1. Labour Law Reform:
National Minimum Wage Bill, BCEA and LRA Amendment Bills, 2017
Select Committee (National Council of Provinces)
20 February 2018

2. BACKGROUND
Call made by President Zuma in his State of the Nation address in June 2014 for the social partners to deliberate on the state of the labour relations environment and to address low wages and wage inequalities.
Ekurhuleni Declaration of 4 November 2014 containing social partner resolutions to seek practical arrangements to promote labour market stability and the introduction of a national minimum wage in SA.
NEDLAC Task Teams convened and worked during
High level Agreement reached in February 2017 between business, labour, community and government on labour market stability measures, legal amendments and a national minimum wage.
LRA Amendment Bill concluded in 2016 and NMW Bill an BCEA Amendment Bill concluded in September 2017.

3. SECRET
INTRODUCTION
Presentation to provide overview of the National Minimum Wage Bill and
amendments to the BCEA and the LRA.
All Bills approved by Cabinet on 1 November 2017 for submission to the National Assembly and the NCOP.
Aim to pass amendments into law in early 2018 with introduction of NMW on 1 May 2018.
LRA Amendments go together with a Code of Good Practice: Collective Bargaining, Industrial Action & Picketing and an Accord on Collective Bargaining and Industrial Action.

4. National Minimum Wage Bill, 2017
SECRET
National Minimum Wage Bill, 2017
The National Minimum Wage Bill, 2017 come from a process of engagement through NEDLAC on wage inequality and the state of the labour relations environment.
The National Minimum Wage Bill (NMW Bill) agreed on at NEDLAC, approved by Cabinet and submitted to National Assembly and NCOP.
Aim to pass NMW Bill into law by 1 May 2018.

5. What is the NMW?
The national minimum wage will be the floor below which no employee should be paid
The level will be R20 per hour from 1 May 2018
Minimum for farm workers: R18 per hour (90% of NMW)
Minimum for domestic workers: R15 per hour (75% of NMW)
Minimum for EPWP: R11 per hour (55% of NMW)
Learner allowances contained in schedule

6. To whom will the NMW apply?
The NMW will apply to all workers, except SANDF, NIA & SASS
NMW applies to all workers – that is, any person who works for another and who receives any payment for that work.
Volunteer workers are not included because they do not receive pay
NMW cannot be varied by contract, collective agreement or law. Variation by contract only where it provides a more favourable wage.

7. How will the NMW be calculated?
NMW is the amount payable for ordinary hours of work. Workers entitled to minimum wage for number of hours worked in a day
NMW does not include payment of allowances (such as transport, food or accommodation) payments in kind (board) tips, bonuses and gifts
Provision is made for the Minister to exclude other forms of payment by regulation

8. How will the NMW be adjusted?
The NMW must be reviewed annually and recommendations made to the Minister for adjustments
In the review of the NMW a number of factors must be considered (inflation, wage levels, GDP, productivity, SMME’s, employment)
The review process should also promote medium term targets, alleviation of poverty and the reduction of wage differentials

9. Who will review the NMW?
National Minimum Wage Commission to be established – will replace the Employment Conditions Commission
Independent Chairperson, 3 members each from Labour, Business and Community, 3 independent experts appointed by Minister of Labour
5 year term of office for NMW Commission
Commission to be supported by a Secretariat.

10. General
Exemptions – An employer may apply for an exemption from the NMW for up to one year.
Regulations to deal with detail of exemption process
Schedules to the NMW Bill contain the actual wage and the tiers for farm, domestic and EPWP workers as well as definitions of farm and domestic workers and EPWP.

11. Basic Conditions of Employment Amendment Bill, 2017
SECRET
Basic Conditions of Employment Amendment Bill, 2017
Presentation to provide overview of:
Basic Conditions of Employment Amendment Bill, 2017
Key amendments including enforcement provisions of the BCEA which also apply to the NMW and penalties for non-compliance
The Basic Conditions of Employment Amendment Bill, 2017 introduces amendments to the Basic Conditions of Employment Act, 1997 consequent upon the enactment of the National Minimum Wage Act, 2017.

12. Key amendments in BCEA Bill
Definitions aligned to include the NMW Act
Daily wage payment - any worker who works for 4 hours or less on any day must be paid for 4 hours. This provision will apply to workers earning below R40 per hour
Inspectors may refer disputes to the CCMA in relation to NMW Act, UI Act and UI Contributions Act.

13. Key Amendments to BCEA cont.
SECRET
Key Amendments to BCEA cont.
Enforcement by inspectors includes NMW Act and UI Acts
An inspector may not issue a compliance order if the employee earns above the threshold (R pa)
A compliance order may be made an arbitration award by the CCMA if an employer has not complied with the order.
Any person may refer a dispute to the CCMA concerning failure to pay any amount owing to that person in terms of BCEA and NMW, a contract of employment or a collective agreement.

