Labour Law EMPLOYMENT LAW BREAKFAST...The NMW Act is a historic piece of legislation; Prior to the enactment of the NMW Act, minimum wages in South Africa were not regulated at a national

Labour LawEMPLOYMENT LAW BREAKFAST

IRSHAAD SAVANTSenior Associate

ASLAM PATELAssociate

THANDEKA MHLONGOAssociate

Presented by:

The new CCMA ru les

EMPLOYMENT LAW BREAKFAST | DON’T BE CAUGHT OFFSIDE

P r e s e n t e d b y :I RSHAAD SAVANT

3

THE NEW CCMA RULES | IRSHAAD SAVANT

van Eck & Kuhn: Amendments to the CCMA Rules: Thoughts on the Good, Bad and the Curious (2019) 40 ILJ 711

“The latest amendments leave most of the CCMA rules intact in their present form. The amendments aim to weed out past problems, to align the CCMA rules with the latest amendments to labourlegislation, and to streamline and expedite CCMA processes…”

Rule 11 When must the Commission notify parties of a conciliation Rule 14A Extension of conciliation period in terms of Section 135(2A) Rule 17 Conduct of con-arb in terms of Section 191(5A) Rule 20 When the parties must hold a pre-arbitration conference Rule 25 Representation before the Commission Rule 29 Disclosure of documents Rule 31A Picketing Rules Rule 31B Enforcement of written undertakings and/or compliance orders


RULE 11Rule 11 When must the Commission notify parties of a conciliationOld Rule 11 At least 14 days prior to the date of the conciliation, unless parties agree to a shorter notice period or

reasonable circumstances require a shorter period.

New Rule 11 At least 7 days notice prior to matters scheduled in terms of sections 64, 65(2)(a) or 189A(8) of the LRA. At least 14 days notice in any other matter; Exception: CCMA may give shorter period if parties have agreed or reasonable circumstances require a

shorter notice period.

Van Niekerk, Speedy social justice: Streamlining the statutory dispute resolution processes (2015) 36 ILJ 837“My understanding is that the CCMA has over the years continued to maintain its impressive rate of settlement at the conciliation phase.”

THE NEW CCMA RULES | IRSHAAD SAVANTRULE 14ARule 14A Extension of conciliation period in terms of Section 135(2A) Section 135: 30 day period to resolve dispute through conciliation Conciliating commissioner or a party may request CCMA Director to extend the conciliation (for a period not

longer than 5 days) prior to end of the 30 days period CCMA Director than has 2 days to consider the request. Factors:

Necessary to consider meaningful conciliation process; Refusal to agree to extension is unreasonable; Reasonable prospects of reaching agreement

Van Eck and Khun in the ‘amendments to the CCMA Rules: Thoughts on the Good, Bad and the Curious’ notethat the CCMA now has 4 bites at the cherry (pre conciliation, conciliation, the extended conciliation periodand an option by agreement between the parties to revert to suspend an arbitration (at arbitration phase) andrevert to conciliation (in terms of section 138(3) – the commissioner may do so if all the parties consent).

6


RULE 17Rule 17 Conduct of con-arb in terms of Section 191(5A) CCMA must notify parties at least 14 days prior to date of con-arb (unless parties agree to

shorter period or reasonable circumstances require a shorter period) If the notice is sent by registered mail, an extra 7 days ought to be added If a party intends to object to a con-arb process, the party must serve & file the notice at least 7

days prior to the date of the con-arb Incompetent to object to a:

Dispute relating to a dismissal / unfair labour practice relating to probation Dispute relating to compliance order i.t.o. section 69(5) of the BCEA Claim for failure to pay an amount i.t.o. section 73A of the BCEA


RULE 20Rule 20 When the parties must hold a pre-arbitration conference In terms of the old Rule 20, parties were not necessarily excluded from filing a pre-arbitration minute, it

was mandatory to file one only if the Convening Senior Commissioner (or of the region) or thepresiding Commissioner directed the parties to file the minute

