The document summarizes proposed amendments to key South African labour laws: 1) The Labour Relations Act amendments extend protections to non-standard employees like temporary workers, fixed-term contract workers, and part-time workers after 3 months of employment. 2) The amendments regulate the use of temporary employment services and provide additional protections for fixed-term contract employees. 3) The amendments also expand the jurisdiction of the CCMA to arbitrate unfair discrimination disputes to assist lower income employees.

1. A S UM M A R Y F O R US E R S
LABOUR LAW
AMENDMENTS

2. INTRODUCTION
The purpose of this presentation is to inform users of the
proposed amendments to the:
 Labour Relations Act (LRA), which commenced on
1 January 2015;
 Employment Equity Act (EEA), which commenced on
1 August 2014; and
 The Basic Conditions of Employment Act (BCEA) which
commenced on 1 Sep 2014.

3. THE LABOUR RELATIONS ACT AMENDMENTS

4. OBJECTS OF THE LRA
Section 1 of LRA provides that the purpose of the LRA is:
To advance:
 Economic development;
 Social justice;
 Labour Peace; and
 Democratisation of the workplace.

5. Sections 198A, B, and C of the Labour Relations Act are
added to the original Section 198:
 Sections 198A refers to Temporary Employment
Services
 Sections 198B refers to Fixed term contract employees
 Sections 198C refers to Part time employees
SECTION 198A-D
REGULATION OF NON-STANDARD EMPLOYMENT

6. Broad changes:
 Sections 198A, B and C extend significant protection
particularly to employees earning up to the BCEA threshold
of R 205 433.30 (as amended on 1 July 2014).
 The majority of these protections only apply to employees
after they have been in employment for three months.
 However note the three month deemed provision
SECTION 198A-D
REGULATION OF NON-STANDARD EMPLOYMENT

7. SECTION 198
DEFINITION OF TEMPORARY EMPLOYMENT SERVICE
The definition of “temporary employment services” or
“labour broker” remains unchanged i.e.:
 Any person who, for reward, procures for or provides to
a client other persons –
 Who perform work for the client; and
 Who are remunerated by the temporary employment service

8. SECTION 198A
NEW DEFINITION OF “TEMPORARY SERVICE”
New definition of “temporary service”: The employee works
for:
 the TES’s client for a period not exceeding three months; or
 as a substitute for an employee who is temporarily absent
(e.g. on sabbatical or maternity leave) irrespective of the
three month limit; or
 in a category of work, for any period of time, where the
service is determined to be a temporary service (either as
per a Bargaining Council agreement, or as provided in a
Sectoral Determination / Ministerial Notice).
8

9. SECTION 198A
DEEMED EMPLOYMENT (TES)
Deemed employment: Employees earning:
 below the threshold; and
 who perform a temporary service for more than three months for the
client
are considered employees of the client for the purposes of the LRA, except
employees who work as substitutes for employees who are temporarily absent.
TES and client are jointly and severally liable if TES contravenes a collective
agreement, binding arbitration award, BCEA or a determination made in terms
of the Wage Act, not unfair dismissals.

10. INTERPRETATION - CASUAL EMPLOYEE
AS DEFINED IN THE MIBCO MAIN AGREEMENT
CLAUSE 2 READ WITH CLAUSE 3(5)
If employed by a TES, a Casual Employee might constitute an
exception to the Section 198A deemed employment after three
months provision, i.e. Casual Employee is defined as an employee:
 Not registered with MIBCO;
 Not more than 24 hours per month;
 Not more than (104 days) per year if student;
 Earnings – hourly as per Main Agreement;
 Other provisions in terms of Main Agreement with regards to
conditions of employment not applicable to casual employees.
Essentially in this manner the three month period might be
extended

11. INTERPRETATION – PART TIME EMPLOYEE AS
DEFINED IN THE MIBCO MAIN AGREEMENT
CLAUSE 2 READ WITH CLAUSE 3(5)
If employed by a TES, a Part Time Employee might constitute an
exception to the Section 198A deemed employment after three
months provision, i.e. Part Time Employee is defined as an
employee:
 An employer may only employ a Clerk (Division B), in terms of the
Main Agreement as Part Time Employee;
 May not work more than 5 hours per day in any one day;
 Less than 23 hours in a week – no Council contributions payable;
 All other terms & conditions of Main Agreement are applicable.
Essentially in this another possible manner the three month period
might be extended.

