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Most employers across South Africa are aware that changes to the existing labour laws have been proposed for some time now. Some may not yet have responded to the challenges of the proposed changes because this debate about labour law reform has been on-going since the African National Congress (ANC) election manifesto of 2009.
Writing for Mondaq.com, South African lawyer Alexander Rocher, of law firm Edward Nathan Sonnenbergs, attempts to place the imminancy of the new labour laws into context.
In the first place, one has to broadly understand that new legislation or amendments to existing legislation, such as the proposed changes to existing labour laws, follow the Parliamentary law-making process enshrined in [the South African] Constitution. It is first put before the National Assembly (NA) and, following various committee deliberations, public hearings and debate, is then voted on by MPs in the NA.
If the law (or Bill) is passed, it moves to the National Council of Provinces (NCOP) where it is again subject to a public participatory process, debated and then voted on by the NCOP. If the NCOP passes the law, the law is submitted to the President for assent. If the NCOP rejects or passes the law with amendments, the NA must then reconsider the law and pass it again, either with or without the NCOP's suggested amendments. After reconsideration, if the NA passes the law, it is submitted to the President for assent. A law assented to by the President comes into effect when published or, usually, on a date fixed by the President.
In the case of the Basic Conditions of Employment Act, the proposed amending laws (or 'Amendment Bill') were passed by the NA on 20 June 2013 and passed on 5 November 2013 by the NCOP without any changes. The Basic Conditions of Employment Amendment Bill has been submitted to the President for assent and will become law on a date fixed by the President.
In the case of the Labour Relations Act, the Amendment Bill was passed by the NA on 20 August 2013 and was passed on 5 November 2013 by the NCOP with a handful of proposed amendments. The NCOP's proposed changes were very recently referred back to the NA for reconsideration. The most significant of the NCOP's proposed changes have implications for 'organisational rights', 'picketing rules' and to clarify aspects of the new laws designed to regulate 'non-standard' employment. The NA is yet to formally reconsider the NCOP's version of the Labour Relations Amendment Bill, however, it is expected that the only contentious aspect is likely to be the implications for 'picketing rules'. Once reconsidered and passed by the NA, with or without the NCOP's proposed changes, the Labour Relations Amendment Bill will be submitted to the President for assent and will become law on a date fixed by the President.
In the case of the Employment Equity Act, the Amendment Bill was passed by the NA on 24 October 2013 and by the NCOP on 21 November 2013. As a result, it will now join the Basic Conditions of Employment Amendment Bill in submission for Presidential assent before it will become law.
The Employment Services Bill is an entirely new piece of legislation designed, among other things, to regulate so-called 'employment services' and 'private employment agencies', which include the business of labour brokers. The Employment Services Bill was passed by the NA on 12 November 2013 and considered by the NCOP on 18 November 2013. The NCOP has referred it back to the NA's Labour Committee on the basis of two minor technical changes. This means that it will not receive Presidential assent until next year.
It is important to note that after their journey through the NCOP (and possibly reconsideration by the NA), the Employment Equity Amendment Bill and the Employment Services Bill will also come into effect on a date fixed by the President. Since all the new labour laws interact with one another, it is widely expected that the President will fix the same date on which the new labour laws will come into effect at once.
Mr Rocher concluded, although time is against the new labour laws being finalised this year, it can be expected that the Parliamentary work will be completed in 2014 and the new labour laws will come into effect prior to the May 2014 national elections, perhaps with effect from 1 April 2014.
Staffing Industry Analysts is hosting a free webinar for buyers of staffing services on 11 December 2013. The webinar is an introduction to the contingent workforce in South Africa and will cover cultural attitudes towards flexible working, key market trends, and recent legislative developments.
To register for this webinar, or find out further information, please click here.