Government has passed new amendments to the Labour Relations Act. A date still has to be set for when they will become law. In the meantime, Numsa will train all its organisers on the changes.
In this piece, one of Numsa's legal eagles, Norma Craven , takes us through the advantages and disadvantages of these new amendments. Her main message is: "As soon as your company gives you notice that it wants to retrench, contact your organiser immediately." There are certain time limits that have to be kept to and if you delay in contacting your local organiser, you may not get the benefits of these amendments.
Current situation
Easy for employers to pay lip-service to the idea of consultation Where there is a workplace forum there is no requirement to consult with trade unions. Information often not made available because the employer claims it is not relevant. Consultations often ad hoc and difficult to prove what the employer did after the event. Workers do not have the riqht to strike. Employers can sue unions if workers go 0 strike only have to consult with unions over retrenchments
Amendment
Section 189 is amended and a new section 189A is added
Although the word consultation is still the order of the day there is a stronger requirement of the employer to consult The employer must now in writing invite the other consulting party to consultations Where there is a workplace forum the employer must now also consult with any registered trade union whose members are affected. Where there is a dispute about disclosure of information the onus of proof has moved – now the employer must prove that the information is not relevant for the purposes for which it is sought. If any representations are made by the trade union in consultation, in writing, then the employer must reply in writing. In terms of the new section 189A the following applies: 6.1 in companies with more than 50 workers, workers have the right to strike if more than 50 people or 10% of the workforce is affected. 6.2 If the employer employs up to 200 workers this section applies if at least 10 employees are affected. The section also applies if the number to be retrenched, added to those retrenched in the 12 months prior to a notice in terms 5189(3) equals the numbers in 6.1 and 6.2 above The union can approach the court for ac order compelling the employer to comply with a fair procedure. In companies where the thresholds are met The CCMA can facilitate Workers must follow the normal dispute procedure before striking Unions can demand arbitration if the employer refuses to provide information about the retrenchment Workers in other plants linked to the retrenching company can go on secondary strike on 14 days notice.
Advantages:
Threshold reduced to 50 workers or 10% of the workforce and in the case of an employer with up to 200 employers, it is reduced to 10 employees for section 189A to kick-in Facilitator could help the process Onus now on the employer to show that information requested is not relevant The threat of action could force employers to engage more meaningfully . S189A operates if the number to be retrenched added to retrenchments in the previous 12 months equals 50 or 10%, (or 10 as set out in 1. above, if the workplace has up to 200 workers). The access to the court on an urgent basis up to 30 days after the notice of retrenchment has been given operates even if the workers have already been retrenched Even if the court is not approached on an urgent basis, any case brought in terms of the 30 day amendment must be heard on an expedited basis The requirement that employers reply in writing to any written from the union should help in cases where disputes arise as to what actually happened in consultation meetings.
Disadvantages:
All companies with less than 50 workers are excluded from these new procedures including strike action. Companies with 50 or more workers are excluded if the numbers of workers to be retrenched are less than 10% of the workforce or in a workplace with up to 200 workers – less than 10 workers. The wording in the amendment is "if an employer contemplates" – this could see a situation where an employer only contemplates a certain number less than the thresholds but then retrenches more or one where he contemplates more than the threshold but retrenches less. There could be confusion over the process to be followed. The more technical and legal process takes workers away from their source of power – collective action Workers can only strike once they have been given notice of retrenchment when their morale and collective power is at its lowest. Dismissals on operational grounds may now only be challenged in the Labour Court in the normal course for substantive reasons If procedural fairness in terms of s189A can only be challenged in terms of an urgent or expedited application, smaller unions are going to find it very difficult to afford to challenge retrenchments procedurally. An employer with 200 workers could retrench 9 employees and then 6 months later retrench 2 employees. The 9 would not have the right to strike whilst whilst the two employees would. Organisers and shop stewards must be- clued up to ensure that procedural disputes are brought to the regional office or Head Office – there is no second bite at the cherry in the normal course.