Glenda Daniels Peace between labour and business has replaced blood on the streets as ructions in amendments to the Labour Relations Act (LRA) are finally over. The amendments are now with the National Council of Provinces and are expected to become law in February next year. The most fraught issues negotiating retrenchments, the right to strike over retrenchments and double pay for Sunday work have been resolved to the satisfaction of labour and business. What this means, says Rams Ramashia, director general of the Department of Labour, is that the debate about inflexibility in the labour market should now finally end too. The government has had to walk a tightrope between labour and business over the past two years to finalise labour relations amendments that began in the Millennium Labour Council (MLC). But the deal was cracked in the National Economic and Development Labour Council (Nedlac) last month. “Both business and labour have won major concessions. There will be no blood on the streets talk from labour now. Business has made concessions but gained too. At the last sitting of Parliament in November, the African National Congress fully supported the amendments, while parties such as the Democratic Party and the Inkatha Freedom Party said they could live with it,” says Ramashia. One of the biggest bugbears for employers, Section 189, which spells out the employers obligation to negotiate over retrenchments, will become a thing of the past. Section 189A specifies “meaningful consensus-seeking” instead of negotiating on retrenchment. “This is stronger than consulting but not as strong as negotiating,” says Ramashia.
Leslie Boyd, the Anglo American executive who headed the business delegation to the MLC, says that in the final analysis this also means employers will have the final say about whether to retrench. But the labour convenor at Nedlac, Ebrahim Patel, says that for labour “meaningful” means that there must be a “genuine endeavour” by employers to make every effort to avoid retrenchment.
As a trade-off, employers have accepted the right to strike over retrenchment.
“This is in keeping with international practice, according to research by the International Labour Organisation,” Boyd says. And while double pay for Sunday work has been maintained in labours favour, businesss real concern was always the question of how small businesses would survive double pay. The new amendments exempt small businesses those that employ fewer than 30 people from paying double time on Sunday. In addition, certain industries regarded as small business growth sectors, such as security and tourism, will be exempted from the double-pay provision. Employers have also gained on the issue of probationary employees, who can now be more easily dismissed. If after three months probation an employee does not fit the work culture, or has not performed satisfactorily, the employees services can be terminated without going through lengthy and costly procedures. Another amendment will combine conciliation and arbitration into a one-stop disciplinary process, which could include the use of a private facilitator. This will speed up the resolution of disputes and save costs. Unions won the right to choose between going to the Labour Court or striking over a dispute. Initially the disagreement between labour and business was over labours demand for the right to strike and go to the Labour Court. All parties agreed that the LRA should provide for the appointment of labour court judges simultaneously as judges of the high court, with the same pay and conditions. From next year workers will have more clarity over what happens when a company goes into liquidation. Workers will not be prejudiced in terms of pensions and provident and medical aid benefits in the event of insolvency, and unions must be informed if liquidation is imminent. The Commission for Conciliation, Mediation and Arbitration will remain a free service for low income-earners, such as domestic workers, but higher earners may be charged so that the commission does not become over-burdened or abused. Ramashia says the parties sweated it out behind closed doors to hammer the agreements that balance market flexibility with workers rights. The spin-offs, he said, should be better economic growth and more job creation.