NEW LABOUR LAW IN 2019

2019 sees the introduction of a whole raft of new labour laws. There are significant amendments to the Labour Relations Act and the Basic Conditions of Employment Act; and the National Minimum Wage Act has come into effect. Regulations regarding picketing and ballots in strikes have been introduced, as well as a Code of Good Practice on Collective Bargaining, Industrial Action and Picketing.

The National Minimum Wage Act (NMWA) is an attempt by government to address poverty and wage disparities in income in South Africa, with the emphasis on the lowest paid, most vulnerable workers. Section 4 of the NMWA provides that all workers must be paid at the rate prescribed by the NMWA. For farm workers, this is R18 per hour; for domestic workers this is R15 per hour, for workers in the Expanded Public Works programme this is R11 per hour; for workers who have concluded learnership agreements in terms of the Skills Development Act, this is the allowance determined by the NQF level and credits earned by the learner and for all other workers this is R20 per hour. Note that the NMWA does not apply to employees only – it applies to ALL workers. A worker is defined as any person who works for another and who receives or is entitled to receive payment for that wage, whether in cash or in kind. There is a fine for non-compliance with the NMW which must be paid to the claimant worker. It is an unfair labour practice for an employer to unilaterally alter wages, hours of work or other conditions of employment in connection with the implementation of the NMW. So, for example, an employer cannot reduce the hours of a domestic worker and continue paying her the same salary to avoid increasing her salary to comply with the NMWA. Employers can apply for exemption from the NMWA, but they have to pay the minimum wage until the exemption is dealt with. An exemption must be applied for annually. The form and manner of applying for exemption is provided for in regulations made pursuant to the NMW. A NMW commission will review the NMW annually and make recommendations to the Minister on any adjustment to the NMW.

The amendments to the Basic Conditions of Employment Act (BCEA) were necessary, inter alia, to provide for the enforcement of the NMWA provisions. It provides for the monitoring and enforcement of the NMW and the extension of the jurisdiction of the CCMA to include enforcement procedures and claims for a failure to pay any amount owing to an employee in terms of the BCEA (or a worker in terms of the NMWA) or in terms of a sectoral determination, a collective agreement or a contract of employment. Employees and workers will now have a choice to enforce the payment of amounts due to them – such as leave pay, or overtime pay, or payment of the NMW – either through the Department of Labour or through the CCMA. The CCMA is anticipating a massive increase in its workload in consequence of this. The amendments to the BCEA also introduce three new categories of leave to which employees may be entitled: parental leave, adoption leave and commissioning parental leave.

The proposed amendments to the Labour Relations Act serve to provide, inter alia, for picketing by collective agreement or by determination by the CCMA in terms of the picketing regulations. The amendment came about as a result of the high levels of violence on the picket line that came to characterise strikes. In essence the amendment provides that a picket cannot take place unless there are picketing rules in place. If there is a dispute about picketing rules and the parties cannot reach agreement on them, the CCMA has the power to formulate binding picketing rules. The Picketing regulations provide guidance in this regard and set out default picketing rules. The Labour Relations Act also provides that Trade Unions must have a provision in their constitution which requires them to ballot their members before going out on strike. The amendments to the LRA now define a ballot as any system of voting by members that is recorded and secret. This will stop “ballots” by way of a public show of hands, for example. However, a ballot is not a prerequisite for a protected strike, and a failure to hold a recorded, secret ballot will not render an otherwise protected strike unprotected. The balloting regulations provide more guidance in regard to best practice in balloting before a strike. The new Code of Good Practice on Collective Bargaining, Industrial Action and Picketing serves, inter alia to provide practical guidance on collective bargaining, the resolution of disputes of mutual interest and the resort to industrial action. The development of such a code was necessary because of the high levels of violence during strike actions, and South Africa’s alarmingly high level of resort to strike action to resolve disputes of interest. The Code seeks to induce a behavioural change in the way employees, employers and the police and private security engage with each other during industrial action and the dispute resolution process. The various measures proposed in the code promote orderly and effective collective bargaining and includes measures to proactively and constructively resolve disputes prior to industrial action being embarked upon.