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There are currently two very important bills before the parliamentary labour portfolio committee.
They are the amended and redrafted Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA).
The government is also redrafting the Employment Equity Act and has added a new piece of proposed legislation entitled the Public Employment Services Bill. Formal negotiations in Nedlac are still under way regarding these two acts.
“What is clear is that the new amendments to the LRA have been watered down from the original radical framework and will still allow labour brokers to operate, something that the unions were trying to prevent,” says Nritika Singh, managing director of Isilumko Staffing.
“Much stricter compliance and enforcement will be implemented if the amendment is passed, which is anticipated.”
Singh believes clarification is needed in the interpretation of the LRA amendments and how they will affect the employment relationship between labour brokers, employers and employees. How, for example, will the amendment affect labour brokers in an atypical employment relationship?
During the first six months of assignment with a labour broker/ temporary employment service (TES), the status quo remains and the client and TES are jointly and severally liable for breaches of the BCEA, sectoral determinations and bargaining council agreements, Singh explains.
Thereafter, for purposes of the LRA, the client is jointly and severally liable for unfair dismissals and the provision relating to equal pay treatment has application.
After a six-month contract period for temporary staff, the client and the employer (TES) are deemed to be responsible for contraventions of the LRA, but the client does not have to sign new employment contracts or transfer temporary staff to its payroll, as the TES remains the employer.
In instances of unfair dismissal, temporary employees will now have recourse against the TES and the client. “In terms of the LRA amendment, the temporary employee is expected to be given equal pay for work of equal value after a contract period of six months,” Singh continues.
“This applies to remuneration for employees earning up to R172 000 per annum. Overtime is to be paid for all those employees in this category. Anyone above this threshold does not qualify for overtime. Equal pay can only be departed from if there is justifiable reason for different treatment.”
The different treatment must be as a result of the application of a system that takes into account:
l The employees seniority, experience or length of service.
l Merit criteria.
l The quality or quantity of work performed.
l Any other relevant criteria of a similar nature that is not prohibited in terms of BCEA Act.
“What is interesting is that learnerships are excluded from the act and may provide legitimate flexibility. Employers can also manage their risk by putting performance criteria structures in place,” says Singh.
“The two acts could be promulgated before the end of the year. It is encouraging that there will be no ban on labour broking and that protection of employee rights will be dealt with through legislative amendments.
“We hope these amendments will not be too restrictive. After all there are 500 000 temporary employees at work every day. This is a significant percentage and we look forward to continuing to operate and assist thousands of people to find employment each day.”
l Contact Isilumko Staffing at 011 267 2920 or visit their website at www.isilumko.com