Proposed Amendments to Labour Relations Act, 1995 (“LRA”)
Proposed Amendments to Labour Relations Act, 1995 (“LRA”)
Background:
The National Economic Development and Labour Council (“NEDLAC”) recently issued a report on proposed amendments to the LRA, the Basic Conditions of Employment Act, 1997 (“BCEA”) the National Minimum Wage Act, 2018 (“NMWA”) and the Employment Equity Act, 1998 (“EEA”). The proposed amendments have been submitted to the Minister of Department of Employment and Labour.
Important proposed amendments to LRA:
Section 186: It is proposed that Sections 186(2)(a) and (c) be deleted from the act. This would mean that unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee and failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement would no longer form part of the act. Unfair suspensions and unfair disciplinary action as well as unfair action in terms of the Protected Disclosure Act will still be covered.
Section 188: Section 188(3) is to be added and will determine that “Subject to any applicable collective agreement, a fair procedure for the purpose of subsection (2) is one in which the employee has been given an adequate and reasonable opportunity to respond to the reason for dismissal.” The proposal aligns with the recent Code of Good Practice on Dismissal and clarifies that the act does not require strict formalistic disciplinary processes. A new Section 188(4) stipulates that sub-section (3) will not apply to newly appointed employees during the first three months of employment or during a specified contractual probation period.
Section 188A: Consent to an inquiry by arbitrator may be given in terms of a contract of employment. Subsection (4) is to fall away. A new subsection (13) is proposed and will read as follows: “The council, accredited agency or the Commission must appoint an arbitrator on receipt of a request by the employee or employer, as contemplated by subsection 11 and on receipt of payment by the employer of the prescribed fee which must be made within seven days of the request in terms of subsection 11.”
Section 189A: Subsection (6) is to be amended and will basically empower the CCMA to make rules regarding facilitation (and no longer the Minister after consulting NEDLAC). It is also proposed that subsections (13) to (18) might be deleted and sub-sections (7) and (10) amended to allow procedural and substantive issues of a retrenchment dismissal to be challenged after the dismissal. It would also no longer be required to refer a dispute to conciliation as a first step, in the event that facilitation was concluded, and the party wishes to challenge the fairness of the dismissal in the Labour Court.
Section 191: It is proposed that subsection (v) be inserted as part of subsection (5). The new subsection reads as follows: “the employee has referred a dispute to the Commission in terms of section 10(6)(aA) of the Employment Equity Act and the dismissal dispute, whether in terms of section 187 or section 188, can be determined jointly with the dispute”. A new subsection (11A) will mean that an individual employee who is dismissed for a reason contemplated in section 187(d), 187(e) or 187(f) may refer the dispute to arbitration or the Labour Court.
Section 193: A new subsection (2A) determines that subsection 1(a) and 1(b) and subsection (2) will not apply in instances where an employee earns more than the statutory threshold. The amendment is aimed at removing reinstatement/re-employment for employees earning above the statutory threshold (except for automatically unfair dismissals). Compensation will be the only remedy to those employees and the amount of compensation for both unfair labour practices and unfair dismissals will be capped by the Minister per Government Gazette.
Other proposed amendments:
- There are also other proposed amendments to the LRA, and abovementioned examples are the only ones highlighted. CCMA employees are urged to pay attention to the proposed changes.
- The proposed amendment bills will be tabled at Parliament, and it is uncertain which of the proposed amendments will become law.