New Rule 20 Pre-arbitration conference must be held at least within 14 prior to the date of the arbitration if

• Both parties are represented by a TU, EO, legal practitioner and/or CA;• Both parties agree to hold one; or• If directed to do so by the Convening Senior Commissioner (or of the region) or presiding

Commissioner

Referring party must file the minute 7 days prior to the date of the arbitration


RULE 25Rule 25 Representation before the Commission In terms of the old Rule 25

• At conciliation: a director or employee of the party or a member of a CC; any member, office bearer orofficial of that party’s TU or EO

• At arbitration: legal practitioner, director or employee of that party or a member of a CC; any member,office bearer or official of that party’s TU or EO

• However, if dismissal dispute and party alleged that reason relates to employee’s conduct or incapacity, notentitled to be represented by a legal practitioner unless: Commissioner and all other parties consent; Commissioner concludes that unreasonable to proceed, after considering:

• Nature of questions of law raised by the dispute• Complexity of the dispute• Public interest; and comparative ability of the opposing parties or their reps to deal with the dispute

9


RULE 25Rule 25 Representation before the Commission In terms of the new Rule 25

• At conciliation: member or employee of the CC, if party is the Dep of Labour, an EE or official of thedepartment

• At arbitration: legal practitioner, CA, or by an individual entitled to represent the party at conciliation• However, if dismissal dispute and party alleged that reason relates to employee’s conduct or

incapacity, the dispute arbitrated is referred i.t.o. section 69(5), 73, 73A of the BCEA, not entitled tobe represented by a legal practitioner or CA unless (same proviso’s as old Rule applies)

• A facilitation of a large-scale retrenchment (s 189A(3)) CA’s / legal rep not allowed.• Only a party may appear in person or

be represented, if an ER, by a director or EE of the ER, or member or EE of the CC any member of the registered TU, EO or office bearer or official


RULE 25Rule 25 Representation before the Commission

Coetzee v Autohaus Centurion (recent MEIBC ruling)• In terms of section 25 of the LPA, attorneys, CA’s entitled to represent parties at arbitration• Section 25: states that a legal practitioner has the right to appear “in any court in the Republic or

before any board tribunal or similar institution” but “subject to any other law”• The arbitrator held that section 25 of the Legal Practice Act, 2014 supersedes the rule and the

equivalent rule in the Commission for Conciliation, Mediation and Arbitration Rules

CCMA’s first directive for 2019, effective as at 23 March 2019• States that the commissioner’s decision in Coetzee was incorrect• CCMA has the power i.t.o. of the LRA to regulate representation and in terms of the LRA, it prevails

over any other Act or provision of law inconsistent with it

11


RULE 29Rule 29 Disclosure of documents In terms of the old Rule 29:

• Anytime after request for arbitration, party may request commissioner to make an order as tothe disclosure of relevant documents or other evidence

In terms of the new Rule 29:• Anytime after request for arbitration, but not less than 14 days prior to the hearing, may

request disclosure of any documents or material relevant to the dispute• Party to whom the request is made must respond within 5 days upon receipt of the request


RULE 31ARule 31A How to apply for Picketing Rules or the determination of disputes relating thereto The rule applies to:

• Applications for picketing rules i.t.o. section 69(6B)• Disputes relating to the application or interpretation of a picketing agreement or rules determined by

the commissioner• Disputes relating to an issue concerning picketing contemplated by section 69(8).

