21 November 2012

South Africa: Labour Law Changes 'Significant'

Cape Town — Proposed changes to labour legislation will have a significant impact on how employers conduct their business, labour experts said on Wednesday.

The draft Employment Equity Amendment Bill introduced a new form of unfair discrimination said Johan Botes, employment practice director at commercial law firm Cliffe Dekker Hofmeyr.

"This will regulate situations where different employment conditions are applied to different employees who do the same or similar work (or work of equal value)," he said in a statement.

Unless the employer could show that differences in wages or other conditions of employment were, in fact, based on fair criteria, such as experience, skill, and responsibility, such conduct would constitute unfair discrimination.

Regarding affirmative action, Botes said the labour department would have more powers to fine companies which did not comply with their employment equity obligations.

The quantum of fines would be increased and could also be determined by making reference to the employer's annual turnover.

"Furthermore, the group of people who benefit from affirmative action will now be limited to persons who were citizens of South Africa before the democratic era (or would have been entitled to citizenship, but for the policies of apartheid), and to their descendants."

This meant that the employment of people who were foreign nationals, or who had become citizens after April 1994, could not assist employers meet their affirmative action targets, he said.

Employment practice associate Mark Meyerowitz said the proposed amendments would also affect a company's use of contract workers.

"In line with proposed amendments to the Labour Relations Act...employees who are placed with a client by a labour broker for longer than six months will be deemed to be employees of the company for the purposes of affirmative action."

The draft Employment Services Bill was a new government initiative that would set up a public "employment services agency", and also provided for regulating and registering private employment services agencies.

"These agencies are not labour brokers but institutions that will provide job seekers with certain services, such as matching job seekers with available work opportunities, registering job seekers, job vacancies, and facilitating other employment opportunities."

"The bill would also set up a nationwide database to monitor employment and assist with government's goal of creating more jobs, decent work, and sustainable livelihoods," Meyerowitz said.

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