Labour Relations Amendment Bill, 2012

PART 1

PART 2
PART 3

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:

To amend the Labour Relations Act, 1995 (Act No. 66 of 1995) to facilitate the granting of organisational rights to trade unions that are sufficiently representative; to require the holding of ballots by trade unions and employers’ organisations prior to calling a strike or lock-out; to strengthen the status of picketing rules and agreements and to clarify the powers of the Labour Court in respect of breaches of picketing rules or agreements; to revise the operation and composition of the essential services committee and to provide for minimum service determinations; to allow for the Labour Court to appoint trade union administrators if trade unions are unable to perform their functions; to revise provisions regulating the operation of the Commission for Conciliation, Mediation and Arbitration; to regulate the terms of appointment and remuneration of judges of the Labour Court; to enable judges of the Labour Court to serve on the Labour Appeal Court; to limit the protection of employees earning above an earnings threshold to dismissal for a reason that is automatically unfair; to further regulate enquiries by arbitrators; to further protect workers placed by temporary employment services; to regulate the employment of employees earning below an earnings threshold on fixed-term contracts or as part-time employees; to apply the presumption of employment to other legislation; to further specify the liability for employer’s obligations; and to make additional amendments concerning the implementation, application and interpretation of the Labour Relations Act, 1995.

Amendment of section 21 of Act 66 of 1995

1.Section 21 of Act 66 of 1995 (hereafter referred to as the Principal Act) is hereby amended by:
(a) The substitution for paragraph (b) of subsection (8) of the following paragraph -
“(b) must consider -
(i)the nature of the workplace;
(ii)the nature of the one or more organisational rights that the registered trade union seeks to exercise;
(iii)the nature of the sector in which the workplace is situated; [and]
(iv)the organisational history at the workplace or any other workplace of the employer; and
(v)the composition of the workforce in the workplace taking into account the extent to which there are employees assigned to work by temporary employment services, employees engaged on fixed-term contracts, part-time employees or employees in other categories of non-standard employment; and”.
(b)The insertion after subsection (8) of the following subsections -
“(8A) Subject to the provisions of subsection (8), a commissioner may in an arbitration conducted in terms of section 22(4) grant a registered trade union that does not have as members the majority of employees employed by an employer in a workplace-
(a)the rights referred to in section 14, despite any provision to the contrary in that section, if -
(i)the trade union is entitled to all of the rights referred to in sections 12, 13 and 15 in that workplace; and
(ii)no other trade union has been granted the rights referred to in section 14 in that workplace.
(b)the rights referred to in section 16, despite any provision to the contrary in that section, if -
(i)the trade union is entitled to all of the rights referred to in sections 12, 13, 14 and 15 in that workplace; and
(ii)no other trade union has been granted the rights referred to in section 16 in that workplace.

(8B) A right granted in terms of subsection (8A) lapses if the trade union concerned is no longer the most representative trade union in the workplace.

(8C) Subject to the provisions of subsection (8), a commissioner may in an arbitration conducted in terms of section 22(4) grant the rights referred to in sections 12, 13 or 15 to a registered trade union, or two or more registered trade unions acting jointly, that do not meet thresholds of representativeness established by a collective agreement in terms of section 18 if -

(a)all parties to the collective agreement have been given an opportunity to participate in the arbitration proceedings; and

(b)the trade union, or trade unions acting jointly, represent a significant interest, or a substantial number of employees, in the workplace.

(8D) In determining a dispute referred to in subsection (8) the commissioner may, despite any provision to the contrary in sections 14, 16 and 18, but subject to the provisions of subsection (8) -

(a) grant the rights referred to in section 14 to a registered trade union that does not have as members the majority of employees employed by an employer in a workplace if -
(i)the trade union is entitled to all of the rights referred to in sections 12, 13 and 15 in that workplace; and
(ii)no other trade union has been granted the rights referred to in section 14 in that workplace.

(b) grant the rights referred to in section 16 to a registered trade union that does not have as members the majority of employees employed by an employer in a workplace if -
(i)the trade union is entitled to all of the rights referred to in sections 12, 13, 14 and 15 in that workplace; and
(ii)no other trade union has been granted the rights referred to in section 16 in that workplace.

