Law & Politics, Uncategorized

South Africa: Labour Laws

In November 2017, the National Assembly in South Africa passed several labour legislation that have effect on on both employers and employees. These include the National Minimum Wage Bill, The Basic Conditions of Employment Bill and The Labour Relations Amendment Bill.                                                                                                                                    

The National Minimum Wage Bill, the Labour Relations Bill and the Basic Conditions of Employment Bill all include amendments that govern the National Minimum Wage. Once implemented, the national minimum wage in South Africa will be R 20 per hour. This means an employee working 45 hours per week will earn approximately R 3 500 per month. Also Section 51 of the Basic Conditions of Employment Act, (BCEA) provides that the Minister of Labour may make a sectoral determination establishing basic conditions of employment for employees in a sector and area, which includes minimum wages. Sectoral determinations are in place in areas of economic activity where labour has been deemed vulnerable, such as Forestry, Agriculture, Contract Cleaning, Children in the Performance of Advertising, Artistic and Cultural Activities, Taxi Operators, Civil Engineering, Learnerships, Private Security, Domestic Workers, Wholesale and Retail and Hospitality. Once the Minimum Wage Act has been enacted, sectoral agreements, collective agreements, bargaining council agreements and employment contracts will need to comply and be aligned with the Act.  

The national minimum wage will be reviewed annually by a new National Minimum Wage Commission, based on considerations such as cost of living, inequality, health and safety as well as considerations and inflation. This however means there will be no monthly minimum wage, only an hourly minimum wage of R20 p/h. Those that work flexible hours or part time will be unable to benefit from this  if they work under 40 hours a week. For domestic and farm workers the news is worse: farm workers will earn R18 p/h, while domestic workers will receive only R15 p/h. Only in 2020 will these workers receive the full minimum wage.                                              

The Bill also seeks to limit strike action in order to prevent violent strikes. It makes provisions for the resolution of strike disputes through arbitration awards at the CCMA. The Bill clarifies that strike ballots should be done in secret by members of the trade union to determine whether a decision to strike should be made or not. Further, the Minister of Labour will also be allowed to extend collective bargaining agreements to allow for greater representation.                                  

The existing South African Labour Relations Act already sets out procedural and substantive limitations on the right to strike in South Africa, such as requiring the trade union to declare a dispute with the employment tribunal, conciliation of the dispute and providing prior notice of the strike. The right is further limited in that employees may not strike where they agreed, in a collective bargaining agreement, that they will not strike on the issues covered in the agreement – e.g. wages for that year. Employees are bound by an agreement where they agreed to refer the issue in dispute to arbitration; and they may refer the issue in dispute to the Labour Court or employment tribunal for adjudication.                                                                                                   

The proposed amendments to the Labour Relations Act would introduce measures which, although designed to minimise violent strikes, would, in fact, discourage strikes in general. For example, the amendments would require trade unions to hold secret ballots to decide on strikes. By individualising the decision to strike, the secret ballot fundamentally undermines the collective nature of a strike.Second, the proposed Labour Relations Act amendments will introduce a mechanism where strikes could be resolved through an advisory arbitration panel, which would be led by a senior commissioner of the Commission for Conciliation, Mediation and Arbitration (CCMA).                                                                                                        

The Labour Laws Amendment Bill was also passed by the National Assembly in November 2017. It provides for unpaid paternity leave, adoption leave and surrogacy leave for all employees who do not qualify for maternity leave.Under the Bill, all fathers are entitled to at least 10 days of paternity leave. Further, one adoptive parent who has adopted a child, who is less than two years old, will now be entitled to adoption leave. If there are two adoptive parents, one will be entitled to 10 consecutive weeks of adoption leave and the other will be entitled to at least 10 days of paternity leave. The new law also allows one surrogate parent to be entitled to surrogacy leave for a period of up to 10 weeks and the other parent will be entitled to at least 10 days of paternity leave. Leave will also be applicable in the event of a miscarriage or a still born during the third trimester; and fathers will be entitled to more family responsibility leave.

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