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Glenda Daniels
About 400 businesses, involving approximately 400 000 workers, have applied for exemptions from the Basic Conditions of Employment Act (BCEA). This includes South African Airways (SAA), the South African Chamber of Mines, Eskom, and welfare institutions and small businesses.
About 21 000 workers are affected at the Chamber of Mines, more than 10 000 at SAA and Eskom, and more than 10 000 staff working for individual organisations.
Given this situation, business is hoping that Minister of Labour Membathisi Mdladlana will have no option but to review the whole of the BCEA, while the labour movement will oppose what they regard as losing hard-won gains in terms of conditions of employment.
The team given the task by the government to make amendments to labour laws in the country, to create more investor-friendly reforms, has completed its report, which is now with the Cabinet for approval.
Lisa Seftel, Director General of labour relations at the Department of Labour, said the amendments would be released soon. There are no obstacles and no back- tracking, and expected amendments will go ahead.
The contentious issues arise over payment for overtime, averaging of hours in a working week, meal intervals, payment for work on Sundays, night work, family responsibility leave and public holidays.
Much of the labour regulation debate has focused on the effects on small business development and job creation. At the centre of the debate is that labour legislative reform has undermined the creation of an environment suitable for the growth of small business.
While small businesses are being hailed as the engine for job creation and black empowerment, to achieve these goals they must be exempted from labour regulations. However, according to recent research by Naledi, the research wing of the Congress of South African Trade Unions (Cosatu), there is no evidence to support this assertion.
A study among small businesses in Gau- teng and Mpumalanga showed that small businesses face a number of constraints, but labour regulations rank below access to finance, demand for product, general state of the economy and interest rates.
Therefore, the focus on exempting small business from labour regulations is unlikely to address the real problem, Naledi’s study showed.
Also related to small businesses is the extension of bargaining-council agreements on wages. Here there are two views: to have low wages rather than no wages, or across- the-industry minimum standards from which small businesses should not be exempt.
Small businesses believe this will ruin them. They want to be exempt from the unfair dismissal law where hiring and firing is risky. The review is likely to introduce a period of probation where there is less protection for the new employee.
Measures to stop the overloading of the Commission for Conciliation, Mediation and Arbitration (CCMA), such as ensuring the institution is not a free service, are likely to be taken. The institution should be used as the final channel after workplace avenues are exhausted. Amendments are likely to try to exclude “consultants” and bogus trade unions representing clients at the CCMA.
Organised labour is not expected to be granted its demand on Section 189 of the Labour Relations Act, for employers to negotiate retrenchments with unions.
However, the government is expected to concede on the Insolvency Act, where Cosatu is demanding that workers be the principle creditors when companies get liquidated.
Sunday premium pay is likely to be taken away. The BCEA had increased this from time-and-a-half to double pay. In terms of overtime, employers may be disappointed that there are no plans to reduce standard overtime rates from time- and-a-half back to time-and-a-third.
Employers find compulsory family responsibility leave burdensome and would like this to be taken off annual leave. A reduced working week will hinder productivity levels and employers feel that employers and employees should be allowed to average their working-week hours without limitation.
In terms of the averaging of working hours, the employee may not work for more than 45 hours a week, and may not work more than 10 hours of overtime a week. Unions might lose this one as they have been campaigning for a 40-hour week for decades.