Unless the parties agree otherwise, the CCMA must set down the application within 2 days upon receipt ofthe application

Rule 31B How to apply for the enforcement of Written Undertakings and/or compliance orders The rule applies to any application

• To make an undertaking an arbitration award i.t.o. section 68(3) of the BCEA; and• For a compliance order to be made an arbitration award i.t.o. section 73(1) of the BCEA





Presented by:

WIFI KEY: Gue2t#222

NATIONAL MINIMUM WAGE ACT 9 OF 2018, REGULATIONS, AND THE BASIC CONDIT IONS OF EMPLOYMENT AMENDMENT ACT. 7 OF 2018


P r e s e n t e d b y :

ASLAM PATEL

INTRODUCTION

The NMW Act is a historic piece of legislation; Prior to the enactment of the NMW Act, minimum wages in South Africa were not regulated at a national

level and were:• Sector and area specific (sectorial determinations under the Basic Conditions of Employment Act) • Plant, industry and sector level (these were collective bargaining under the Labour Relations Act);

The NMW Act Establishes a mandatory national floor wage; Provides protection to the most vulnerable workers and the lowest paid workers Attempt by government to address poverty and wage disparities in income in South Africa The Act was signed into law by the president in November 2018 and came into effect on 1 January 2019.

15

THE NMW ACT FRAMEWORK

APPLICATION, APPLICABILITY,

REVIEW & AMENDMENT

NMW ACT

EXEMPTIONS PROCESS

REGULATIONS TO THE NMWA

ENFORCEMENT & FINES

BCEA AMENDMENTS

NMW ACT

Applies to all “workers”, “Worker” means any person who works for another and who receives, or is entitled to receive,

any payment for that work whether in money or in kind.• includes independent contractors or own workers or the self-employed. • widening scope of coverage of NMWA to well beyond “employees” as defined in LRA &

BCEA.

ExclusionsThe NMWA does not apply to: Members of the SANDF, NIA, SASS & Volunteers;

SECTION 4 & SCHEDULE 1 OF THE NMWANMW: R20 per hour, to be adjusted annually. R 3 600 a month (40hr Week) R 3 900 a month (45hr Week)

Exceptions Farm workers R18 Domestic workers R15NB: farm workers and domestic workers’ wages must be brought up to or as close possible to the NMW act within 2 years of the enactment of the act

Workers in Expanded Public Works Programmes R11NB: this mw will be adjusted annually by the same proportion that the NMW is adjusted

Learners who’ve concluded learnership agreements entitled to specified allowances, depending on the learners NQF’S level and credits earned

SECTION 5 | CALCULATION OF THE NMW

The National minimum wage is the amount payable in money for ordinary hours worked. Ordinary hours of work means the hours permitted in terms of section 9 of the BCEA and the newly included

section 9A of the BCEA. Wages means the amount of money paid or payable to a worker in respect of ordinary hours of work or if

there are shorter, the hours the worker ordinarily work in a day or in a week

The following is not included in the calculation of the NMW: any payment made to enable a worker to work including any transport, food or accommodation allowances

and equipment and tools, unless specified otherwise in the sectoral determination any payment in kind; bonuses, tips, gifts any other prescribed category of payment

NMW, CONTRACTS OF EMPLOYMENT AND UNILATERAL CHANGES Section 4(4)&(5) Every worker will be entitled to payment of a wage not less than the National Minimum Wage Employers will be obliged to pay workers’ wages that are not less than the NMW.

Section 4(6) Prohibits the payment of the NMW from being waived and further provides that the MW takes

precedence over any contrary provision in any contract, collective agreement, sectorial determination or law, except a law amending the NMW Act.

NMW, CONTRACTS OF EMPLOYMENT AND UNILATERAL CHANGES - con t inued

Section 4(7) The NMW must constitute a term of the workers contract unless the contract, collective agreement or

law provides for a more favourable wage. NB: employers should thus amend contracts of employment to make reference to national minimum

wage, where applicable

Section 4(8) It is an unfair labour practice for an employer to unilaterally alter wages, hours of work or other

conditions of employment in connection with the implementation of the NMWA (i.e. reduce hours of work, or lower employee’s wages to the national minimum wage)

SECTION 6 | ANNUAL REVIEW

a review of the NMW must be conducted annually by the NMW commission the commission must submit a report with its recommendation to the minister of Labour the minister if happy with the recommendations must adjust the national minimum wage

EXEMPTION FROM THE NATIONAL MINIMUM WAGE

WHO MAY APPLY?