12. SECTION 198A
NEW DEFINITION OF “TEMPORARY SERVICE”
New definition of “temporary service”: The employee works
for:
 the TES’s client for a period not exceeding three months; or
 as a substitute for an employee who is temporarily absent
(e.g. on sabbatical or maternity leave) irrespective of the
three month limit; or
 in a category of work, for any period of time, where the
service is determined to be a temporary service (either as
per a Bargaining Council agreement, or as provided in a
Sectoral Determination / Ministerial Notice).

13. SECTION 198A
TES EMPLOYEES - PROTECTIONS
New type of dismissal: Termination by TES (whether at the
instance of the TES or client) of employee’s assignment with
client
 to avoid “deemed employment”; or
 because employee exercises rights in terms of the LRA.
Not less favourable treatment: Deemed employees must be
treated on the whole not less favourably than comparable
employees unless there are justifiable reasons - see
section198D(2)

14. SECTION 198D(2)
JUSTIFIABLE REASONS FOR DIFFERENT TREATMENT
“Justifiable reasons for different treatment” refers to
the application of a system which takes into account:
 seniority, experience, length of service;
 merit;
 quality or quantity of work; and
 any other similar criteria (that are not prohibited by
the EEA).
Note: Affordability is not a justifiable reason.

15. SECTION 198B
FIXED-TERM CONTRACTS
Definition of fixed-term contract:
A fixed-term contract is one which expires on the:
 occurrence of a specified event;
 completion of a specified task or project; or
 a fixed date other than retirement age.

16. SECTION 198B
FIXED-TERM CONTRACT (EXCLUSIONS)
Section 198B does NOT apply where:
The employee:
 earns more than the threshold;
 is employed in terms of a statute, sectoral determination or
collective agreement which allows for a fixed period.
The employer:
 employs less than ten employees; or
 employs less than 50 employees and whose business has
been in operation for less than two years.

17. SECTION 198B
FIXED-TERM CONTRACT
An employer may engage an employee on a fixed-term
contract or successive fixed-term contracts for longer
than three months only if:
 the nature of work is of a limited or definite duration; or
 any other justifiable reason for fixing the term.

18. SECTION 198B
JUSTIFIABLE REASONS: FIXED-TERM CONTRACT
Non-exhaustive list of justifiable reasons for successive
fixed term contracts or contracts longer than three
months (employer bears the onus to prove):
(a) replacing another who is temporarily absent;
(b) temporary increase in work, not longer than 12 months;
(c) student to gain experience;
(d) engaged for specific limited duration project;
(e) non-citizen with work permit;
(f) seasonal work;
(g) public works scheme;
(h) external funding; and
(i) reached retirement.

19. SECTION 198B
JUSTIFIABLE REASONS - FIXED-TERM CONTRACT
Not less favourable treatment: An employee on a fixed-term
contract for longer than three months must not be treated less
favourably than permanent employees performing
same/similar work, unless justifiable reasons –
see section 198D (2).

20. SECTION 198D(2)
JUSTIFIABLE REASONS FOR DIFFERENT TREATMENT
“Justifiable reasons for different treatment” refers to
the application of a system which takes into account :
 seniority, experience, length of service;
 merit;
 quality or quantity of work; and
 any other similar criteria (that is not be prohibited by
the EEA).
Note: Affordability is not a justifiable reason.

21. SECTION 198B
FIXED-TERM CONTRACTS FURTHER PROTECTIONS
Employees on fixed-term contracts must be provided
with equal access to opportunities to apply for
vacancies (from day one, not only after three months).
Employees on fixed-term contracts for a specific project
that has a limited or defined duration of more than 24
months are entitled to severance pay:
- unless alternative employment with the same or
similar terms is offered;
- prior to expiry of the contract.

22. SECTION 198C
PART-TIME EMPLOYMENT
Definition: A “part-time employee” is an employee:
 who works shorter hours than a comparable full-time
employee; and
 who is paid is according to the time worked.
A “comparable full-time employee” is an employee:
 who is paid for a full day; and
 who is identifiable as a full-time employee in terms of
custom and practice.

23. SECTION 198C
PART-TIME EMPLOYEES (EXCLUSIONS)
Section 198C does NOT apply where:
The employee:
 earns more than the threshold;
 ordinarily works less than 24 hours;
 during the first three months of continuous employment
The employer:
 employs less than ten employees; or
 employs less than 50 employees and whose business has
been in operation for less than two years.

