Amending labour legislation Presenter Murray Alexander RICA

Amending labour legislation Presenter: Murray Alexander • RICA – Accessing employees’ mailboxes • Employment Equity Act – Failure to submit Employment Equity Plans • Section 198 A of the LRA – Temporary Employment Services • Strikes that are no longer functional to collective bargaining • Challenges for legal practitioners • Applications for legal representation – Rule 25 • Concluding pre-arbitration minutes • Delays in the Labour Court

Amending labour legislation Regulation of Interception of Communications and Provisions of Communicated – related Information Act (RICA) • Section 5 – Employee required to provide written consent after being informed of the scope of the interception • Section 6 – Employer not required to obtain prior written consent after having made all reasonable efforts to make the employee aware that their communications may be intercepted

Amending labour legislation Employment Equity Act – Failure to submit Employment Equity Plans • Previously S 36(1)(c) made provision for compliance orders to employers without EE Plans • S 37 makes provision for compliance orders excluding EE Plans • S 36 makes provision for written undertakings excluding EE Plans • S 20 allows the DOL to bring an application to the LC to fine employers from 2% (R 1. 5 m) to 10% (R 2. 7 m) of employer’s annual turnover

Amending labour legislation S 198 A of the LRA – Temporary Employment Services • NUMSA v Assign Services and Others (JA 96/15) [2017] ZALAC 44 (10 July 2017) • TES not banned – restrict the TES to genuine temporary employment arrangement (as defined) • The TES is an unwarranted “middle-man” adding no value to the employment relationship • The employment relationship between the TES and the employee is terminated • A new contract of employment with the client is created

Amending labour legislation Strikes that are not functional to collective bargaining • Tsogo Sun Casinos t/a Montecasino - 2012 “This court will always intervene to protect both the right to strike, and the right to peaceful picketing. This is an integral part of the court’s mandate, conferred by the Constitution and the LRA. But the exercise of the right to strike is sullied and ultimately eclipsed when those who purport to exercise it engage in acts of gratuitous violence in order to achieve their ends. When the tyranny of the mob displaces the peaceful exercise of economic pressure as the means to the end of the resolution of a labour dispute, one must question whether a strike continues to serve its purpose and thus whether it continues to enjoy protected status. ”

Amending labour legislation Strikes that are not functional to collective bargaining • “Can a Protected Strike Lose its Status? ” by Alan Rycroft • Tsogo Sun opens the door to argue that a strike marred by misconduct loses its protected status • Collective bargaining is the purpose of the strike – if behaviour during a strike is destructive of collective bargaining then the protected status of the strike has been jeopardised

Amending labour legislation Strikes that are not functional to collective bargaining Section 23 of SA Constitution • Guarantees the right to strike Sections 64 and 65 of the LRA • Limitations on the right to strike

Amending labour legislation Strikes that are not functional to collective bargaining • Secret ballot required in terms of 1956 LRA • Ballot required in union constitutions – S 95(5)(p) • Secret ballot required in terms of LR Amendment Bill 2012 – Section 64 required a secret ballot before a strike (and Certificate of Compliance from CCMA) • Zwelinzina Vavi – “a secret ballot is the greatest threat to the right to strike since the fall of apartheid” • Deputy President Cyril Ramaphosa: “SA should adjust labour laws so union members have to vote before striking … to curb damaging industrial action. ” (July 2014)

Amending labour legislation Strikes that are not functional to collective bargaining • Section 67(2) – Conduct in support of a protected strike enjoys protection against civil proceedings • LR Amendment Bill 2014 – conduct in breach of picketing rules / agreement does not enjoy protection against civil legal proceedings

Amending labour legislation Strikes that are not functional to collective bargaining • LR Amendment Bill 2012: Section 69(12) – Labour Court may: • Order compliance with or vary picketing rules / agreements • Suspend a strike or picket or lock-out or use of replacement labour in appropriate circumstances

Amending labour legislation Strikes that are not functional to collective bargaining • NUFBWSAW v Universal Product Network (2016) ILJ 476 (LC) • Employer sought an order that the strike was unprotected because it was no longer functional to collective bargaining as a result of the violence and political nature of the strike • Court held that in appropriate circumstances a protected strike could be declared unprotected “on account of levels and degrees of violence which seriously undermine the fundamental values of our Constitution. ” • Such a conclusion should not be reached lightly because it infringes the constitutional right to strike • Court found that the nature and degree of the violence was not so severe to result in the strike not being functional to collective bargaining and union had made efforts to curb the violence

Amending labour legislation • Applications for legal representation

Amending labour legislation • Concluding pre-arbitration minutes • Rule 20(1) – parties must hold a pre-arbitration conference if directed to do so by the Director • Commissioner may direct parties to hold a further pre-arbitration conference • Commissioner may make an order for costs against a party that fails to attend a pre-arbitration conference without justifiable reason

Amending labour legislation • Delays in the Labour Court • Clause 11. 2. 2 of the Practice Directive – Record to be filed within 60 days • Clause 11. 2. 3 – if fail to file within prescribed time or fails to obtain consent for extension of time or fails to apply to JP for an extension of time if consent refused, then application is deemed to have been withdrawn • Clause 11. 2. 7 – all necessary application papers must be filed within 12 months. If not, application is archived and regarded as lapsed unless good cause is shown • NUMSA obo Matabane v Fabricated Steel Manufacturing

Amending labour legislation Conclusion Presenter: Murray Alexander Norton Rose Fulbright SA Inc. Email: murray. alexander@nortonrosefulbright. com Tel +27 31 582 5640 Cell +27 83 454 8811