Section 15: An employer or employer’s organization

NB the exemption application process and requirements are dealt with in the regulations of the NMW Act and are discussed below

How Must You Apply?The application must be lodged on the national minimums wage exemption system in the form required by that system. The system is publicly accessible: Online at http//nmw.labour.gov.za At any department of labour centre, the address of which are to be found online at www.labour.gov.za

WHEN WILL AN EXEMPTION BE GRANTED?

An exemption can only be granted if the director general or delegated authority is satisfied that: the employer cannot afford to pay the minimum wage: In this regard the test for affordability is

the profitability, liquidity and solvency of the employer; every representative trade union has been meaningfully consulted, if no trade union, affected

workers have been meaningfully consulted; the bargaining council, representative trade union / the affected workers have been provided

with the application for exemption; and the employer has complied with applicable statutory payments e.g. UIF, COIDA and any

applicable Bargaining Council Agreements.

ON WHAT TERMS CAN AN EXEMPTION BE GRANTED

For a period of not more than 12 months; For a wage that is not less than the following wage thresholds:

• 90% of the national minimum wage in respect of workers other than farm workers and domestic workers

• 90% of the national minimum wage in respect of farm workers• 90% of the national minimum wage in respect of domestic workers

NB: The Maximum Decrease That Can Be Granted Is Accordingly 10% Of The National Minimum Wage Amount.NB: While Awaiting An Outcome The Employer Must Comply With The NMW.

WHAT MUST AN EMPLOYER DO IF AN EXEMPTION HAS BEEN GRANTED display a copy of the exemption notice where it can be read by employees; give a copy of the exemption notice to a representative trade union representing one or more of

the workers; and give a copy of the exemption notice to every worker who request a copy and to the applicable

bargaining council.

CAN AN EXEMPTION NOTICE BE WITHDRAWN?

Yes: If: An Employer provided false / incorrect information that led to the granting of its application for

exemption An Employer is not complying with the exemption notice An Employer’s financial situation has improved Any other justifiable grounds.An application for withdrawal may be brought by any affected person and Employer must be consulted prior to an exemption being withdrawn


P r e s e n t e d b y :

ASLAM PATEL

BASIC CONDITIONS OF EMPLOYMENT AMENDMENT ACT. 7 OF 2018

INTRODUCTION

Came into effect on 1 January 2019. Most of the amendments are cosmetic and are to accommodate the introduction of the NMW

as a basic condition of employment. Cater and provide a mechanism for the enforcement of the NMW Act. Provide for a daily wage payment for employees who work for less than 4 hours a day.

SECTION 1

Amends the definition of “Basic Conditions of Employment” to include the NMW.

INCLUSION OF SECTION 9A: DAILY WAGE PAYMENT Section 9A of the BCEA states that “an employee or a worker as defined in section 1 of

the National Minimum Wage Act, 2018, who work for less than four hours on any day must be paid for four hours on that day

Section 9A is only applicable to employees earning below the BCEA threshold currently, R 205 433.30

SECTION 51 | SECTORAL DETERMINATION

Wages prescribed in terms of any sectoral determinations that are higher than NMW– to be proportionally increased if NMW is increased. See section 4(6) of the NMW Act above re: the NMW Act taking precedent over any law, sectoral determination that is contrary to the NMW.

ENFORCEMENT OF THE BASIC CONDITIONS OF EMPLOYMENT (CHAPTER 10 OF THE BCEA) For purposes of chapter 10 (enforcement provisions), “employee” includes a “worker” as defined

in section 1 of the NMWA.

INCREASE IN POWERS OF LABOUR INSPECTORS: SECTION 64New additional functions of labour Inspectors: referring disputes to the CCMA concerning failure to comply with this BCE Act, the NMW Act, the

UI Act and the UIC Act; appearing on behalf of the Director-General in any proceedings in the CCMA or Labour Court

concerning a failure to comply with legislation referred to above

WRITTEN UNDERTAKINGS & COMPLIANCE ORDERS SECTIONS 68 and 69WRITTEN UNDERTAKINGS - SECTION 68 Labour Inspector may endeavour to secure a written undertaking from the employer for non-

compliance with any provision of the NMW Act, BCE Act, UI Act and UIC Act. If the employer fails to comply, the Director General may request the CCMA to make the

undertaking an arbitration award. The arbitration award can be rescinded or reviewed in the LC.

