Labour Relations Amendment Bill 2012

PART 3 Insertion of sections 198A to 198D in Act 66 of 1995

The Principal Act is hereby amended by the insertion after section 198 of the following sections -
“198AApplication of section 198 to employees earning below earnings threshold
(1)In this section, ”temporary services” means work for a client by an employee -
(a)for a period not exceeding 6 months;
(b)as a substitute for an employee of the client who is temporarily absent; or
(c)in a category of work and for any period of time which is determined to be temporary services by a collective agreement concluded in a bargaining council, a sectoral determination or a notice published by the Minister, in accordance with the provisions of subsections (6) to (8).
(2) This section does not apply to employees earning in excess of the threshold prescribed by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act.
(3)For the purposes of this Act, an employee referred to in subsection (2)-
(a)performing temporary services for the client is the employee of the temporary employment service in terms of section 198(2);
(b)not performing temporary services for the client is deemed to be the employee of that client and the client is deemed to be the employer.
(4)The termination by the temporary employment service of an employee’s assignment with a client for the purpose of avoiding the operation of subsection (3)(b) is a dismissal.
(5) An employee deemed to be an employee of the client in terms of subsection (3)(b) must 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.
(6) At least three months prior to the coming into effect of this section, the Minister must by notice in the Government Gazette invite representations from the public on which categories of work should be deemed to be temporary service by notice issued by the Minister in terms of subsection (1)(c).
(7) The Minister must consult with NEDLAC before publishing a notice or a provision in a sectoral determination contemplated in subsection (1)(c).
(8) If there is conflict between a collective agreement concluded in a bargaining council, a sectoral determination or a notice by the Minister contemplated in subsection (1)(c) -
(a)the collective agreement takes precedence over a sectoral determination or notice; and
(b)the notice takes precedence over the sectoral determination.

198BFixed term contracts with employees earning below earnings threshold

(1)For the purposes of this section, a ‘fixed term contract’ means a contract of employment that terminates on -
(a)the occurrence of a specified event;
(b) the completion of a specified task or project; or
(c)a fixed date, other than an employee’s normal or agreed retirement age.
(2)This section does not apply to -
(a) employees earning in excess of the threshold prescribed by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act;
(b)an employer that employs less than 10 employees, or that employs less than 50 employees and whose business has been in operation for less than two years, unless -
(i)the employer conducts more than one business; or
(ii)the business was formed by the division or dissolution for any reason of an existing business;
(c)an employee engaged in terms of a fixed term contract that is permitted by any statute, sectoral determination or collective agreement.
(3)An employer may engage an employee on a fixed term contract or successive fixed term contracts for longer than six months of employment only if -
(a) the nature of the work for which the employee is engaged is of a limited or definite duration; or
(b) the employer can demonstrate any other justifiable reason for fixing the term of the contract.
(4)Without limiting the generality of subsection (3), the conclusion of a fixed term contract will be justified if the employee-
(a)is replacing another employee who is temporarily absent from work;
(b)is engaged on account of a temporary increase in the volume of work which is not expected to endure beyond 12 months;
(c)is a student or recent graduate who is employed for the purpose of being trained or gaining work experience in order to enter a job or profession;
(d)is engaged to work exclusively on a genuine and specific project that has a limited or defined duration;
(e)has been engaged for a trial period of not longer than 6 months for the purpose of determining the employee’s suitability for employment;
(f)is a non-citizen who has been granted a work permit for a defined period;
(g)is engaged to perform seasonal work;
(h)is engaged on an official public works scheme or similar public job creation scheme;
(i)is engaged on a position which is funded by an external source for a limited period;
(j)has reached the normal or agreed retirement age applicable in the employer’s business.
(5)Employment in terms of a fixed term contract concluded or renewed in contravention of subsection (3) is deemed to be of indefinite duration.
(6)An offer to employ an employee on a fixed term contract or to renew or extend a fixed term contract must -
(a)be in writing; and
(b) state the reason contemplated by subsection (3)(a) or (b).
(7)If it is relevant in any proceedings, an employer must prove that there was a justifiable reason for fixing the term of the contract as contemplated by subsection (3) and that the term was agreed.
(8)An employee employed on a fixed term contract for longer than six months must be treated on the whole not less favourably than an employee employed on an indefinite basis performing the same or similar work, unless there is a justifiable reason for different treatment.
(9)An employer must provide an employee employed on a fixed term contract with the same access to opportunities to apply for vacancies as it provides to an employee employed on an indefinite basis.
(10)An employer who engages an employee on a fixed term contract for a reason contemplated in subsection (4)(d) for a period exceeding 24 months must, subject to the terms of any applicable collective agreement, pay the employee on expiry of the contract one week’s remuneration for each completed year of the contract calculated in accordance with section 35 of the Basic Conditions of Employment Act.
(11)An employee who unreasonably refuses to accept an employer’s offer of employment with that employer or any other employer is not entitled to payment in terms of sub-section (10).

