The proposed amendments to SA's labour laws provide a compromise between the competing interests of business and labour, but will have significant implications for employers and employees, according to Brian Patterson, employment law director at Edward Nathan Sonnenbergs (ENS).
Patterson, speaking at the ENS employment law seminar on Wednesday, said that the constitution had "saved us" from a ban on labour broking.
SA had lost more than 50,000 jobs in the first quarter of the year, and brokers currently employed more than one million people in the country, he said, adding that labour brokers had a role to play in SA.
"But they have been guilty of abuse over the years," he said.
Because of this, labour broking needed to be regulated and the government had tried to balance the competing interests of business and labour, Patterson said.
The use of labour brokers, fixed-term and part-time workers would be much more heavily regulated when the amendments came into effect, which could happen towards the end of the year.
"Firstly, labour-broker workers working for clients who operate in industries falling under bargaining councils, will be entitled to the same terms and conditions of employment that are applicable to the employees employed by the clients in the industry.
"It will not be possible, therefore, for an employer to avoid paying bargaining council minimum wages and benefits through the use of labour brokers," Patterson said.
Secondly, employers using labour brokers on an on-going basis to avoid the responsibility of being the employer, would under the amended act be deemed to be the employer of the workers supplied by the labour broker.
This could only be avoided where the worker was supplied to meet a genuinely temporary need.
Patterson said that the amendments would also mean that labour-brokers deemed to be employers of the client had to be given terms and conditions of employment similar to those of the employer's permanent employees doing similar work.
"We are dealing with a new paradigm," he said, adding that employers needed to determine warranties and liabilities when using labour brokers, and contracts should be "properly looked at".
The proposed amendments to the Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA), which were approved by cabinet in March, had caused controversy due to potential implications for both employers and employees, he said.
Among the most pressing of concerns held by employers were the proposed limitations to ways of changing workplace conditions and the constricted parameters for using fixed-term workers.
"In light of these proposals, businesses face the loss of an important mechanism for changing workplace terms and conditions.
"Furthermore, should the proposed amendments be implemented, new conditions on the employment terms of atypical workers will pose significant challenges for employers," he said.
Patterson said that included in the proposed changes to the LRA was a ban on employers being able to retrench workers where they refused to agree to changes in terms and conditions that were objectively necessary to meet the employer's operational requirements.
"This will make changing workplace terms and conditions a major challenge for employers."
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