RECOURSE TO THE CCMA AND THE JURISDICTION OF LABOUR COURT IN TERMS OF THE LABOUR RELATIONS AMENDMENT BILL
The Labour Department has published four Bills with a view of increasing the protection granted to employees in the employer – employee relationship.
These four Bills are:
- The Labour Relations Amendment Bill;
- The Basic Conditions of Employment Amendment Bill;
- The Employment Equity Amendment Bill; and
- The Employment Services Bill.
The Labour Relations Amendment Bill aims to provide more protection to certain employees than to others, causing the current chasm between blue and white collar workers to increase.
In terms of the proposed Amendment Bill on the Labour Relations Act, senior and managerial employees will lose the recourse to the CCMA (Commission for Conciliation, Mediation and Arbitration) which is currently available to them.
The relevant clause reads as follows:
“An employee earning in excess of an amount determined by the Minister by notice in the Gazette, may not refer labour disputes in respect of the provisions of Section 185 (Unfair Dismissals and Unfair Labour Practices), Section 186, Section 188 (Unfair Dismissals other than Automatically Unfair Dismissals) Section 189 and Section 189A (Dismissals based on Operational Requirements), and Section 197 (Transfer of a contract of employment where the business is sold as a going concern).
Section 187 (automatically unfair dismissals) is not affected as it already falls within the Labour Court’s jurisdiction and cannot be referred to the CCMA.
The Explanatory Memorandum accompanying the Bill reasons that the referrals to the CCMA by vulnerable employees will be more expeditiously dealt with once employees who can approach the courts have been removed from the CCMA’s scope.
This is in line with the Labour Department’s current policy to only assist employees to pursue their unpaid salaries to a cap of R 12 000.00. Thus, should you earn more than R 12 000 per month, you must approach a court in order to claim any unpaid monies (in terms of your salary) due to you by your employer.
The Bill further proposes that the Labour Court be granted full and exclusive jurisdiction over labour matters.
This implies that should you be a senior or managerial employee, or earn more that the set amount to be announced, any labour disputes must be referred to the Labour Court for adjudication.
Whilst lawyers will in part welcome dispute resolution before a more competent forum it is hard to imagine how the Labour Court will cope with the increased case load.
The Bills are controversial and we believe that there will still be numerous changes in order to provide all employees with the necessary legislative protection.