Those old enough to remember the labour relations environment in the 1980’s will remember the emergence of Recognition Agreements. The then Labour Relations Act had no codification of trade union rights, or what we today refer to as ‘organisational rights’. Way back then, emerging trade unions had to attempt to strong arm employers into ‘recognising’ them, and in so doing, grant the trade union stop-order, access, and shop steward rights.
And if union representation grew to majority representation, collective bargaining rights would be included in the Recognition Agreement.
It’s not far off the mark to say that prior to our current 1995 Labour Relations Act, trade unions entered into Recognition Agreements with employers, on the back of their significant membership numbers, and negotiating prowess.
Cue the introduction of the 1995 Labour Relations Act which simplified, and more importantly codified, the granting of trade union (organisational) rights, in obligating employers to extend such rights to trade unions, if they reached certain membership thresholds.
So, the notion of employers ‘recognising’ trade unions, at least for the purposes of trade union rights, fell away. The threshold of ‘sufficient representation’ was born, and any trade union which now acquires ‘sufficient representation’ in a workplace, is automatically entitled to the trade union organisational rights associated with sufficient representation, namely (1) access to the employer’s workplace (section 12 of the LRA) and (2) the obligation of employers to deduct and pay over union membership subscriptions monthly (section 13 of the LRA).
Trade unions were no longer required to be recognised by employers for these rights, as they were an automatic consequence of the union having membership which met, or exceeded, the sufficient representation threshold. However, the ‘sufficient representation threshold’ was not defined, at least not in percentage terms. What initially became apparent, for various reasons, was that sufficient representation was in the region of 30% of all eligible union members, with eligible union members being all employees, excluding senior management.
Since 1995, statutory amendments to the Labour Relations Act, pre-empted by evolving case law, has, in certain circumstances, lowered the sufficient representation to less than 30%.
The second union membership threshold dealt with in the Labour Relations Act, for purposes relating to trade union, organisational rights, is majority union representation, often described to be 50% plus one member within the ranks of eligible union members.
Once a trade union acquires majority representation, two further trade union, organisational rights, kick in, namely the right to appoint shop stewards (referred to as trade union representatives in the LRA) in terms of sections 14 and 15 of the Labour Relations Act, and the right to information disclosure, in terms of section 16 of the Labour Relations Act.
In practice, there are occasionally squabbles between employers and trade unions over the verification of actual trade union membership with the ranks of eligible union members, although disputes of this nature are typically short-lived.
So how does collective bargaining fit into this scenario. Well, it could be argued that there is still some degree of ‘recognition’ of trade unions, when it comes to collective (wage) bargaining. It has become, wisely, a norm for employers to agree to enter into collective bargaining arrangements with unions which acquire majority representation, even though there is no duty to bargaining in our law, per se.
Over time, collective recognition agreements are being phased out, as trade unions no longer require employers to recognise them for trade union, organisational rights, as these rights have been codified in the Labour Relations Act, once sufficient and/or majority representation has been achieved and verified.
The trend nowadays, is to conclude separate organisational rights and collective bargaining agreements. This makes sense on many levels. To begin with, organisational rights and collective bargaining rights, are fundamentally different, and unrelated. There is no logical reason why they should stand together in the same collective agreement.
Secondly, in the separate agreements scenario, an organisational rights agreement can persist in the event that a trade union loses majority representation. If both organisational and collective bargaining rights were both contained in a single collective agreement, a new collective agreement would need to be concluded, even though the union may none the less retain a level of sufficient representation.
Our anecdotal observations of organisational rights and collective bargaining agreements is that they are not regularly reviewed to reflect renewed best practice over time. Indeed, this is perhaps even more pertinent to disciplinary procedures and codes.
Two pieces of legislation are relevant to the new minimum wage law effective from 1 January 2019, namely the National Minimum Wage Act (2018) and the Regulations to the National Minimum Wage Act (2018). It has been estimated that approximately six and a half million employees will benefit from this legislation.
The minimum wage legislation coincides with a raft of amendments to many other labour laws including the introduction of paternity and adoptive parent leave, and strike secret ballots.
The purpose of the National Minimum Wage Act is “to advance economic development and social justice by, amongst other things “improving the wages of lowest paid workers”, “protecting workers from unreasonably low wages” and “preserving the value of the national minimum wage”.
The Act “applies to all workers and their employers, except members of the South African Defence Force, the National Intelligence Agency and the South African Secret Service”. Volunteers are excluded from the Act and need not, of course be paid any wage.
The applicable national minimum wage is R20.00 per hour, except for farm workers who have a minimum wage of R18.00 per hour, and domestic workers whose minimum wage is R15.00 per hour. “Workers employed on an expanded public works programme are entitled to a minimum wage of R11.00 per hour.