24. SECTION 198C
DIFFERENT TREATMENT
Part-time employees may not be treated less favourably than
full-time employees unless justified - see section 198D (2).
Justifiable reasons for different treatment refers to the
application of a system which takes into account :
 seniority, experience, length of service;
 merit;
 quality or quantity of work; and
 any other similar criteria (that is not be prohibited by the
EEA).
Note: Affordability is not a justifiable reason.

25. SECTION 198C
PART-TIME EMPLOYEES: FURTHER PROTECTIONS
Part-time employees (after three months of
employment) must be provided with:
 equal access to opportunities to apply for vacancies;
and
 access to training and skills development.

26. SECTION 198D
GENERAL PROVISIONS
 Disputes about the interpretation and application of
sections 198A, B and C may be referred to the CCMA
or BC.
 An interpretation dispute must be referred within six
months after the act or omission.
 Dismissal or ULP disputes must be referred within the
existing time limits.

27. SECTION 198A-D
TRANSITIONAL ARRANGEMENTS
Protections for all non-standard employees apply from
the date the amendments come into effect.
But:
If the contract was entered into before the date of
commencement of the amendments, the changes will
be applicable from 1 April 2015.

28. SECTION 198A
TRANSITIONAL ARRANGEMENTS
Section198A is applicable after the commencement
date of the Act i.e. 1 January 2015.
But:
If TES services were procured before the 1 January
2015, section198A will be applicable from 1 April 2015

29. SECTION 198B
TRANSITIONAL ARRANGEMENTS
Section198B applies to any fixed-term contract
concluded after 1 January 2015.
But:
If the fixed-term contract was concluded before 1
January 2015, section 198B will apply from 1 April 2015.

30. SECTION 198C
TRANSITIONAL ARRANGEMENTS
S198(C) applies to any part-time employee employed
after 1 January 2015.
But:
If the part-time employee was employed before 1
January 2015, section 198C applies with effect from 1
April 2015.

31. ORGANISATIONAL RIGHTS

32. PURPOSE OF THE AMENDMENTS TO SECTION 21
Reason:
 To provide for the organisation of employees engaged by
a TES;
 To broaden the discretion of commissioners in respect of
the granting of organisational rights;
 To grant majority rights to the most representative union;
 To allow a commissioner to grant organisational rights
despite a threshold collective agreement.

33. WHO MAY OBTAIN ORGANISATIONAL RIGHTS?
2014/09/17
35
Currently:
Sufficiently
representative
union
Currently:
Majority union
Additional:
Most
representative
union
Additional:
Significant
interest
Access (s12),
Stop orders (s13)
Leave (s15)
TU reps (s14)
Disclosure (s16)
Access (s12),
Stop orders (s13)
Leave (s15)
TU reps (s14)
Disclosure (s16)
Set thresholds (s18)

34. SECTION 21(8C)
EXERCISE OF ORGANISATIONAL RIGHTS
Change
In an arbitration a commissioner may:
 in terms of sub-section(8B) grant organisational rights to
unions who are the most representative trade union in
the workplace.
 in terms of sub-section(8C) grant organisational rights
to unions who represent a significant interest or a
substantial number of employees in the workplace
despite an existing threshold agreement; or
 (Both subject to conditions)

35. DISPUTE RESOLUTION

36. Change
 A party must apply for a court date within six months of
delivering the application - court may condone late
application.
 Review proceedings do not suspend operation of
arbitration award, unless security is furnished.
 Review proceedings do interrupt prescription.
 A judge must deliver judgment within a reasonable period
of time.
SECTION 145
REVIEW OF AWARDS

37. Reason
 To empower the Commission to intervene in protracted
disputes to try to resolve the dispute, where in the public
interest;
 To remove the need for consent.
SECTION 150
COMMISSION OFFER TO RESOLVE DISPUTE

38. UNFAIR DISMISSAL

39. Change
There is an additional type of dismissal:
 Currently an employee whose fixed-term contract expires
must show that he/she expected to be given a new
contract on the same or similar terms.
 Now, employees may also claim dismissal on the expiry of
the contract if they can show that they reasonably
expected to be employed on an indefinite period.
A claim for unfair dismissal – the expectation may be one of
permanent employment.
SECTION 186
MEANING OF DISMISSAL

40. Change
 Name changes from “pre-dismissal arbitration” to “enquiry
by arbitrator”.
 May be agreed upon in collective agreements.
 Legal representation by agreement or if permitted by the
arbitrator on application (in terms of the CCMA Rules).
(The fee increased as from 1 April 2014 to R 5 131.00 per day
or part thereof)
SECTION 188A
ENQUIRY BY ARBITRATOR

41. Currently:
“the earlier date of either the termination of the
contract or when employee left the service of the
employer.”
Change (addition to sub-section 2):
(d) “if an employer terminates an employee’s
employment on notice, the date of dismissal is the date
on which the notice expires or, if it is an earlier date, the
date on which the employee is paid all outstanding
salary.”
SECTION 190(2)(d)
DATE OF DISMISSAL

42. SECTION 213:
DEFINITION OF “SERVICE”
Change
The definition of “service” is amended to
include service by electronic mail and any
other method of service specified by the Rules
of the Commission.