COMPLIANCE ORDERS - SECTION 69 Compliance orders to be issued for non-compliance with the NMWA, BCEA, UIA and UICA; Employer can refer a dispute concerning the compliance order to the CCMA within the period

stated for compliance in the compliance order.

SECTION 73 | COMPLIANCE ORDER MAY BE MADE AN ARBITRATION AWARDCompliance order may be made an arbitration award if the employer has not complied. The CCMA may issue an arbitration award requiring the employer to comply with the compliance order if it is satisfied that the: compliance order was served on the employer; employer has not referred a dispute to the CCMA in terms of Section 69.

LIMITATIONS | SECTION 70

Labour inspector may not issue a compliance order where: the employee earns above the BCEA threshold proceedings have been instituted for the recovery of that amount in the CCMA or a court the amount claimed has been owed for longer than 36 months from the date on which the

complaint was made to the labour inspector or from the date the labour inspector tried to secure an undertaking from the employer, or a compliance order was issued.

SECTION 73A | CLAIMS FOR FAILURE TO PAY ANY AMOUNT Employee or worker as defined in NMWA may refer a dispute to CCMA concerning failure to pay

amount owing i.t.o. BCE Act, NMW Act, a contract of employment, sectoral determination, collective agreement.

Compulsory to immediately arbitrate after certificate at conciliation. Only applicable to employees earning below the earnings threshold Employees above threshold may institute claim in the LC, HC, MC or small claims Court.

SECTION 76A | FINE FOR NON-COMPLIANCE WITH NMWA Fine for paying an employee less than national minimum wage: Twice the value of underpayment, or; Twice employee’s monthly wage – whichever is the greater. Second or further non-compliance’s – 3 x the value of underpayment or 3 x the employee’s

monthly wage – whichever is the greater.

Department of Labour must maintain and publish on its official website, on a quarterly basis, a list of all employees who were issued with compliance orders.

NB: for any other underpayments in terms of the BCE Act the fines in schedule 2 of the BCE Act will still apply

SECTION 76 | PROOF OF COMPLIANCE

In any proceedings or disputes the onus is on the employer to prove the following: That the record maintained by and for the employer is valid and accurate.; or If he has failed to keep any record to prove compliance with the BCE Act and NMW Act.

SECTION 75 | PAYMENT OF INTEREST

Provides for the payment of interest on any amount due and payable in terms of the BCE Act or NMW Act

Rate of interest prescribed in terms of Section 1 of the Prescribed Rate of Interest Act, 1975 That rate currently is 10.25% per annum





Presented by:

WIFI KEY: Gue2t#222

Labour Law Amendment Act , 10 of 2018


P r e s e n t e d b y :THANDEKA MHLONGO

MIA V STATE INFORMATION TECHNOLOGY AGENCY (PTY) LTD (D312/2012) (2015) ZALCD 20

“the right to maternity leave as created in the basic conditions of employment act is an entitlement not linked solely to thewelfare and health of the child’s mother but also connected to the child’s best interest. In order to properly address the issueof paternity leave, the legislation and the BCEA would need to be amended in order to safeguard protection afforded in the Civil Union Act and the Children’s Act. “

The Labour Law Amendment Act (the Act) is a welcomed amendment which seeks to amend the Basic Conditions of Employment Act.

The Act was a private member bill which was drawn up by the Christian democratic party and was presented to parliament in 2015.

It was signed into law by the president in 2018.

The Act : amends the basic conditions of employment act and the Unemployment Insurance Act. rights to parental leave, adoption leave, and commissioning parental leave. The Act will come into force on a date still to be determined by the president.

