant employer.
Organisational rights are to become more accessible to unions, as departures from the established majority and sufficient representation thresholds for the different types of organisational rights are provided for in the amendments. Clients of labour brokers and landlords can also now be bound by organisational rights (such as access to the premises to recruit members) awarded to unions.
The amendments also include a range of other changes aimed primarily at enhancing the effectiveness of the CCMA and the Labour Court, rectifying anomalies and clarifying uncertainties that have arisen in the LRA over the years.
The date on which the amendments will become operative is uncertain, but the latest indication from the Department is that it may be before the end of October 2014.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.