Change is as good as… the 2017 LRA Amendments

To address violence and prolonged strikes in the context of Constitutional rights and to find ways of strengthening and promoting collective bargaining in South Africa, the Labour Relations Amendment Bill, 2017 (the Bill) seeks to amend the Labour Relations Act 66 of 1995 (the LRA).

The amendments seek to provide criteria for the Minister before he is compelled to extend the collective agreement as contemplated in the LRA, to provide for the renewal and extension of funding agreements, to provide for picketing by collective agreements or by determination by the Commission. 

Furthermore, in terms of picketing regulations the Bill amends the LRA to provide for the classification of a ratified or determined minimum service, to extend the meaning of ballot to include any voting by members that is recorded in secret, to provide for the independence of the registrar and the deputy registrar, to provide for the appointment of an arbitration panel, to provide for the advisory arbitration panel, to provide for an advisory arbitration award and for the matter relating to the arbitration award, to provide for the transitional provisions and the matters connected therewith. 

The Bill therefore has a strong focus on addressing Collective Bargaining and Industrial Action, with the following being the proposed amendments to the LRA:

Extension of collective agreement concluded in bargaining council (Section 32)

The Bill has amended the LRA in four instances.

In the first instance, the period within which the Minister must extend a collective agreement if the parties to the agreement are only sufficiently representative has been extended to 90 days. 

The second instance is the changes to the representativeness requirements for the extension of collective agreements. Originally the trade union party to the agreement was required to represent the majority of the employees and the members of the employer's organisation party to the agreement had to employ the majority of employees within the scope of the agreement, however the amendment now only requires one or the other. This amendment has therefore brought about a change to the operating principle underlying the extension of agreements to one of coverage rather than representativeness. 

The third instance is to give effect to the manner in which representativeness is determined in that the representativeness of bargaining councils and their constituent parties are to be determined annually by the Registrar and not each and every time a bargaining council refers a collective agreement to the Minister for extension.

In the fourth instance, the Bill gives the Minister the power to make regulations on the procedures and criteria that bargaining councils must take into consideration for purposes of complying with the requirements for exemptions from collective agreements. 

Renewal and extension of funding agreements (Proposed insertion of Section 32A)

This amendment seeks to address the affect collective agreements have on the funding of bargaining councils and their pension, medical aid and other funds in that the failure to secure an agreement to extend or renew those collective agreements threatens the continued existence of those bargaining councils and funds. 

The Bill therefore gives the Minister the power to renew and extend a funding agreement for up to 12 months at the request of any of the parties to the bargaining council, if the agreement has expired or the parties to the agreement have failed to conclude an agreement to renew or replace the funding agreement within 90 days before its expiry. 

To renew and extend a funding agreement, however, the Minister has to be satisfied that the failure to renew the funding may undermine collective bargaining at sectoral level. 

Representativeness of council (Section 49)

This amendment extends the determination of the representativeness of a bargaining council, contemplated in terms of this section, to two years. 

Picketing (Section 69)

As alluded to above, the levels of picket line violence that have become a familiar characteristic of strikes require more stringent regulation to ensure the orderly conduct of pickets in strikes. The purpose underlying this amendment is to require trade unions to take responsibility for the picket to ensure that the constitutional rights of others, such as the constitutional right to freedom and security of persons, freedom of association, fair labour practices and property, are not infringed.

To ensure the above, the purpose of the Bill is to prohibit a picket unless there are picketing rules in place, which the trade union is entitled to participate in making.

Accordingly, the amendments require a commissioner conciliating a dispute or the person appointed by a bargaining council to conciliate a dispute that may lead to a strike or a lockout, to determine the picketing rules if there is no existing collective agreement regulating picketing, or the commissioner has failed to secure an agreement on picketing before the expiry of the conciliation period. 

In determining the rules, the commissioner must do so in accordance with the default picketing rules prescribed or published in a Code of Good Practice and after taking any representations made by the parties to the dispute attending the conciliation meeting into account. 

In circumstances such as the unilateral alteration of terms and conditions of employment and an unprotected strike, a direct application may be made to the Commission on an urgent basis. 

Regulations for essential services committee (Section 70F)

The Bill has deleted section 70F(2), which deals with the rules made by the Commission.

Minimum services and maintenance services (Section 72 & 75)

The amendments provide for the ratification of minimum service agreements by a panel appointed by the essential service committee and for a definition of minimum services.

Accordingly, a minimum service agreement is one in which the employees in an essential service are allowed to strike provided that a minimum level of production or service is maintained at which the life, personal safety or health of the whole or part of the population are not endangered. 