The minimum wages for farm and domestic workers will be reviewed and amended by 1 January 2021, whilst the general minimum wage is to be reviewed annually.
Importantly, an employer will commit an unfair labour practice if they “unilaterally alter wages, hours of work or other conditions of employment in connection with the implementation of the national minimum wage.
In calculating wages when applying the National Minimum Wage Act, “the calculation of a wage for the purposes of (the Act) is the amount payable in money for ordinary hours of work”. However, payment of the minimum wage excludes any payment for employee transport, equipment, tools, food and accommodation. It also excludes all gratuities including tips and bonuses.
Regulations to the National Minimum Wage Act (2018), on the other hand, primarily addresses all matters relating to employer applications to be exempted from paying the prescribed minimum wages. To begin with, the regulations stipulate that “an exemption may only be granted if the delegated authority (the Director-General of Labour) is satisfied that (a) the employer cannot afford to pay the minimum wage, and (b) every representative trade union representing one or more of the affected workers has been meaningfully consulted or, if there is no such trade union, the affected workers have been meaningfully consulted”.
If an employer is granted an exemption to pay the national minimum wage, will be for a maximum period of twelve months, and may not be less than ninety percent of the applicable minimum wage. Exemptions can be withdrawn if it is established that the employer “has provided false or incorrect information that has led to the granting” of the exemption, or “the employer is not complying with the exemption notice”.
The affordability test to be applied in assessing exemption applications the elements of profitability, liquidity and solvency. So-called ‘audit triggers’ have been identified in the regulations, include “discrepancies in depreciation”, “out of proportion net losses”, “discrepancies in reported revenue and reported total expenditure” and “discrepancies in total liabilities”.
Our firm has already received numerous enquiries from employers who are contemplating widespread retrenchments in response to the impact of the implementation of the new minimum wage.
You don’t need to look far to find highly charged sentiments on this legislation, both in favour of, and against its implementation.
Organised labour has already expressed its concern that the exemption process will enable many employers, in the manufacturing and construction industries for example, to successfully apply for exemption from payment of the minimum wage, given the parlous sate of the economy. Time will tell if this proves to be true. There is little doubt that the Director General of Labour will be inundated of exemption applications from employers.
The CCMA anticipates that disputes relating to the payment of minimum wages will increase its caseload by about fifteen percent. We think this is a conservative estimate, with a twenty percent case load increase being more likely.
The amended Employment Equity Amendment Act was introduced in recent months, as was the amended Basic Conditions of Employment Act. More recently, on 1 January 2015, the new Labour Relations Amendment Act came into effect.
This represents the most widespread revision of SA labour legislation in almost twenty years, and brings with it significant changes to numerous aspects of the labour law landscape, and now makes its introduction after a gestation period of about four years.
First and foremost, it must be said that many of the LRA amendments amount to general housekeeping which will have little, if any, effect on employers, trade unions and the State.
However, quite significant changes are made to key labour relations agenda items such as temporary employment, labour broker usage and practices, automatically unfair dismissals, matters of mutual interest, part-time employment, minority trade union organizational rights, picketing and the extension of Bargaining Council agreements, to name a few. Important changes have also been introduced to trade union picketing rights.
In the past, the most that a temporary employee could expect was the renewal of the temporary contract on the same or similar terms. However, the LRA amendments establish an expectation of permanent employment, if it is found that the position is in fact permanent.
The new LRA amendments also introduce a maximum period of employment of temporary employees, which may only be exceeded if the employer can show that there is justification for a longer temporary employment period on grounds of, for example, the nature of the work or assignment to be completed.
Turning to labour brokers, if it is established that the client of a employment service labour broker is jointly and severally liable in cases of alleged unfair dismissal, the employee may lodge proceedings against the labour broker, or its client, or both.
Temporary employees with more than twenty four months service will qualify for severance pay should they be retrenched.
Minority trade unions will now be entitled to certain organizational rights previously reserved for majority trade unions, unless the minority trade union resorted to industrial action to gain such rights. In short, in order to be granted such rights by Commissioner, minority trade unions will need to already have so-called sufficient representation and have otherwise substantial minority membership.
New picketing rights relate to picketing now being permissible at a place controlled by someone other than the employer (such as a shopping centre) as long as the other person has input in the picketing rules agreed.
The EE Amendment Act introduces the concept of ‘equal pay for equal work’; this compels employers to ensure that employees doing the same work receive the same pay, unless it can be shown that there are fair criteria justifying different wages.
Finally, a new Employment Services Act, amongst other things, focuses on the employment of foreign nationals.
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