The COVID-19 pandemic has highlighted a few gaps in the Labour legislation. This means that Key amendments are necessary to the Labour laws to adapt to the current challenges facing workers. These include amendments to Section 189 of the Labour Relations Act, the introduction of a 40-hour working week, the proposals to increase the Basic Conditions of Employment Act thresholds, as well as the increase to the level of severance pay.
Further engagement must be held on these as a matter of urgency and table these demands on legislative amendments to the Labour Relations Act, Basic Conditions of Employment Act, National Minimum Wage, Unemployment Insurance, Occupational Health and Safety and Compensation Fund Acts and Regulations.
On the 40 Hour work week
The Reduction of Hours of Work Recommendation, 116 of 1962 was adopted to indicate practical measures for the progressive reduction of hours of work, considering different economic and social conditions. Key provisions are:
• Countries should formulate and pursue a national policy to promote appropriate to national conditions and practice and conditions in each industry, the adoption of the principle of the reduction of normal hours of work to the standard of the 40-hour week.
• The principle of the progressive reduction of normal hours of work may be given effect through laws or regulations, collective agreements, to arbitration award or by a combination of these means consistent with national practice.
• Normal hours of work should be reduced with a view to attaining the social standard of the 40-hour week without any reduction in the wages of the workers at the time that hours are reduced.
On the BCEA Earnings Threshold
• Section 6 of the Basic Conditions of Employment Act makes provision for the Minister of Labour to publish a determination on the advice of the Commission that will exclude employees earning above a certain amount per year from sections of chapter 2 of the Act. Chapter 2 primarily deals with the regulation of working hours of employees. The current threshold is R205 433.30 per year which has been in effect since 1 July 2014.
• The earnings threshold impacts on the application of provisions of the Basic Conditions of Employment Act, 1997 (BCEA), the Labour Relations Act, 1995 (LRA) and the Employment Equity Act, 1998 (EEA).
• The Minister must bring an effect an increased Earnings Threshold by the 1 March 2021 to run concurrently with the introduction of the increased national minimum wage.
On Severance Pay
• This minimum severance pay is set by section 41 (2) of the BCEA at one week’s remuneration for each completed year of service.
• This payment has remained unchanged since statutory minimum severance pay was introduced by the LRA in 1996.
• The failure to set an adequate level of severance pay in statute undermines the job security of workers and enables employers to retrench at will.
• Section 41 (3) of BCEA provides that the Minister of Employment and Labour may vary the amount of severance pay in terms of subsection 41 (2) by notice in the Government Gazette. This variation may be done by the Minister after consulting with NEDLAC and the Public Service Co-ordinating Bargaining Council.
On Sec 189 and Sec 197 of the LRA
• Section 189 of the Labour Relations Act (“LRA”) permits employers to dismiss employees for operational requirements. These are defined as requirements based on economic, technological, structural, or similar needs of the employer.
• With Unemployment at 32.5% (expanded definition: 42.6%)
• Organised labour is of the view that the tightening of Section 189 is necessary is necessary to make retrenchments a last alternative instead of the 1st.
• Currently under section 189 of the LRA it is cheap and easy to retrench workers.
• Update illness definitions.
• Upgrade rehabilitation for workers to a legal right.
• Provide for pandemics and resulting isolation and quarantine protocols, protections, and cover; &
• Remove community representatives from COID Board as it is an employer employee contribution scheme.
• Enshrining right to refuse dangerous work; &
• Insert provisions related to pandemic and vaccine management.
Issued by COSATU
Sizwe Pamla (Cosatu National Spokesperson)
Tel: 011 339 4911
Cell: 060 975 6794
Lebogang Mulaisi (Labour Market Policy Co-ordinator)
Tel: +27 11 339-4911 / Direct: 010 219 1324 |Cell: 082 897 8222 | E-mail: firstname.lastname@example.org