14. Key amendments to BCEA cont.
Rights of employees amended to include National Minimum Wage Act (make a complaint to a TU representative, request a TU representative to inspect any record that relates to employment)
Chapters dealing with sectoral determinations and ECC deleted
Transitional provisions: All sectoral determinations remain in force for three years

15. Enforcement Process – Overview
Inspector secures undertaking from employer willing to comply (14 days)
Non-willing employers issued with compliance order (14 days)
Non-compliance=CCMA referral for compliance order to be made arbitration award.
Non-compliance with award= applicant to apply to CCMA to certify award.

16. Penalties & Scale of Fees
CCMA to publish scale of fees regarding:
• the cost of the CCMA to hear the case;
• the cost of the Sheriff enforcing the award
• Penalties and interest.
Penalties for not paying the NMW and for overtime worked:
An employer who fails to pay the NMW and for overtime worked must pay an employee:
• 2 months wage; or
• If it is greater, double the hourly wage for time and overtime worked.
Non-compliance with the NMW = Prohibition to conduct business with any Government department for a period of at least 12 months.
Enforcement by the sheriff i.e. attachment and auction of goods to the monetary value of the award

17. Labour Relations Amendment Bill, 2017
SECRET
Labour Relations Amendment Bill, 2017
1.1 Collective bargaining (clause 32 & 32A)
Extension of collective agreements concluded in bargaining councils will only require majority by either the trade union(s) or the employer party(ies).
Representativeness of parties to be determined annually by the Registrar of Labour Relations and not every time a collective agreement is referred for extension.
The Minister given the power to renew and extend a funding agreement for up to 12 months at the request of any of the parties to a bargaining council.

18. LRA Amendments, cont. 1.2 Picketing (clause 69)
A picket will be prohibited unless there are picketing rules in place.
A commissioner conciliating a dispute that may lead to a strike or lockout may determine picketing rules if there is no agreement in place.
When determining picketing rules, a commissioner must do so in accordance with the default picketing rules in the Code of Good Practice after taking representations made by parties.

19. LRA Amendments cont.
1.3 Minimum and maintenance services (clauses 72 & 75)
Amendments provide for the ratification of minimum service agreements by a panel appointed by the Essential Service Committee and a definition of minimum services.
1.4 Secret ballot (clauses 95,99 & 100)
A ballot means any system of voting by members that is recorded and secret
Records of a ballot may include electronic records
Transitional provisions deal with TU constitutions being amended to make provision for ballots where necessary.

20. LRA Amendments cont.
1.5 Resolution of disputes through conciliation (clause 135)
The 30-day conciliation period may be extended by a further 5 days on application by the commissioner or a party to the conciliation
The Director may only extend the conciliation period if satisfied that it is necessary to ensure a meaningful process.

21. LRA Amendments cont.
1.6 Advisory arbitration panel in the public interest
To resolve strikes or lockouts that are intractable, violent or may cause a local or national crisis, amendments provides for the establishment of an advisory arbitration panel to investigate the circumstances of a strike or lockout and make an advisory award to assist the parties to resolve the dispute.

22. Advisory Arbitration (s.150 A-E)
Director of CCMA establishes an arbitration panel
Panel issues an advisory award within 7 days
Award must subject to consultation and must be either accepted or rejected within 7 days
- AA does not suspend strike but Minister/Director may approach Labour Court for an order to suspend strike in particular circumstances
14 November 2018

23. LRA Amendments cont. 1.7 Other amendments:
Registrar of Labour Relations is independent and must be impartial (s.108)
Amendment to make provision for appointment of a member of the Governing Body of the CCMA as acting Chairperson of the GB (s116).
Clarifying powers of CCMA Governing Body to accredit Bargaining Council dispute resolution panel members (s127 & 128).
2.8 Transitional provisions:
- Registrar must consult with TU’s whose constitutions do not make provision for strike balloting on appropriate means to amend the constitution and comply with section 95 (5).
14 November 2018

24. Labour market stability measures
Code of Good Practice on Collective Bargaining, Industrial Action and Picketing
Provides practical guidance on collective bargaining, the resolution of disputes of mutual interest, the resort to peaceful industrial action and picketing processes.
Code to be published with amendments to Labour Relations Act to ensure that any person interpreting the LRA takes the Code into account.
Code covers:
Collective bargaining and disputes of mutual interest
Workplace democracy and dialogue
Industrial action: strikes and lockouts
Picketing
Good faith declaration and default picketing rules included as Annexures.
14 November 2018

25. Labour market stability measures cont.
Accord on Collective Bargaining and Industrial Action
All social partners commit to take all steps necessary to prevent violence, intimidation and damage to property and improve the capacity of the social partners and other agencies to resolve disputes peacefully and expeditiously.
Parties to the Accord include trade unions, employer organisations, Government (including SAPS) and various Agencies (CCMA, Bargaining Councils, SETA’s, National Skills Authority and Private Security Industry Regulatory Authority.
Accord outlines undertakings the signatories commit to which aim at expediting dispute resolution, minimising conflict in labour relations and building capacity for implementing Code of Good Practice.

26. SECRET
Questions…