(c)grant the rights referred to in sections 12, 13, or 15 to a registered trade union, or two or more registered trade unions acting jointly, that do not meet thresholds of representativeness established by a collective agreement in terms of section 18 if -

(i) all parties to the collective agreement have been given an opportunity to participate in the arbitration proceedings; and

(ii)the trade union or trade unions acting jointly seeking the rights represent a significant interest, or a substantial number of employees, in the workplace.”
(c)The insertion after subsection (11) of the following subsection -
“(12) If a trade union seeks to exercise rights conferred by this Part in respect of employees of a temporary employment service, it may seek to exercise those rights in a workplace of either the temporary employment service or one or more clients of the temporary employment service, and if it exercises rights in a workplace of the temporary employment service, any reference in this Chapter to the employer’s premises must be read as including the client’s premises.”

Amendment of section 22 of Act 66 of 1995

2.Section 22 of the Principal Act is hereby amended by the insertion after subsection (4) of the following subsection -
“(5) An arbitration award in terms of this Part may be made binding on the employer and in addition -
(a) to the extent that it applies to the employees of a temporary employment service, a client of the temporary employment service for whom an employee covered by the award is assigned to work;
(b) any person other than the employer who controls access to the workplace to which the award applies, if that person has been given an opportunity to participate in the arbitration proceedings.”

Amendment of section 32 of Act 66 of 1995

3.Section 32 of the Principal Act is hereby amended by:
(a)The insertion after paragraph (d) of subsection (3) of the following paragraphs -
“(e) the bargaining council has in place an effective procedure to deal with applications by non-parties for exemptions from the provisions of the collective agreement and is able to decide an application for an exemption within 30 days;

[(e)] (f) provision is made in the collective agreement for an independent body to hear and decide, as soon as possible and in any event no later than 30 days after the appeal is lodged, any appeal brought against -
(i)the bargaining council’s refusal of a non-party’s application for exemption from the provisions of a collective agreement;
(ii)the withdrawal of such an exemption by the bargaining council.”
(b)The insertion after subsection (3) of the following subsection -
“(4) No representative, office-bearer or official of a trade union or employers’ organisation party to the bargaining council may be a member of, or participate in the deliberations of, the appeal body established in terms of subsection 3(f).”
(c)The insertion after paragraph (b) of subsection (5) of the following paragraphs -
“(c) the Minister has published a notice in the Government Gazette stating that an application for an extension in terms of this subsection has been received, stating where a copy may be inspected or obtained, and inviting comment within a period of not less than 21 days from the date of the notice; and
(d) the Minister has considered any comments received during the period referred to in (c).”
(d)The insertion after subsection (5) of the following subsection -
“(5A) When determining whether the parties to the bargaining council are sufficiently representative for the purposes of subsection (5)(a), the Minister may take into account the composition of the workforce in the sector, including the extent to which there are employees assigned to work by temporary employment services, employees engaged on fixed-term contracts, part-time employees or employees in other categories of non-standard employment.”
(e)The insertion after subsection (10) of the following subsection -
“(11) A bargaining council that has a collective agreement extended in terms of this section must ensure that the independent appeal body is able to determine appeals within the period specified in subsection 2(f).”

Amendment of section 49 of Act 66 of 1995

4.Section 49 of the Principal Act is hereby amended by the substitution for subsections (2) to (4) of the following subsections -
“ (2) A bargaining council, having a collective agreement that has been extended by the Minister in terms of section 32, must inform the registrar annually, in writing, on a date to be determined by the registrar, as to the information specified in subsection (3) and, in addition, the number of employees who are -
(a)covered by the collective agreement;
(b)members of the trade unions that are parties to the agreement;
(c)employed by members of the employers’ organisations that are party to the agreement.

(3) A bargaining council other than one contemplated by subsection (2) must, on request by the registrar, inform the registrar in writing within the period specified in the request as to the number of employees who are -
(a)employed within the registered scope of the council;
(b)members of the trade unions that are parties to the council;
(c)employed by members of the employers’ organisations that are party to the council.

