Presentation on Labour Relations Actand Basic Conditions of Employment Act

Presented by Agri SA

Anton Rabe and Elize van der Westhuizen

Background Agri South Africa (Agri SA):

• A federally structured organisation with 9 provincial unions and 28 commodity organisations;•Endorses a value system based on principles of voluntarism and democracy;•Strives to be representative of the diversity of the South African agricultural community;•Promotes, on behalf of its members, the sustainability, profitability and stability of commercial agriculture through its involvement and input on national and international level.

Vision 2030 – job creation

• Agri SA took note of and commented on the National Planning Commission’s Vision 2030 document.

• The document sets out the Government’s targets in relation to the elimination of poverty through job creation.

We highlighted 2 aspects in this context

Vision 2030 – job creation #2

A. Flexibility of Legislation

“Although the labour movement in South Africa would claim that related legislation in South Africa is not “inflexible”, those who actually employ people have a different view. This is demonstrated by the number of jobs shed and the general reluctance to hire permanent employees when trading conditions improve or are favourable”  

B. Trend towards A-typical employment

“The worldwide trend is toward A-typical employment. Seasonal workers, who form one of the biggest components of the work force in the agricultural sector, fall within this category of employment. Agri SA believes that the current dispensation for sectoral determination and minimum wages provide sufficient flexibility obviating the need for more stringent legislation pertaining to A-typical employment”

Agri SA, as a member of BUSA, endorses the BUSA presentation

on LRA & BCEAThis endorsement includes but is not limited to:

(1) The equal treatment provisions•These amendments aims to secure for all a-typical employees, who have been engaged for longer than 6 months and who earn less than R183 000 pa, the same pay, benefits and general treatment as permanent workers.

•We can agree to the principle of minima i.e. minimum wages and conditions of employment, but principles such as productivity, experience, expertise and full-time vs part-time employment is a practical reality – if ignored job shedding will follow

•The introduction of the proposed statutory provident fund for this sector, also for seasonal workers working (intermittently)>8 months of a year, will be impractical

(2) Limitations and risks on restructuring and retrenchments

•These changes will pose risks and challenges to employers wishing to embark on large-scale restructuring and retrenchments. •The provisions impact fundamentally on the ability of a business to adapt and adjust to changing market conditions and respond to competitive forces.

Agri SA, as a member of BUSA, endorses the BUSA presentation

(3) Prohibited conduct•This provision prohibits employers to require that a employee purchase any goods, products or services from the employer.•Due to distance from such facilities, many farmers have farm stores where workers can purchase food and other essential items.•Such arrangements should not be perceived as transgressions of the law.

Agri SA, as a member of BUSA, endorses the BUSA presentation

Agriculture specific comments

(1) Labour Tenants

• Agri SA does not support any provision that will provide rights in terms of the Basic Conditions of Employment or any other labour legislation to labour tenants where no legitimate employment contract exists between such employer and employee.

• The Labour Tenants Act explicitly states that it is important to clearly distinguish between farm workers and labour tenants, recognising the fact that the Labour Tenants Act applies only to labour tenants.

• Farm workers are specifically excluded from the definition of a labour tenant

• A farm worker is an employee who has an employment contract with an employer and will fall within the scope of labour legislation and the sectoral determination 13 for farm workers.

(2) Representation thresholds for minority trade unions

• It is likely, given the difficulty that trade unions have in “organising” workers in the agricultural and forestry sectors, the Minister will be pressured by trade unions into lowering the threshold significantly from that provided for in the LRA.

• Given the current level of union representativeness and the fact that the threshold applies to an entire sector rather than a single workplace, it could well be the case that many individual employers will have to grant organisational rights even though union representivity in the workplace is either extremely low or even non-existent.

• The Sectoral Determinations are essentially in place to determine the basic conditions of employment in a particular sector of the economy.

• The LRA should not be dealing with industrial relation issues such as assisting trade unions to organise workers in a sector

Agriculture specific comments

(3) Increase on actual rates of pay• The amendments seek to provide the Minister the

authority to make adjustments on minimum as well as actual rate of pay for workers in terms of sectoral determinations.

• This will encourage employers to only pay at a minimum wages with no higher “scales”

• Increases in actual payments will increase the cost of doing business which is especially problematic in an industry which is a “price taker” and not a “price maker”.

Agriculture specific comments

(4) Compliance and enforcement

• The amendments make it voluntary for an inspector to seek an undertaking. The amendments also remove the employers right to object or appeal against compliance orders.

• Article 3 of ILO convention 81 requires that a labour inspector in securing enforcement of legal provisions, should supply technical information and advice.

• This amendment is contra convention 81.

Agriculture specific comments

Agriculture specific comments

(5) Heavier penalties for offences

• Given the discretion provided for labour inspectors, the intention to impose heavier penalties for offences is highly problematic as labour inspectors do not have applicable qualifications or legal knowledge to decide on suitable remedies

• This could lead to different outcomes and interpretation of compliance requirements in the workplace.

Request for RIA

In light of Governments targets set out in the Vision 2030 document, Agri SA requests the Portfolio Committee to

conduct an Regulatory Impact Assessment on the proposed amendments to get a better

understanding of the impact the

proposed changes will have on these targets.

Thank you