Workplace amendment bills worth scrutinising

23 October 2020

As we come closer to the end of the National State of Disaster, which has been extended to November 15, we note there are two new labour bills waiting to be debated by the various parliamentary structures and the public.

First, there is the Compensation for Occupational Injuries and Diseases Amendment Bill under Government Gazette 43658 and, second, there is the Employment Equity Amendment Bill (B14-2020).

Both amendment bills are far reaching and therefore of interest to any member of the public or institution interested in labour legislation, in order to read, study and give input.

In addition to the two amendment bills, there is an interesting document put out by the Department of Health titled “Covid-19 Walk-Through Risk Assessment”. This is a document prepared by the Risk Assessment Group within the Occupational Health and Safety Workstream of the National Department of Health.

It is a useful document that is available to the public. The document is the tool used by the occupational health and safety professionals at workplaces to assess the potential risk of exposure and the control measures. It provides recommendations for their management.

The objectives of the Walk-Through Risk Assessment is to identify and assess the potential risk of exposure to Covid-19 at workplaces; to identify control measures (or the absence of control measures) and assess the effectiveness to prevent exposure and, finally, to inform the management of the risk of potential exposure to Covid-19 and additional controls that might be required.

In particular, the inspectorate will immediately assess entry points to the workplace, change house facilities, on-site canteen and similar dining areas, waiting areas, evacuation and gathering places and, obviously, workspaces.

It is highly recommended that every workplace, whether they employ one or more employees, has a look at the document to ensure that they don’t fall foul of our law and risk liability and/or closure of their businesses.

The Occupational Injuries Amendment Bill is good in certain instances in that it finally adds domestic workers under the umbrella of employees.

It is also shocking to read that there might not be accident cover for employees travelling to and from work.

The only cover they could possibly look to is the Road Accident Fund. The Road Accident Fund is dysfunctional and appears to be almost bankrupt.ADVERTISING

Happily, the bill does provide for the commissioner to perform certain functions that were performed by the director-general and does provide for matters pertaining to the rehabilitation, reintegration and return to work of occupationally injured and diseased employees.

The commissioner can also review pension claims or awards and can provide for administrative penalties. There might be better control allowing to regulate compliance and enforcement.

A very important piece of legislation is the Employment Equity Legislation. Therefore the bill to change the legislation will affect every workplace and possibly every employee.

The bill does seek to give the minister of employment and labour powers to identify national economic sectors and set numerical targets for the sectors.

The bill tries to ensure the equitable representation of suitably qualified people from designated groups at all occupational levels in the workplace.

The results might be devastating as these targets (numerical targets) will be set by the minister and not by Parliament and certainly not by the various sectors themselves.

I would go so far as to suggest that this might retard the growth in employment and will certainly act as a hand brake on business development.

Likewise, any employer looking to conduct business with the state must be compliant with the sectoral targets as set out by the minister.

It is then imagined that there will be a whole lot more unnecessary red tape for employers and will also, to a large degree, impact on all employment equity claims.

It should be understood we have been losing the ability to create employment as can be seen from the past 10 quarters. During the Covid-19 lockdown, we’ve probably retrenched about four million people, bringing the amount of employed people to just less than 14 million.

Recent data supplied by Statistics SA shows we’ve lost jobs across all industries.

This is not only because economic activity ground to a halt during the strict levels of lockdown but also because of various structures within our labour legislation.

Even the informal sector lost about 700 000 jobs and private households lost more than 300 000.

Strangely, agriculture lost 66 000 jobs, despite the need for the produce.

Sadly, Employment Equity legislation does not seem to have improved the inequality in South Africa.

The legislation is more than 20 years old yet the disparities exist and there is a lack of transformation in the workforce. We understand that white South Africans occupy 65% of top management positions. There must be some way in which we can address the gross underrepresentation of black people, women and persons with disabilities.

Clearly, this legislation hasn’t worked. We are going to need to relook at the structure in order to level the playing field.

The suggested amendment has a long road to travel and the public will be called on for input.

The extremely good news is we are aware that small business is the engine room for job creation of the future.

One of the factors we must all support in the amendment is the fact that the bill calls for the reducing of the regulatory burden on small employers in relation to regulatory provisions dealing with the implementation of the Act.

The amendment would mean that only employers with 50 employees and more will be designated employers and will be required to report on the employment equity targets.

There are other sections in that legislation which should be supported, in that they have suggested that designated employers must consult only a representative trade union representing members at the workplace.

It is also to be welcomed that the functions of the Employment Conditions Commission will hand over most of its functions to the National Minimum Wage Commission.

The National Minimum Wage Commission has a big task ahead of it, such as advising the minister on sectoral determinations and any matter concerning the Basic Conditions of Employment Act.

It is always problematic when we try to introduce a one-size-fits-all approach in any legislation.

Our economy has taken an extremely bad knock and we all want to ensure that as many jobs as possible are created over the next few years, to try to make up for the horrific retrenchments we are experiencing.

* Michael Bagraim is a labour lawyer. He can be contacted at michael@bagraims.co.za.

Source: IOL at https://www.iol.co.za/capeargus/opinion/workplace-amendment-bills-worth-scrutinising-c8072984-0c33-4f3c-87e9-79f5559c3cd7?fbclid=IwAR1kiSkyqp8fK-OoMlg9U9rVgLq5nMgqj0LwAl2kGyYPjr35pPLYsvtA_cA