43. BASIC CONDITIONS OF EMPLOYMENT ACT AS
AMENDED ON 1 SEPT 2014

44. SECTION 74
CONSOLIDATION OF PROCEEDINGS
If consolidating with a dismissal dispute:
Prior to the amendments, a claim for outstanding monies
such as notice pay, leave, overtime:
 Had to be referred along with the dismissal dispute;
 the claim could not be outstanding for more than a year;
 It was a requirement that no compliance order had
already been made or other legal proceedings
instituted.
Change:
 All these requirements are removed;
 The only requirement is that the claim has not prescribed;
 The prescription period is three years.

45. EMPLOYMENT EQUITY ACT
AS AMENDED ON 1 AUG 2014

46. SECTION 6
PROHIBITION OF UNFAIR DISCRIMINATION
Reason
To expand the jurisdiction of the CCMA to arbitrate unfair
discrimination disputes;
To assist lower income employees to have their disputes
adjudicated in a cost effective manner.

47. SECTION 6
PROHIBITION OF UNFAIR DISCRIMINATION
Currently:
Section 6 of the EEA provides that it is unfair to discriminate
against an employee on the grounds of:
Race, gender, sex, pregnancy, marital status, family
responsibility, ethnic or social origin, colour, sexual
orientation, age, disability, religion, HIV status,
conscience, belief, political opinion, culture, language
and birth.
Change:
Section 6 adds “or any other arbitrary ground”.

48. SECTION 11
BURDEN OF PROOF
Before:
“Whenever unfair discrimination is alleged in terms of this
Act, the employer against whom the allegation is made must
establish that it is fair”.
Now…

49. SECTION 11
WHO MUST PROVE UNFAIR DISCRIMINATION?
• Did not occur;
• Rational, not unfair or
justifiable.
Listed ground,
employer to
prove:
• Conduct not rational;
• Conduct is discrimination;
• Discrimination is unfair.
Arbitrary
ground,
complainant
to prove:

50. KEY CHANGES

51. KEY CHANGES
 Section198A-D - Non-standard employees the same
protection as permanent/full-time employees, except
where genuine TES employees.
 Section 21 - Organisational rights: There are two new
categories to obtain organisational rights – most
representative and significant interest.
 Section 69 - Picketing may take place on property
controlled by a third party.
 Section 111 - Deregistered unions and employers’
organisations may not represent at the CCMA/BC
pending an appeal, unless a court orders otherwise.

52. KEY CHANGES
 Section 103A - A union or employer’s organisation may
be placed under administration with a commissioner
appointed as administrator.
 Section 115 - The CCMA may provide assistance of an
administrative nature to employees who earn less than
the BCEA threshold to serve any notice or document in
terms of the LRA.
 Section143 - A certified award does not need to be
made an Order of Court before contempt proceedings
can be instituted.

53. KEY CHANGES
 Section 150 - The CCMA may intervene in protracted
disputes to try to resolve the dispute, where in the public
interest, without consent of the parties.
 Section 189A - Consulting party may not unreasonably
refuse to extend the 60-day consulting period in section
189A facilitations.
 Single and small business employees (up to nine) may
choose to have retrenchment disputes arbitrated.
 Section 213 - The definition of “service” is amended to
include service by electronic mail and any other method
of service specified by the Rules of the Commission.

54. KEY CHANGES
 Section 74 of BCEA - The only barrier for claiming
outstanding monies (other than severance pay) along
with a dismissal dispute is prescription.
 Section 6 of EEA - Equal pay for work of equal value is now
specified as a form of unfair discrimination.
 Section 10 of EEA – Employees under the threshold may
choose arbitration by the CCMA of discrimination
disputes.

55. KEY CHANGES
The ultimate purpose of the amendments is to ensure that
our labour laws give effect to Constitutional rights, including
the rights:
 to fair labour practices;
 to engage in collective bargaining;
 to equality and protection from unfair discrimination.

56. CONTACT DETAILS