2. Amending labour legislation
Presenter: Murray Alexander
RICA – Accessing employees’ mailboxes
Employment Equity Act – Failure to submit Employment Equity Plans
Section 198A 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

3. 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

4. Amending labour legislation
Employment Equity Act – Failure to submit Employment Equity Plans
Previously S36(1)(c) made provision for compliance orders to employers without EE Plans
S37 makes provision for compliance orders excluding EE Plans
S36 makes provision for written undertakings excluding EE Plans
S20 allows the DOL to bring an application to the LC to fine employers from 2% (R1.5m) to 10% (R2.7m) of employer’s annual turnover

5. Amending labour legislation
S198A of the LRA – Temporary Employment Services
NUMSA v Assign Services and Others (JA96/15) [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

6. Amending labour legislation
Strikes that are not functional to collective bargaining
Tsogo Sun Casinos t/a Montecasino
“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.”

7. 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

8. 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

9. Amending labour legislation
Strikes that are not functional to collective bargaining
Secret ballot required in terms of 1956 LRA
Ballot required in union constitutions – S95(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)

10. 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

11. 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

12. 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

13. Amending labour legislation
Applications for legal representation

14. 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

15. Amending labour legislation
Delays in the Labour Court
Clause of the Practice Directive – Record to be filed within 60 days
Clause – 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 – 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

16. Amending labour legislation
Conclusion
Presenter: Murray Alexander
Norton Rose Fulbright SA Inc.
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