Two of NUMSA's National Legal Officers, Norma Craven and David Cartwright recently presented an introductory workshop around the newly amended Labour Relations Act at the Tembisa Cosatu Local. The meeting was attended by around 50 workers, most of them shop stewards. Although time was short, there was a lively discussion around the issues that arise on a daily basis on the shop floor. Below we reproduce some of the questions and answers that were given to shop stewards.
Employers deny workers their rights by claiming that they are either temporary or 'casuals'. What can we do?
Temporary workers and so-called casuals have the same rights as permanent employees in terms of the Act. The Basic Conditions of Employment Act for instance only excludes employees who work for 24 hours or less per month.
Neither can employers make workers sign contracts stating that they are independent contractors when they clearly are employees. You can tell if a worker is an employee or an independent contractor by asking these questions:
Does the employee/independent contractor:
work under supervision? wear uniform? have to work set hours or days?
Is the employee/independent contractor an integral part of the main business?
If the answer to all these questions is "yes", then there is a good chance that the court will find that the worker is an "employee".
In terms of the new amendments on retrenchments, when do the consultations actually start?
Shop stewards are often the first comrades to be approached at the beginning of a retrenchment exercise. But the consultation proper, whether in terms of section 189 or 189A, only commences when the employer gives notice in writing.
When can strikes over retrenchment take place?
Strikes can only happen in terms of s189A and after the termination notices have been given and only on substantive issues.
Often this will mean that striking is not an option, particularly in smaller workplaces.
Some of the changes to retrenchment will benefit workers. Amongst these are that if you request information, the employer must now prove that it is irrelevant, that all matters put in writing by a union must be replied to in writing by the employer.
The new process for procedural disputes in terms of s189A allows for employees to be reinstated, even pending a fair procedure. This was not possible in the old Act and is still not a possibility in terms of s189.
What happens when a business is transferred as a going concern?
There must be an agreement about which employer – old or new – would pay any outstanding monies including retrenchment, should the new employer close down within 12 months.
But there could be a problem if any of these undertakings were made by the old employer and then he could not be found.