(4) A determination of the representativeness of a bargaining council in terms of this section is sufficient proof of the representativeness of the council for the year following the determination for any purpose in terms of this Act, including a decision by the Minister in terms of section 32 (3)(b) and (c) and section 32 (5).”

Amendment of section 51 of Act 66 of 1995

5.Section 51 of the Principal Act is hereby amended by the substitution for subsection (9) of the following subsection -
“(9) A bargaining council may by collective agreement [,] -
(a)establish procedures to resolve any dispute contemplated in this section [.];
(b)provide for the payment of a dispute resolution levy; and
(c)provide for the payment of a fee in relation to any conciliation or arbitration proceedings in respect of matters for which the Commission may charge a fee in terms of section 115(2A)(l) and which may not exceed that fee.”

Amendment of section 64 of Act 66 of 1995

6.Section 64 of the Principal Act is hereby amended by:
(a)The substitution for paragraph (a) of subsection (1) of the following paragraph -
“(a) the issue in dispute has been referred to a council or to the Commission as required by this Act, and -
(i)a certificate stating that the dispute remains unresolved has been issued; or
(ii)a period of 30 days, or any extension of that period agreed to between the parties to the dispute, has elapsed since the referral was received by the council or the Commission; and [after that -]
(iii)the trade union or employers’ organisation, as the case may be, has conducted a ballot of its members in good standing who are entitled to strike or lock-out in terms of this section in respect of the issue in dispute; and
(iv)a majority of the members of the trade union or employers’ organisation who voted in that election have voted in favour of the strike or lock-out; and after that - “.

(b)The insertion after subsection (5) of the following subsection -
“(6) A certificate issued by the Commission, a bargaining council or an agency accredited in terms of section 127(1)(c) that a trade union or employers’ organisation has conducted a ballot in compliance with subsections (1)(a)(iii) and (iv) is proof that the trade union or employers’ organisation has complied with those provisions.”

Amendment of section 65 of Act 66 of 1995

7.Section 65 of the Principal Act is hereby amended by:
(a)The substitution for paragraph (c) of subsection (1) of the following paragraph -
“(c) the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court in terms of this Act or any other employment law;”.
(b)The substitution for paragraph (b) of subsection (3) of the following paragraph -
“(b) any determination made in terms of [the Wage Act] Chapter Eight of the Basic Conditions of Employment Act and that regulates the issue in dispute, during the first year of that determination.”

Amendment of section 67 of Act 66 of 1995

8.Section 67 of the Principal Act is hereby amended by -
(a) The substitution for subsection (7) of the following subsection -
“(7) Despite the provisions of section 64(1)(a)(iii) and (iv), t[T]he failure by a registered trade union or a registered employers’ organisation to comply with a provision in its constitution requiring it to conduct a ballot of those of its members in respect of whom it intends to call a strike or lock-out may not give rise to, or constitute a ground for, any litigation that will affect the legality of, and the protection conferred by this section on, the strike or lock-out.”
(b) The substitution for subsection (8) of the following subsection -
“(8) The provisions of subsections (2) and (6) do not apply to any act in contemplation or in furtherance of a strike or a lock-out, if that act is an offence or is a material breach of a picketing agreement established in terms of section 69(4) or a picketing rule established in terms of section 69(5).”
(c) The deletion of subsection (9).