42

PURPOSE OF THE ACT

Modern family structure i.e. shared parental and earnings responsibility; Accommodate employee dual role as employee and caregiver; and Eradicates gender assumption that woman are caregivers and males are the parental

breadwinners.

SECTION 25A | PARENTAL LEAVE

Employee that is the parent of a child is entitled to at least ten consecutive days parental leave, from the day that the child is born, adoption order or when child is placed in the care of the prospective adoptive parents

Generally, it works out to 8 Working Days

Employees must provide employer with one month’s notice before the child is expected to be born or the date the adoption order is granted, or child is placed in care of prospective adoptive parent.

Gender Neutral leave; The act does not specify that an employee who has taken maternity leave will be excluded from the right to

parental. Memorandum on the objectives of the LLA bill indicates that a parent who is not entitled to maternity leave is

entitled 10 consecutive days’ parental leave.

Sect ion 25B | Adoption Leave

Adoptive parent of child below the age of two is entitled to adoption leave of:• at least ten weeks consecutively, or• parental leave as previously discussed

An employee must provide one months’ notice before the child is placed for adoption in terms of the adoption order or as soon as reasonably practicable.

If adoption order is made in respect of two adoptive parents.

NB: only one parent may apply for adoption leave and the other may apply for parental leave;Proviso: the selection of choice must be exercised at the option of the prospective adoptive parents.

Sect ion 25C | Commiss ioning Parental Leave

An employee that is a commissioning parent in a surrogate motherhood arrangement is entitled to: Commissioning parental leave of at least ten weeks consecutively; or Parental leave as previously discussed . If a surrogate motherhood agreement has two commissioning parents one of the commissioning parents is

entitled to commissioning parental leave and the other to parental leave

Proviso: the selection of choice must be exercised at the option of the two commissioning parents

PAYMENT LEAVE[SECTION 25(A)(6) , 25(B)(6) , 25(C)(6)] Parental leave, adoption leave and commissioning leave is unpaid leave. Payment of leave benefits will be in terms of the Unemployment Insurance Act.

If an employer has a policy in terms of which it pays an employee maternity leave or part thereof, the same / similar policy should be adopted for employees taking up this leave.

UNEMPLOYMENT INSURANCE ACT

Must be a contributor to UIF and be in employment for at least thirteen weeks before application for parental benefits

UIF benefit is capped at 66% of earnings subject to maximum income threshold.

Sect ion 27(2)(a) REPEALEDS 27(2) An employer may grant an employee, during annual leave cycle, at the request of the employee, three days paid leave, which the employee is entitled to -

The act deletes sub section 27(2)(a) of family responsibility leave for the purpose of the birth of a child.

SECTION 49 | VARIATION BY AGREEMENT

A collective agreement may not reduce an employee’s entitlement to leave as per sections 25A, 25B and 25C





Presented by:

WIFI KEY: Gue2t#222

LABOUR RELATIONS AMENDMENT 2018 | IRSHAAD SAVANT

54A D A M S & A D A M S \ A N I N T R O D U C T I O N

Old section 32 Bargaining council may request Minister to extend CA to non-parties:

TU/TU’s representing majority of members that are party to council vote in favour of the extension; and EO/EO’s representing majority of employers employing majority of ees that are

party to the council vote in favour of the extension Minister must extend within 60 days of the request if:

The above requirements are met Majority of ees upon extension will fall within scope of agreement are members

of TU’s to the council Majority of the members of the ER’s (to the council) employ majority of ees

falling under the scope of the agreement upon its extension Non-parties upon extension of agreement fall within registered scope of the

council

Bargaining may request



Section 32 Extension of Collective Agreement concluded in Bargaining CouncilOld section 32 Minister must extend within 60 days of the request if:

BC has in place effective procedure to deal with non-party exemption applications and is able to decide it within 30 days Provision is made in the CA for an independent body to hear and decide an

appeal against the BC’s decision refusing (or withdrawal) of an exemption application. The CA must contain criteria for independent body to considering an appeal –

which are fair and promote primary objects of the Act



Old section 32 In the absence of the TU’s not having majority of the members and the members of

the ER’s not employing majority of ees, the Minister may still extend the agreement if: Parties to the council are sufficiently representative within the registered scope

of the council Failure to extend may undermine collective bargaining at sectoral level or in

the public service as a whole Minister has: published a notice in the Gov Gazette, referring to the extension

application; stated where it can be found; and considered comments in relation the application.