Provision is further made to permit the panel appointed by the essential services committee to vary or rescind the designation of the whole or part of a service as a maintenance service. 

Secret ballot (Section 95, 99 & 100)

The existing LRA requires trade unions and employer organisations that seek registration to have a provision in their constitution requiring a ballot of members before embarking on a strike or lockout. To provide for new technologies of balloting while at the same time maintaining good governance, the amendment clarifies that a ballot means any system of voting by members that is recorded and in secret. 

The records that registered trade unions and employer organisations must keep, and which include ballot papers, are also amended by the Bill to include the attendance register, minutes or any other prescribed record of its meetings or any documentary or electronic record of the ballot. 

Appointment of registrar of labour relations (Section 108)

This amendment attempts to clarify that the registrar and the deputy registrars are independent and subject only to the Constitution and the law. They must be impartial and exercise their powers and perform their functions without fear, favour or prejudice.

The amendments also place a prohibition on any person or organ of state from interfering with the functioning of the registrar. 

Commission for Conciliation, Mediation and Arbitration (CCMA) (Section 116, 127 & 128)

The Bill has amended the sections of the LRA dealing with the CCMA in three instances.

The first instance is to give the governing body of the CCMA the power to appoint an acting chairperson if the chairperson is absent or the office is vacant.

The second instance seeks to provide that a council or private agency may apply for the accreditation of its dispute resolution panel.

The third instance requires that an accredited bargaining council or private agency may only appoint a person to resolve a dispute if that person is accredited by the governing body of the CCMA, to ensure that the persons appointed have the requisite qualifications and experience. 

Resolution of disputes through conciliation (Section 135)

The amendments allow for a commissioner conciliating the dispute or a party to the conciliation to apply to the director of the CCMA for an extension of the 30-day conciliation period by a period not exceeding five days. 

An extension is only permitted where the extension is necessary to ensure a meaningful conciliation process, a party's refusal to agree to the extension is unreasonable and where there are reasonable prospects of reaching an agreement. No extension is however permitted where the state is the employer. 

Advisory arbitration panel (Proposed insertion of Section 150A, 150B, 150C & 150D)

To resolve strikes or lockouts that are intractable, violent or may cause a local or national crisis, the Bill provides for the establishment of an advisory arbitration panel to investigate the cause and circumstances of a strike or lockout on an expedited basis to make an advisory award in order to assist in resolving the dispute.

The director may only establish an advisory arbitration panel if directed to do so by the Minister or the Labour Court, on application by a party to the dispute or by agreement between the parties and only if one of three circumstances are present namely:

(a) The strike or lockout is no longer functional to collective bargaining, it has continued for a protracted period and no resolution appears imminent; or

(b) There is an imminent threat that constitutional rights may be or are being violated by those participating or supporting a strike or lockout through the threat or use of violence or damage to property; or

(c) The strike or lockout is causing or may cause an acute national or local crisis affecting the conditions for normal social and economic functioning of the community or society.

The Labour Court may only make an order directing the director to establish an advisory arbitration panel if it is satisfied that the last two circumstances exist, and the application is made by a person or association of person that are or will be materially affected by the circumstances.

The arbitration panel must conduct its proceedings and issue an advisory award within seven days of the hearing although provision is made for the director to extend the period, taking into account the urgency of the resolution of the dispute. The parties to the dispute are required to indicate their acceptance or rejection of the advisory award within seven days of the award or if extended, a maximum of 13 days. If the parties fail to do so, the party is deemed to have accepted the advisory award. Before a party to a dispute rejects the advisory award, it must consult with its members and motivate its rejection.

An advisory award is only binding if the party to the dispute has accepted or is deemed to have accepted the award. 

Delegations (Section 208A)

This is merely a technical amendment to align section 208A with the proposed amendments to section 32. 

Transitional provisions 

The Bill seeks to provide for transitional provisions to allow the Registrar to consult with national office bearers of those unions and employers’ organisations that do not provide for a recorded and secret ballot in their constitutions and therefore the most appropriate means to amend their constitutions to comply with section 95.

While there has been agreement on some of the amendments, as expected, there remain key areas of disagreement, which have been highlighted by the recent strike on 26 April 2018 in which the unions have made it abundantly clear that they are not in agreement with some of the proposed amendments, specifically in relation to the holding of compulsory strike ballots, new picketing rules and the extension of the period of conciliation, which may make going out on strike more difficult. Accordingly, consultations and debates on the implementation of the proposed amendments are still ongoing. 

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