Amendment of section 69 of Act 66 of 1995

9.Section 69 of the Principal Act is hereby amended by:
(a)The substitution for subsection (1) of the following subsection -
“(1) A registered trade union may authorise a picket by its members [and supporters] for the purposes of peacefully demonstrating -
(a) in support of any protected strike; or
(b) in opposition to any lock-out.”
(b)The substitution for subsection (6) of the following subsection -
“(6) The rules established by the Commission may provide for picketing by employees -
(d)in a place contemplated by section 69(2)(a) which is owned or controlled by a person other than the employer, if that person has had an opportunity to make representations to the Commission before the rules are established;
(e)on their employer’s premises if the Commission is satisfied that the employer’s permission has been unreasonably withheld.”
(c)The substitution for subsection (8) of the following subsection -
“(8) Any party to a dispute about any of the following issues, including a person contemplated by subsection (6)(a), may refer the dispute in writing to the Commission -
(a)an allegation that the effective use of the right to picket is being undermined;
(b)an alleged material contravention of subsection (1) or (2);
(c)an alleged material breach of an agreement concluded in terms of subsection (4); or
(d)an alleged material breach of a rule established in terms of subsection (5).”
(d)The insertion after subsection (11) of the following subsections -
“(12) If a party has referred a dispute in terms of subsection (8) or (11), the Labour Court may grant relief, including urgent interim relief, which is just and equitable in the circumstances and which may include -
(a)an order directing any party, including a person contemplated by subsection (6)(a), to comply with a picketing agreement or rule;
(b) an order varying the terms of a picketing agreement or rule;
(c)in the case of a trade union, suspending the picket or strike;
(d)in the case of an employer, suspending the engagement of replacement labour even in circumstances in which this is not otherwise precluded by section 76 or suspending the lock-out.
(13) The Labour Court may not grant an order in terms of subsection (12) unless -
(a) 48 hours’ notice of an application seeking relief referred to in subsection (12)(a) or (12)(b) has been given to the respondent;
(b) 72 hours’ notice of an application seeking relief referred to in subsection (12)(c) or (12)(d) has been given to the respondent.
(14) The Labour Court may permit a shorter period of notice than required by subsection (13) if -
(a) the applicant has given written notice to the respondent of its intention to apply for the order;
(b) the respondent has been given a reasonable opportunity to be heard before a decision concerning the application is taken; and
(c) the applicant has shown good cause why a period shorter than 48 hours should be permitted.”

Amendment of section 70 of Act 66 of 1995

10.The Principal Act is hereby amended by the substitution for section 70 of the following section ?
“The Minister, after consulting NEDLAC, must establish an essential services committee under the auspices of the Commission in accordance with the provisions of this Act.”

Insertion of sections 70A - 70F in Act 66 of 1995

11.The Principal Act is hereby amended by the insertion after section 70 of the following sections ?
“70AThe composition of the essential services committee
(1)The Minister must appoint to the essential services committee on any terms that the Minister considers fit ?
(a)an independent chairperson, who may be a senior commissioner;
(b)a deputy chairperson who must be a senior commissioner; and
(c)six persons nominated in accordance with the provisions of subsections (3) and (4).
(2)A member of the essential services committee -
(a)must be a citizen of South Africa, who is ordinarily resident in South Africa, or a permanent resident of South Africa;
(b)must have suitable qualifications or experience in labour law, labour relations, commerce, industry or a sector of the economy, public affairs or the administration of justice; and
(c)may not be an unrehabilitated insolvent or subject to an order of a competent court holding that person to be mentally unfit or disordered.
(3)Organised business, labour and government at NEDLAC must each nominate to the Minister the names of two persons to be appointed to the essential services committee.
(4)The Minister must appoint the persons nominated by organised business, labour and government at NEDLAC if these persons meet the requirements set out in subsection (2).
(5)The Minister may fill any vacancy that arises in accordance with the provisions of this subsection.
(6)A member of the essential services committee may not represent any person before a panel of the essential services committee, but may be appointed by the trade union and employer parties to serve as an assessor in terms of section 70C.

70B Powers and functions of the essential services committee

(1)The powers and functions of the essential services committee are to -
(a)monitor the implementation and observance of essential service determinations and minimum service agreements and determinations;
(b)promote effective dispute resolution in essential services;
(c)develop guidelines for the negotiation of minimum service agreements;
(d)decide, on its own initiative or at the reasonable request of any interested party, whether to institute investigations as to whether or not the whole or a part of any service is an essential service;
(e)manage its caseload; and
(f)appoint panels contemplated in section 70C to perform one or more of the functions set out in section 70D.
(2)At the request of a bargaining council, the essential services committee must establish a panel to perform any function in terms of section 70D (1).
(3)The essential services committee may request the Commission or any other appropriate person to conduct an investigation to assist the essential services committee in an investigation and to submit a report to it.