When determining whether a party is sufficiently representative: Composition of workforce in the sector Including, extent to which employees are assigned to work for TES; employees

on fixed term contracts



New section 32 Minister still extends the agreement, but it is subject to the Registrar satisfying

him/herself that the prerequisites which otherwise would have been determined by the Minister are met No longer a requirement for the majority of employees to whom the agreement will

apply to be members of the trade unions that are party to the council and be employed by employers that are party to the council. Either requirement is sufficient. The Minister may make regulations on procedures and criteria that a BC must take

for purposes of BC exemption applications and exemption appeals.



Section 69 PicketingOld section 69 Registered TU may authorize a picket by its members and supporters for the

purposes of peacefully demonstrating in support of any protected strike or any lockout Picket may be held at any place which public has access to but outside the er’s

premises or if inside the er’s premises, with the permission of the er (which may notbe unreasonably withheld CCMA, if requested to do so, must attempt to secure an agreement in relation to

picketing rules If no agreement, CCMA must establish the picketing rules Rules may provide for a place which public has access to which is owned or

controlled by another person if that person had an opportunity to makerepresentations Rules - picketing on er’s premises if er’s permission is unreasonably withheld



Section 69 PicketingNew section 69 If dispute referred to the CCMA and unless there is a CA regulating the picketing

rules, the conciliating commissioner must attempt to secure agreement If no CA or agreement reached, commissioner must determine the picketing rules CCMA must determine picketing rules same time as issuing certificate of outcome

(as contemplated in section 64(1)(a) CCMA may determine picketing rules on an urgent basis:

If a TU has referred dispute ito section 64(4), and er has not complied withsection 64(5); or Er has given notice of intention to commence or has commenced

unprotected lock out Picket may only take place if there are picketing rules Labour Court may suspend a picket



Sections 150A, 150B, 150C & 150DSection 150A Advisory arbitration panel Panel may be appointed in certain instances to facilitate resolution of a dispute

On director’s own accord or on application by one of the parties After consultation with parties in the prescribed manner; Setting out panel’s terms of reference

Panel must be appointed earlier date the certificate of outcome is issued or noticeof strike / lock out issued If directed by Minister or on application by a party to the dispute If ordered to do so by the Labour Court; or By agreement between the parties

Panel may be appointed as above strike or lock out no longer functional tocollective bargaining, violence, etc.



Section 150B Composition of advisory arbitration panel Panel:

Senior commissioner as chairperson Assessor appointed by er party and one by TU

Arbitration ought to be conducted in a manner chairperson considers appropriatein order to make advisory arbitration award fairly and quickly Must deal with substantial merits of the dispute with minimal legal formaltiies Panel must conduct its proceedings and issue an award within 7 days of the

arbitration hearing or any reasonable period extended by the director Appointment of panel does not interrupt or suspend the right to strike



Section 150C Advisory arbitration award Award:

Report on factual findings Recommendations for the resolution of the dispute Motivation why the recommendations ought to be accepted

Party is given 7 days to accept or reject the award A party may apply for a 5-day extension period to accept or reject the award If a party fails to indicate its acceptance or rejection of the award within 7 days, it is

deemed to have accepted the award If party rejects the award, it must motivate its rejection EO or TU must in accordance with its constitution, consult its members before

rejecting the award



Section 150D Effect of advisory arbitration award Award is only binding on a party and its members if the TU or ER accepted or

deemed to accept the award The award is to be treated as if it were a CA and may be extended to non-parties

