Labour Laws – South Africa

In November 2017,  the National Assembly in South Africa passed several pieces of labour legislation that have important implications for employers and employees in South Africa. The National Minimum Wage Bill, the Basic Conditions of Employment Amendment Bill, and the Labour Relations Amendment Bill were passed by the National Assembly.

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27 November 2018

The Chairperson of the Portfolio Committee on Labour, Mr Lemias Mashile, has noted and welcomes the signing into law of  the Labour Laws Amendment.

https://www.gov.za/speeches/committee-welcomes-signing-labour-laws-amendment-bill-president-27-nov-2018-0000

Bill.http://www.labour.gov.za/DOL/legislation/bills/proposed-amendment-bills

http://www.labour.gov.za/DOL/downloads/legislation/bills/proposed-amendment-bills/

https://pmg.org.za/bill/742/

https://www.gov.za/documents/labour-relations-amendment-act-english-afrikaans-27-nov-2018-0000

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Labour Laws Amendment Bill

The Labour Laws Amendment Bill (the Bill) was also passed by the National Assembly in November 2017. It provides for unpaid paternity leave, adoption leave and surrogacy leave for all employees who do not qualify for maternity leave. This is the first private member bill ever to be passed by South African Parliament.

Previously, employees who did not qualify for maternity leave were only entitled to three days paid family responsibility leave for the birth of the employee’s child, or if the employee’s child was sick, or in the event of the death of the employee’s child.

Under the Bill, all fathers are entitled to at least 10 days of paternity leave. Further, one adoptive parent who has adopted a child, who is less than two years old, will now be entitled to adoption leave. If there are two adoptive parents, one will be entitled to 10 consecutive weeks of adoption leave and the other will be entitled to at least 10 days of paternity leave. The new law also allows one surrogate parent to be entitled to surrogacy leave for a period of up to 10 weeks and the other parent will be entitled to at least 10 days of paternity leave. Leave will also be applicable in the event of a miscarriage or a still born during the third trimester; and fathers will be entitled to more family responsibility leave.

The Bill also provides for an increase in maternity leave benefits and now provides for payment of parental benefits and surrogate parental benefits from the UIF. Further, no collective agreements by bargaining councils may reduce an employee’s entitlement to paternity leave, adoption leave or surrogacy leave.

This Bill is of great significance in terms of recognising the rights of the LGBTQI (Gay, Bisexual, Transgender, Queer and Intersex) community as the Bill is gender neutral.

The Bill also seeks to limit strike action in order to prevent violent strikes. It makes provisions for the resolution of strike disputes through arbitration awards at the CCMA. The Bill clarifies that strike ballots, undertaken by members of trade unions before a decision is made to strike, should be done by way of a secret ballot. A Code of Good Practice for picketing rules has been introduced. Further, the Minister of Labour will also be allowed to extend collective bargaining agreements to allow for greater representation.

The existing South African Labour Relations Act already sets out procedural and substantive limitations on the right to strike in South Africa, such as requiring the trade union to declare a dispute with the employment tribunal, conciliation of the dispute and providing prior notice of the strike. The right is further limited in that employees may not strike where they agreed, in a collective bargaining agreement, that they will not strike on the issues covered in the agreement – e.g. wages for that year. Employees are bound by an agreement where they agreed to refer the issue in dispute to arbitration; and they may refer the issue in dispute to the Labour Court or employment tribunal for adjudication.

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“Collective bargaining without the right to strike amounts to collective begging. It is thus imperative that if workers cannot collectively refuse to work, they cannot bargain collectively.”

What does the law say regarding employees’ right to strike, and what are the corresponding rights and duties of the employer?

Law relating to the right to Strike

The right to strike is derived from the International Labour Organization Conventions 87 of 1948 and 98 of 1949 which were both ratified by South Africa.

Section 23(2)(c) of the Constitution provides that every worker has the right to strike, which thereby gives effect to its duties as members under the Conventions. South Africa is one of the only countries that has entrenched the right to strike as a fundamental constitutional right. The implication of this is that the right can only be limited in terms of the law of general application to the extent that it is reasonable and justifiable in terms of Section 36 of the Constitution.

Section 213 of the Labour Relations Act (LRA) defines a strike as:

“…the partial or complete concerted refusal to work, or the retardation or obstruction of work by persons who are or who have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between the employer and the employee”.

