Despite a revolutionary new proposal, there are still several stumbling blocks in the labour legislation
Glenda Daniels
Amendments to the Labour Relations Act recently hailed as a major breakthrough between labour, business and the government remain bedevilled by controversial sticking points and may not see the light of day this year.
Hitches remain over the right to strike on retrenchments, seen as the major concession by business. Also unresolved are the issues of double pay for Sunday work, workers’ right of direct access to the Labour Court, and payment for the services of the Commission for Conciliation, Mediation and Arbitration (CCMA).
This week Parliament’s labour committee will collate public submissions made last week, before refinements are tabled.
However, the parties appear to be on the brink of agreement on a “revolutionary” amendment to the law on unfair dismissals. It is proposed that pre-dismissal arbitration should be allowed.
Such arbitration will eliminate the obligation to hold in-house disciplinary inquiries and appeals. “This will be a mega money- and time-saver to the economy. At the same time workers’ fundamental right not to be unfairly dismissed will not be eroded,” John Brand, director of the Arbitration and Mediation Service of South Africa, said this week.
“This move is revolutionary and heartening. If you allow for private arbitration you cut massive costs and time-wasting in terms of reviews. It will help cut the CCMA’s overload. It will also suit workers, as they will have an unbiased expert at the beginning,” said Brand.
Workers and trade unions have complained that management chairs internal inquiries, leading to bias. If the amendment becomes law, the two disputing parties can elect a private arbitrator acceptable to both sides and the decision will be final and binding, says labour consultant Brian Greenstein, of NMG-Levy.
Pre-dismissal arbitration is a tactical move to cut the burden on the CCMA, which has a backlog of about six to eight months with about 340 cases referred daily.
Greenstein says the amendments’ provision for “con-arb” (conciliation and arbitration) in one hearing will make for greater efficiency. Workers will not have to wait for up to 18 months after a failed conciliation before arbitration takes place. “Con-arb” can be used in cases of dismissal on probation, unfair labour practice, dismissal for misconduct and incapacity, constructive dismissal and if an employee does not know the reason for a dismissal.
Pre-dismissal arbitration would also do away with the concept of procedural unfairness, says chief director of labour relations Lisa Seftel. At present a worker who is clearly guilty of an offence can escape discipline and win compensation if management does not adhere to correct procedures. Pre-dismissal arbitration, Seftel says, will benefit small businesses that are often ignorant of procedures and lack the resources to hire consultants.
Despite this deadlock-breaking proposal, there are still several outstanding stumbling blocks in the legislation, says Salie Manie, chairperson of Parliament’s labour committee. Manie indicated that there could be delays in passing the amendments.
Double pay for Sunday work remains contentious, he says, with labour angling to maintain the status quo. Greenstein says double pay for Sunday work will be to the detriment of the small business sector, viewed by the government and business as a key growth area, and an engine for job creation and black empowerment. Double pay for Sunday work will “thwart growth opportunities”, he says. More than 400 companies employing 4000 workers last year applied for exemptions on Sunday pay and hiring and firing procedures.
Labour and business are still at odds over the controversial Section 189 of the Labour Relations Act the right to strike over retrenchments. Manie says labour now feels the time frame for restructuring before retrenchments is too short, while business feels that in emergencies companies must be able to act with speed.
“Workers cannot sustain a strike over retrenchments,” Greenstein says, “Cosatu [the Congress of South African Trade Unions] was off the mark when it called for negotiations over retrenchments instead of consultation.”
Manie says Parliament also heard a debate over the “elective rights” of workers in cases of threatened retrenchment. Business feels workers should have only the right to strike, while the government and labour feel workers should be able to choose between strike action and direct access to the labour court.
Payment for CCMA services remains a thorny question. Some analysts believe payment could eliminate the problem of spurious and frivolous cases flooding the commission. Unions believe industrial justice should be freely available to workers.
Business will welcome the amendment on probationary employment. If adopted, it will give employers greater flexibility to dismiss probationary workers on the basis of poor performance and incompatibility with the working culture. Employers will only be required to demonstrate procedural fairness. At present, it is difficult to dismiss probationary employees, as they can approach the CCMA on the basis that the dismissal is substantively unfair.
Greenstein says the amendments are a step in the right direction, but that more will follow. “There will be further changes down the line, with more flexibility to enhance growth opportunities, and increasing emphasis on private arrangements to resolve disputes.”