Godfrey, du Toit & Jacobs: The New Labour Bills: An Overview and Analysis (2018) 39ILJ 2161 “…Bill has inserted four new sections creating a process whereby a protected strike

which has proved to be ‘intractable’ or ‘violent’ or capable of causing ‘a local ornational crisis’ could be interdicted. But it does this with extreme circumspection,obviously seeking to remain within the limits of legitimate regulation of the right tostrike as understood in international law and avoiding any unconstitutionalinfringement of that right…” [added emphasis]



19 Transitional provisions 19(1)

Registrar must within 180 days, in respect of TU’s & EO’s that do not provide fora recorded and secret ballot in their constitutions Consult with those TU’s / EO’s on most appropriate means to amend

constitution to comply with section 95; and Issue a directive to those TU’s / EO’s as to the period within which the

amendment to their constitution is to be effected 19(2)

Until a TU or EO complies with the directive and the requirements of section95(p) & (q), the TU or EO, before engaging in a strike or lockout, must conducta secret ballot of members



Mahle BEHR SA (Pty) Ltd v NUMSA and Others ; FOSKOR (Pty) Ltd v NUMSA and Others (D448/19;D439/19) [2019] ZALCD 2 (20 March 2019)

Facts Common cause that union had not conducted secret ballot prior to engaging in

strike action and that it did not comply with the requirements in section 95(5)(p) &(q) Union argued that:

transitional provision (section 19) amounted to violation of constitutional rightto strike; and It could not apply as the obligation to conduct a secret ballot arose only after

registrar issues a directive.



Mahle BEHR SA (Pty) Ltd v NUMSA and Others ; FOSKOR (Pty) Ltd v NUMSA and Others (D448/19;D439/19) [2019] ZALCD 2 (20 March 2019)

Court held The transitional provisions do not limit the right to strike. All that is required is for a

union’s constitution to comply with the requirements of section 95(p) Section 19 is peremptory and applies only to a union that does not include in its

constitution the requirement of a ballot.“It is so that section 67 (7) provides that the failure of a trade union to complywith a provision in its Constitution regarding a ballot may not give rise to orconstitute a ground for any litigation affecting the legality of section conferredon the strikers. It is apposite to emphasize that section applies only to those tradeunions who have complied with the requirements of section 95 with regard tothe inclusion in their constitution of the requirement to ballot before engaging ina strike” [added emphasis]



South African Transport and Allied Workers Union (SATAWU) and Others v Moloto NO and Another (2012) 33 ILJ 2549 (CC)

“The right to strike is protected as a fundamental right in the Constitution withoutany express limitation. Constitutional rights conferred without express limitationshould not be cut down by reading implicit limitations into them and whenlegislative provisions limit or intrude upon those rights they should be interpretedin a manner least restrictive of the right if the text is reasonably capable ofbearing that meaning. The procedural pre-conditions and substantive limitationsof the right to strike in the Act contain no express requirement that everyemployee who intends to participate in a protected strike must personally orthrough a representative give notice of the commencement of the intendedstrike, nor that the notice must indicate who will take part in the strike”.



South African Transport and Allied Workers Union (SATAWU) and Others v Moloto NO and Another (2012) 33 ILJ 2549 (CC)

“In our view the factual context of this case, the fundamental importance of theright to strike, the general purpose of the Act, the specific purpose of section64(1)(b) and the lack of any express provision requiring more than mere notice ofthe time when a strike will commence, all weigh against reading impliedrequirements into section 64(1)(b). We are thus unable to agree with thereasoning and conclusion that the second to sixty-fourth applicants (dismissedstrikers) were required to give strike notices in addition to that given by the firstapplicant (union) before joining in the strike, or that the strike notice had toindicate the number of employees who were going to participate in the strike.”

Documents

Labour Law EMPLOYMENT LAW BREAKFAST...The NMW Act is a historic piece of legislation; Prior to the enactment of the NMW Act, minimum wages in South Africa were not regulated at a national