198CPart-time employment of employees earning below earnings threshold

(1)For the purposes of this section -
(a)A part-time employee is an employee who is remunerated wholly or partly by reference to the time that the employee works and who works less hours than a comparable full-time employee.
(b)A comparable full-time employee -
(i) is an employee who is remunerated wholly or partly by reference to the time that the employee works and who is identifiable as a full-time employee in terms of the custom and practice of the employer of that employee;
(ii) does not include a full-time employee whose hours of work are temporarily reduced for operational requirements as a result of an agreement.
(2)This section does not apply -
(a)to employees earning in excess of the threshold prescribed by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act;
(b)to an employer that employs less than 10 employees or that employs less than 50 employees and whose business has been in operation for less than two years, unless -
(i)the employer conducts more than one business; or
(ii)the business was formed by the division or dissolution for any reason of an existing business;
(c)to an employee who ordinarily works less than 24 hours a month for an employer; and
(d)during an employee’s first six months of continuous employment with an employer.
(3)Taking into account the working hours of a part-time employee, an employer must -
(a)treat a part-time employee on the whole not less favourably than a comparable full-time employee doing the same or similar work, unless there is a justifiable reason for different treatment; and
(b)provide a part-time employee with access to training and skills development on the whole not less favourable than the access applicable to a comparable full-time employee.
(4)An employer must provide a part-time employee with the same access to opportunities to apply for vacancies as it provides to full-time employees.
(5)For the purposes of identifying a comparable full-time employee, regard must be had to a full-time employee employed by the employer on the same type of employment relationship who performs the same or similar work -
(a)in the same workplace as the part-time employee; or
(b)if there is no comparable full-time employee who works in the same workplace, a comparable full-time employee employed by the employer in any other workplace.

198D General provisions applicable to sections 198A to 198C

(1) Any dispute arising from the interpretation or application of sections 198A, 198B and 198C may be referred to the Commission or a bargaining council with jurisdiction for conciliation and, if not resolved, to arbitration.
(2)For the purposes of sections 198A (5), 198B(3) and 198C(3)(a), a justifiable reason includes that the different treatment is a result of the application of a system that takes into account -
(a)seniority, experience or length of service;
(b)merit;
(c)the quality or quantity of work performed;
(d)any other criteria of a similar nature not prohibited by section 6(1) of the Employment Equity Act, 1998 (Act No. 55 of 1998).“

Amendment of section 200A of Act 66 of 1995

Section 200A of the Principal Act is hereby amended by:
(a) The substitution for subsection (1) of the following subsection -
“(1) Until the contrary is proved, for the purposes of this Act, any employment law and section 98A of the Insolvency Act, 1936 (Act 24 of 1936), a person who works for or renders services to any other person, is presumed, regardless of the form of the contract, to be an employee, if any one or more of the following factors are present:
(a)the manner in which the person works is subject to the control or direction of another person;
(b)the person’s hours of work are subject to the control or direction of another person;
(c)in the case of a person who works for an organisation, the person forms part of that organisation;
(d)the person has worked for that other person for an average of at least 40 hours per month over the last three months;
(e)the person is economically dependant on the other person for whom he or she works or renders services;
(f)the person is provided with tools of trade or work equipment by the other person; or
(g)the person only works for or renders services to one person.”

Insertion of section 200B in Act 66 of 1995

The Principal Act is hereby amended by the insertion after section 200A of the following section -
“200BLiability for employer’s obligations
(1)For the purposes of this Act and any other employment law, an “employer” includes one or more persons who carry on associated or related activities or businesses by or through an employer if the intent or effect of their doing so is or has been to directly or indirectly defeat the purposes of this Act or any other employment law.
(2)If more than one person is held to be the employer of an employee in terms of subsection (1), those persons are jointly and severally liable for any failure to comply with the obligations of an employer in terms of this Act or any other employment law.”

Amendment of section 203 of Act 66 of 1995

Section 203 of the Principal Act is hereby amended by the insertion after subsection (2) of the following subsections -
“(2A) The Minister may issue a code of good practice by publishing it in the Government Gazette in accordance with the provisions of this section if -
(a) proposals relating to the code of good practice have been tabled and considered by NEDLAC;
(b) NEDLAC has reported to the Minister that it has been unable to reach agreement on the matter.
(2B) Subsection (2A) applies to the change or replacement of an existing code of good practice.”

Amendment of section 213 of Act 66 of 1995

The Principal Act is hereby amended by:
(a) The substitution for paragraph (a) of the definition of ‘employment law’ of the following paragraph -
“(a) the Unemployment Insurance Act, [1966 (Act No. 30 of 1966)] 2001 (Act No. 63 of 2001) and the Unemployment Insurance Contributions Act, 2002 (Act No. 4 of 2002).”
(b) The substitution for the definition of ‘serve’ of the following definition -
‘serve’ means to send by registered post, telegram, telex, telefax or to deliver by hand [.] and -
(a)in respect of the Labour Courts, any other method of service specified in the Rules of the Labour Courts;
(b)in respect of the Commission, any other method of service specified in the Rules of the Commission;
(c)in respect of a bargaining council, any other method of service specified in a collective agreement concluded in the bargaining council.”

Amendment of item 27 in Part H of Schedule 7 of Act 66 of 1995

Item 27(1) is hereby amended by the substitution of “section 115(2A)(m)” with “section 115(2A)(k)”.

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