Section 64(1) of the LRA provides that every employee has the right to strike and every employer has the right to a lock-out. A strike is deemed to be protected if the issue in dispute has been referred to a council or the Commission for Conciliation Mediation and Arbitration (CCMA) and a certificate stating that the dispute remains unresolved for a period of 30 days or any extension of that period agreed upon between the parties has lapsed since the matter was referred. Thereafter, at least 48 hours’ notice of the intention to commence a strike action must be given to the employer in writing, unless the State is the employer, in which case at least 7 days’ notice of the intention to commence a strike action must be given.

What does this mean for the employer?

Section 76 of the LRA provides that an employer is prohibited from employing replacement labour to continue or maintain production during a protected strike if the service in question has been designated as a maintenance service or to fulfill the duties of employees who have been locked out, unless the lock-out is in response to a strike.

Section 67(3) of the LRA provides that an employer does not have to remunerate an employee for services which he has not rendered. However, if such remuneration includes payment in kind for accommodation, food or other necessities of life, the employer may not withhold such payment. The employer may, however, approach the Labour Court to recover such payments by way of civil proceedings after the strike. Section 68 of the LRA provides that conduct in contemplation or furtherance of an unprotected strike or lock-out may constitute a ground for dismissal.

Section 65(1)(c) of the LRA provides that no person may take part in a strike or lock-out if the issue in dispute is one that a party may refer to arbitration or to the Labour Court.

http://www.seesa.co.za/the-right-to-strike-in-south-africa/

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The right to strike is derived from the International Labour Organization Conventions 87 of 1948 and 98 of 1949, which were both ratified by South Africa.
South Africa has given effect to its duties as members under these Conventions in section 23(2) (c) of the Constitution which provides that every worker has the right to strike.

According to Mohamed (Without Prejudice: 2012) South Africa is one of the only countries in the world that has elected to entrench the right to strike as a fundamental constitutional right. The implication hereof is that the right can only be limited in terms of the law of general application to the extent that it is reasonable and justifiable (sec 36 of the Constitution).

Section 213 of the Labour Relations Act 66 of 1995 (LRA) defines a strike as “the partial or complete concerted refusal to work, or the retardation or obstruction of work by persons who are or who have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between the employer and the employee.

Section 64(1) of the LRA provides that every employee has the right to strike and every employer has the right to lock-out. Olivier (Managing employment relations in South Africa: 2005) submits that were the right to bargain collectively not so well protected, the right to freedom of association would be fruitless.

In terms of sec 64(1) of the LRA, a strike is deemed to be protected if the issue in dispute has been referred to a council or the Commission for Conciliation mediation and Arbitration (CCMA) and a certificate stating that the dispute remains unresolved for a period of 30 days or any extension of that period agreed upon between the parties has lapsed since the matter was so referred.

Thereafter, at least 48 hours’ notice of the intention to commence strike action must be given to the employer in writing – unless the State is the employer, in which case at least 7 days’ notice of the intention to commence strike action must be given.

In BAWU and Others v Prestige Hotels CC t/a Blue Waters Hotel (1993) 14 ILJ 963 (LAC), it was held that by definition a lawful strike is functional to collective bargaining. The parties are forced to take negotiations seriously by the fear that if settlement is not reached either of the parties might exercise their right to inflict economic harm on the other.

Van Niekerk (Law@Work: 2014) submits that once these requirements have been met the strike is protected and employees engaged in the strike will enjoy immunity against delictual claims, claims for breach of contract and enjoy protection against dismissal.

This was confirmed in Coin Security Group (Pty) Ltd v SANUSO (1995) 19 ILJ 43 (C), where the court held that an employer is not entitled to obtain an order interdicting anyone from participating in a protected strike and cannot claim any damages for any conduct in contemplation or furtherance of a protected strike or any other civil action.

In terms of section 76 of the LRA, an employer is also prohibited from employing replacement labour to continue or maintain production during a protected strike if the service in question has been designated as maintenance service  or to fulfill the duties of employees who have been locked out – unless the lock out is in response to a strike.

To counter the effects of the rather generous right to strike in South Africa on the employer section 67(3) provides that an employer does not have to remunerate an employee for services which he has not rendered.

However, if such remuneration includes payment in kind for accommodation, food or other necessities of life the employer may not withhold such payment. The employer may however, approach the Labour Court to recover such payments by way of civil proceedings after the strike.

Section 68 of the LRA provides that conduct in contemplation or furtherance of an unprotected strike or lock-out may constitute a ground for dismissal.

The right to strike in South Africa

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Tswane – Pretoria – illegal strike

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