2018 has been a stand-out year for labour law, with a number of proposed amendments to existing employment laws as well as the possible addition of new legislation.
According to Talia Conversano, an associate in the Employment Law department at law firm Shepstone Wylie, the biggest changes to show up this year surround the Labour Laws Amendment Bill, the National Minimum Wage Bill, and the proposed amendments to the Basic Conditions of Employment Act.
Below she broke down these changes and how they will affect South African employees and employers.
“The Labour Laws Amendment Bill is a new piece of legislation which seeks to introduce parental leave for not only the birth of a child, but also for parents who choose to adopt or commission the services of a surrogate,” said Conversano.
“The bill removes the provision for Family Responsibility Leave for the birth of a child, which usually applies to the father or in the case of a same-sex relationship, the non-child bearing parent, and provides ten consecutive days leave for parental leave when an employee’s child is born or adopted.”
She noted that under the amendment, an employee who is an adoptive parent of a child younger than two years or who is a commissioning parent in a surrogacy agreement, will be entitled to ten consecutive weeks leave.
“However, if there are two adoptive parents, one parent will be entitled to ten weeks leave and the other only ten consecutive days leave,” she said.
She added that there are no provisions dealing with how an employer can determine who is entitled to the longer form of leave as in most cases the parents will not both be working for the same employer.
“While the object of the bill is to be gender neutral, it still remains to be seen whether it will be challenged as being discriminatory on the grounds that maternity benefits for female employees are greater than those for males who elect to be the primary caregiver.
“It may also be seen to be discriminatory against women who are unable to bear their own children, as they are not afforded the same maternity benefits as those that are able,” she said.
Minimum wage and Basic Conditions of Employment Act
According to Conversano, the current focus is on the National Minimum Wage Bill and the proposed amendments to the Basic Conditions of Employment Act.
However she noted that the amendments to the Basic Conditions of Employment Act largely to cater for the National Minimum Wage Bill.
Conversano said that the major changes include:
- The amendments provide for fines for not paying an employee in accordance with the National Minimum Wage Bill which may be the greater of twice the value of the underpayment or twice the employee’s monthly wage, as well as providing Labour Inspectors with the power to enforce the National Minimum Wage.
- It will also be possible for employees who earn below the minimum earnings threshold of R205,433.30 per annum to refer disputes relating to the non-payment of wages to the CCMA. Employees earning above the threshold maintain their right to ventilate their disputes relating to the non-payment of wages through the Civil or Labour Courts.
- A new section has been added which provides that employees who work less than four hours a day must not be paid less than four hours on that day. An exemption to this Section would be employees who work less than 24 hours a month for an employer.
- The CCMA has been given a wider jurisdiction relating to labour inspectors and the enforcement of compliance orders.
- If an employer fails to comply with a labour inspector’s written undertaking or compliance order, the Director General may apply to the CCMA instead of the Labour Court, to have the written undertaking or compliance order given the status of an arbitration award.
“The intention of giving the CCMA the power to adjudicate compliance disputes is an attempt to resolve these disputes faster than if the disputes were to be referred to the labour court,” said Conversano.
“It is also considered to be a more cost-effective process. It will be interesting to see whether the CCMA has the capacity to cope with what could potentially be a large number of disputes in the manner in which the amendments intend.”