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GUIDE TO THE
AMENDMENTS 2015
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1
Beerman & Coetzee, "Can an employer still raise the retrenchment ag in interest negotiations?
The Fry's Metals case under the Labour Relations Amendment Bill 2012" De Jure 45 (2012) 355.
project work;
student or graduate internships;
seasonal work;
non-citizens who have been
granted a work permit for a
dened period;
replacement of another
employee who is temporarily
absent;
temporary increases in work
volume (expected duration up
to 12 months);
public works or job creation
schemes;
positions funded by external
sources for limited periods;
and
after retirement age was
reached.
ENFORCEMENT OF
ARBITRATION AWARDS
(LRA s143)
What is the effect of the amendment
to the LRA dealing with the
enforcement of arbitration awards?
The amendments to this section intend
to further streamline the mechanisms
for enforcing arbitration awards of
the CCMA and to make these
mechanisms more cost effective and
accessible to low earning litigants.
How does it purport to achieve this?
An award for the payment of money
that has been certied by the CCMA
can be presented to the Deputy-Sheriff
for execution if payment is not made.
This removes the need for the current
practice in terms of which parties rst
have to have a writ issued by the
Labour Court.
The enforcement of awards to pay
money will now occur in terms of the
Rules and Tariffs applicable to the
Magistrate's Court, thus simplifying
and reducing the costs of execution of
awards for the payment of money.
In the case of awards such as
reinstatement which are enforced by
contempt proceedings in the Labour
Court, the need to have an arbitration
award made an order of the Labour
Court before contempt proceedings
can be commenced with, is removed.
STREAMLINING REVIEWS
(LRA s145)
Is there a time limit to have a review
application heard by the Labour
Court?
The application must still be initiated
within six weeks of the date of the
arbitration award. Any applicant
must now, within six months of
launching the review proceedings,
nalise the review so that it is ready
to be heard by the Labour Court and
a trial date can be applied for.
Can the Labour Court condone action
which falls outside of the six month
period?
The Court can condone late action
but it would be inclined not to.
How else are review proceedings
affected by the amendments?
The institution of review proceedings
does not suspend the operation of
an arbitration award. The award will
be suspended only if the applicant
furnishes security to the satisfaction
of the Court. In the case of a
reinstatement or re-employment order
the security must cover 24 months'
remuneration and in the case of a
compensation order must be
equivalent to the amount of
compensation ordered.
What about prescription of
arbitration awards?
The various conicting judgements
led to an amendment to the LRA
that an application to set aside an
arbitration award will interrupt the
running of prescription in respect of
that award.
How long will it take for judges to
hand down review judgements?
The judgements must be delivered
'as soon as reasonably possible'.
THE EXTENSION OF
COLLECTIVE AGREEMENTS
CONCLUDED IN A
BARGAINING COUNCIL
(LRA s32)
Can the Minister of Labour simply
extend a collective agreement
concluded in a bargaining council to
a specic sector?
The position before the amendment
has been that the Minister was
obliged to extend such an agreement
when the parties to the Bargaining
Council were representative in
number of the employees in the
sector. The Minister in addition had
a further discretion to extend the
agreement having taken into account
a number of other factors.
Now, pursuant to the amendment to
s32(2), where a Bargaining Council
requests in writing that the Minister
extend a collective agreement
concluded in the Council to any nonparties to the collective agreement
that are within its registered scope
and are identied in the request,
the Minister must rst within 60
days of receiving such request
publish a notice in the Government
Gazette calling for comments within
21 days. Only thereafter may the
Minister extend the agreement from
a specied date and for a specied
period, thereby making it binding
on the non-parties specied in the
notice. The requirements for an
independent exemption body and an
appeal body to exempt employers or
classes of employers from some or all
of theprovisions of such a collective
agreement have also been tightened
up.
CHANGES TO PICKETING
(LRA s69)
Where are employees permitted
to picket?
Prior to the amendment employees
were only allowed to picket in a
place to which the public had access
or on their employers' premises with
its permission. Picketing was not
allowed in for instance a shopping
centre where the employer traded
in one of the shops. In terms of the
amendment, s69(2) now provides
that employees have the right to
picket at a place controlled by
someone other than their employer,
provided that person has a say in the
establishment of the picketing rules.
The employees may still picket inside
A STREAMLINED
ENFORCEMENT PROCEDURE
IN TERMS OF THE EEAA:3
Can parties refer unfair
discrimination claims to the CCMA for
arbitration?
In terms of s10(5) of both the
previous Act and the Amended Act,
any unfair discrimination claim must
rst be referred to the CCMA for
conciliation.
In terms of s10(6) of the existing Act,
upon non-resolution of the dispute
during conciliation, parties would
only be able to refer the matter to
arbitration if the consent from both
sides of the dispute was obtained.
In all other circumstances, unfair
discrimination claims were to be
adjudicated by the Labour Court.
In terms of s10(6) of the Amended
Act, the adjudication of unfair
discrimination claims is more
streamlined, as parties to a dispute
are given the option to refer the
dispute to arbitration at the CCMA
under the following circumstances:
3
All references to the "previous Act" refer to the Employment Equity Act, 55 of 1998 and all
references to the "Amended Act" refer to the Employment Equity Amendment Act, 47 of 2013.
CONTACT US
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This information is published for general information purposes and is not intended to constitute legal advice. Specialist legal advice should always be sought
in relation to any particular situation. Cliffe Dekker Hofmeyr will accept no responsibility for any actions taken or not taken on the basis of this publication.
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2015 0018/FEB
Cliffe Dekker Hofmeyr is a member of DLA Piper Group,
an alliance of legal practices.