70C Appointment of panels

(1)The essential service committee must, taking into account the complexity of the issue, assign each matter before it to a panel consisting of either three or five persons, including the assessors referred to in subsections (3) and (4).
(2)A panel must be presided over by the chairperson or deputy chairperson of the essential service committee or by a senior commissioner referred to in subsection (3).
(3)The Commission must compile a list of suitably trained senior commissioners who may preside at panel hearings.
(4)If the essential services committee constitutes a three member panel, it must either -
(a)appoint two of its members to serve as assessors; or
(b)invite the employer and trade union parties participating in the hearing to each nominate an assessor.
(5)If the essential services committee constitutes a five member panel, it must -
(a)appoint two of its members to serve as its assessors; and
(b)invite the employer and trade union parties participating in the hearing to each nominate an assessor.
(6)If the essential committee appoints assessors from its members to serve on a panel, it must appoint one who was nominated to the essential services committee by -
(a)organised labour; and
(b)organised business or government, depending on the sector concerned.
(7)A member of the essential services committee may be nominated to serve as an assessor in terms of subsections (4)(b) and (5)(b).
(8)The essential services committee may appoint the assessor if the trade union or employer parties participating in the hearing fail to nominate an assessor in terms of subsections (4)(b) and (5)(b) within the period prescribed in its regulations.
(9)When appointing or nominating an assessor in terms of subsections (4) to (8), the essential services committee, and any party to a matter before it, must take into account the person’s skills, experience, expertise and knowledge of the sector concerned.

70D Powers and functions of a panel

(1)The powers and functions of a panel appointed by the essential services committee are to ?
(a)conduct investigations as to whether or not the whole or a part of any service is an essential service;
(b)determine whether or not to designate the whole or a part of that service as an essential service;
(c)determine disputes as to whether or not the whole or a part of any service falls within the scope of a designated essential service;
(d)determine whether or not the whole or a part of any service is a maintenance service;
(e)ratify a collective agreement that provides for the maintenance of minimum services in a service designated as an essential service; and
(f)determine, in accordance with the provisions of this Act, the minimum services required to be maintained in the service that is designated as an essential service.
(2)The presiding member of the panel must determine any question of procedure or law, including whether an issue is a question of procedure or law.
(3)The chairperson of the essential services committee or any person contemplated in section 70C(2) presiding at a hearing may, sitting alone, make an order?
(a)extending or reducing any period prescribed by the rules of the essential services committee; and
(b)condoning the late performance of an act contemplated by the rules of the essential services committee.
(4)Subject to subsections (2) and (3), the decision or finding of the majority of the panel is the decision of the essential services committee.
(5)The decision of a panel must be in writing and signed by the person referred to in section 70C(2), and include the reasons for that decision.
(6)A panel appointed by the essential services committee may make any appropriate order relating to its functions.

70E Jurisdiction and administration of the essential services committee

(1)The essential services committee has jurisdiction in all the provinces of the Republic.
(2)The seat of the essential services committee is the Commission’s head office.
(3)The functions of the essential services committee, including the functions of the panels, may be performed at any place in the Republic.
(4)The Commission must administer the essential services committee.
(5)The director is the accounting officer of the essential services committee and must allocate adequate resources to the essential services committee in order for it to perform its functions.
(6)The director may appoint staff to the essential services committee after consulting the essential services committee and the governing body, and the governing body must determine their remuneration and other terms and conditions of appointment.
(7)The allowances of members of the essential services committee, assessors and persons appointed to investigate matters are determined by the Minister of Finance.
(8)The essential services committee will be financed and provided with working capital from?
(a)the moneys that Parliament may appropriate to the Commission from time to time in terms of section 122; and
(b)grants, donations and bequests made to it.

70F Regulations of the essential services committee

(1)The Minister, after consulting the essential services committee, may make regulations concerning any matter related to the functioning of the committee and of panels appointed by the essential services committee.
(2)The rules made by the Commission in terms of section 115 (2)(cA)(ii) remain in force until replaced by regulations made in terms of subsection (1).”

Amendment of section 71 of Act 66 of 1995

12.The Principal Act is hereby amended by the substitution for subsections (8) and (9) of section 71 of the following subsections -
“(8)If the panel appointed by the essential services committee designates the whole or a part of a service as an essential service, the essential services committee must publish a notice to that effect in the Government Gazette.
(9) A panel appointed by the [E]essential services committee may vary or cancel the designation of the whole or a part of a service as an essential service or any determination of a minimum service or ratification of a minimum service agreement, by following the provisions set out in subsections (1) to (8), read with the changes required by the context.”

Insertion of section 71A in Act 66 of 1995

13.The Principal Act is hereby amended by the insertion after section 71 of the following section ?
“71A Public officials exercising authority in the name of the state
(1)In this section “public officials exercising authority in the name of the state” mean customs’ officials, immigration officers, judicial officers and officials working in the administration of justice.
(2)In accordance with section 71 a panel appointed by the essential services committee may?
(a)refer to mediation at the Commission or a bargaining council the conclusion of a collective agreement that provides for the maintenance of minimum services in a service provided by public officials exercising authority in the name of the state;
(b)determine whether or not to ratify a collective agreement that provides for the maintenance of minimum services in a service provided by public officials exercising authority in the name of the state;
(c)determine the minimum services required to be maintained in that service, if a collective agreement contemplated in sub-paragraph (b) is not ratified with the period or periods determined by the essential services committee.
(3)The services provided by public officials exercising authority in the name of the state will be deemed to be an essential service and to have been designated an essential service in terms of this section when a collective agreement contemplated in subsection (2)(b) is ratified or minimum services contemplated in subsection (2)(c) are determined.
(4)After following the provisions set out in section 71(1) to (8), read with the changes required by the context, a panel appointed by the essential services committee may vary or cancel ?
(a)the designation of the whole or a part of a service provided by public officials exercising authority in the name of the state;
(b)the ratification of a collective agreement that provides for the maintenance of minimum services in a service provided by public officials exercising authority in the name of the state; or
(c)any determination of a minimum service contemplated in subsection 2(c).”

Amendment of section 72 of Act 66 of 1995

14.The Principal Act is hereby amended by the substitution for section 72 of the following section -
“72Minimum services
(1)When making a determination in terms of section 71, a panel of the essential service committee may issue an order?
(a)directing the parties to negotiate a minimum services agreement contemplated by section 72 within a period specified in the order;
(b)if an agreement is not negotiated within the specified period, permitting either party to refer the matter to mediation at the Commission or a bargaining council having jurisdiction.
(2)If the parties fail to conclude a collective agreement providing for the maintenance of minimum services or if a collective agreement is not ratified, a panel appointed by the essential services committee may determine the minimum services that are required to be maintained in an essential service.
(3)If a panel appointed by the essential services committee ratifies a collective agreement that provides for the maintenance of minimum services in a service designated as an essential service or if it determines such a minimum service which is binding on the employer and the employees involved in that service, then?
(a)the agreed or determined minimum services are to be regarded as an essential service in respect of the employer and its employees; and
(b)the provisions of section 74 do not apply.
(4)A minimum service determination -
(a)is valid until varied or revoked; and
(b)may not be varied or revoked for a period of 12 months after it has been made.
(5)Despite sub-sections (3) and (4), section 74 applies to a designated essential service in respect of which the essential services committee has made a determination of minimum services if the majority of employees employed in the essential services voted in a ballot in favour of this.
(6)Subsection (5) does not apply to a dispute in respect of which a notice of a strike or lock-out has been issued prior the holding of the ballot.
(7)Despite subsection (4), a panel may vary a determination by ratifying a collective agreement concluded between or on behalf of one or more ?
(a)trade unions representing a majority of the employees covered by the determination; and
(b)employers employing the majority of the employees covered by the determination.
(8)Any party to negotiations concerning a minimum service agreement may, subject to any applicable collective agreement, refer a dispute arising from those negotiations to the Commission or a bargaining council having jurisdiction for conciliation and, if an agreement is not concluded, to the essential service committee for determination.”

PART 2
PART 3