The labour relations act requires that consultation must take place when the employer contemplates retrenchment. Dismissal based on operational requirements, s189, retrenchments. If the employer does not have work for you they can retrench you but must follow the correct procedure. The labour relations amendment act 6 of 2014 act was assented to by the president and published in the government gazette no. In bracks no and another v rand water and another 2010 31 ilj 897 lac the labour appeal court lac had an opportunity to provide guidance and clarity for the proper interpretation of section 19112 of the labour relations act 66 of 1995 lra. They must also provide the registrar of labour relations with financial reports, lists of members, changes of addresses, information on the election of its office bearers etc. National labor relations act international labour organization. Congress enacted the national labor relations act nlra in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the u. The labour court has consistently accepted the lifo criterion as fair. Example of a section 189 letter together with a checklist of the procedures and steps. On 18 august 2014, the president of the republic of south africa assented to the labour relations amendment act 6 of 2014 amendment act.
Amendments to section 143 of the labour relations act. Amendments to the labour relations act or other legislation and subsequent board decisions may affect the rights and obligations discussed in this publication. This emplyee has to be dismissed due to be financial reasons as well as someone else has to be employed with other technical abilities. Trade union and labour relations consolidation act 1992, section 189 is up to date with all changes known to be in force on or before 08 april 2020. Employers cannot achieve a fair retrenchment process without following the requirements of the lra as it underlines the constitutional right to fairness. Test to determine substantive fairness in a dismissal for. Section 189a facilitation facilitator regulations 19. Section 189 a applies to all employers with more than 50 employees if. If employees are selected in terms of unfair criteria their dismissals with be considered unfair.
This guideline explains the labour laws contained in the labour relations act. The phrase operational requirements is a broad term referring to economic, technical, structural or similar needs of an employer. Dismissal based on operational requirements, s189 lra. Section 681b affords compensation to any party who suffered damages as a result of any conduct which contributed to any.
Under section 189 small scale retrenchment requires contemplation, notice and information, and consultation period. May 24, 2017 the section 189 retrenchment process in terms of the labour relations act section 189 of the labour relations act lra permits employers to dismiss employees for operational requirements. This morning, it was reported in the media that productivitysa has called for section 189 of the labour relations act lra to be amended. If there is a conflict between the act and this guide, the labour relations act and its. The purpose of this act is to advance economic development and social justice by ful. Dismissals for operational requirements retrenchments. This law regulatesrelations between employers and workers. The labour relations act lra places additional obligations on employers involved in large scale retrenchments. Although crafted in procedural terms the object of section 189 is substantive. Section 198 introduces important new rights for labour broker, contract and parttime workers.
Labour relations act malawi investment and trade centre. In national union of mineworkers v anglo american platinum ltd and others 20 12 bllr 1253 lc the applicant, num, brought an urgent application seeking the reinstatement of its members who were dismissed by the respondent, amplats, for operational requirements pending amplats compliance with ss 189 and 189a of the labour relations act. Trade union and labour relations consolidation act 1992, section 189 is up to date with all changes known to be in force on or before. Portfolio committee on communications, national assembly, briefing by the south african broadcasting corporation sabc board on the implementation of section 189 of the labour relations act. South african labour law regulates the relationship between employers, employees and trade. It established the national labor relations board to oversee elections in which workers could choose whether they wanted union representation and, if so, which specific bargaining unit they preferred. Section 189 of the labour relations act 66 of 1995 lra, as amended, permits an employer to dismiss employees for operational requirements or reasons. The most commonly used and often preferred selection criterion when retrenching employees is the last in first out lifo principle. Section 189 retrenchment process and the employees. Employees can challenge the substantive fairness of the termination of their employment by referring a dispute to the labour court or by engaging in industrial action. Summary of the labour relations amendment act 6 of 2014 elrc.
Dismissal related to operational requirements section 189. The summary is a popular version of the new rights and is aimed at everyone involved. There are changes that may be brought into force at a future date. The date on which the amendments will come into operation is still to be determined but it is expected to be before the end of the year. The firm specializes in commercial, corporate, intellectual property, investment, land and labour law. In a ruling handed down by the commission for conciliation, mediation and arbitration ccma on 29 june 2015 in the matter between assign service pty ltd v krost services and racking pty ltd and another ecel165215 the commissioner ruled on the interpretation of the deeming provision contained in s198a3b of the labour relations act 66 of 1995 lra. The amendment act came into effect on 1 january 2015 and introduces significant changes to the labour relations act 66 of 1995 lra. We are the leading resource for freely available legislation in south africa and are used daily by thousands of professionals and industry leaders. Part a registrar of labour relations the act makes provision for the appointment of a registrar of labour relations. An evaluation of section 681b of the labour relations act. Legal aspects in recruitment and selection johanette rheeder. Trade union and labour relations consolidation act 1992.
That is, section 188 of the lra states that a dismissal is unfair if the employer fails. This booklet is a summary of the new section 198 of the labour relations act lra of 2014. Take our self assessment test to determine your risk profile for coronavirus. Decentralisation and deregulation of labour relations. Incorporation of the protecting a sustainable public sector for future. Section 197 of the labour relations act, no 66 of 1995 lra was enacted to change the common law position, with the effect that an automatic transfer of contracts of employment from the transferring employer previous employer to the acquiring employer new employer now takes place in.
The sociopolitical impact of retrenchments has been most damaging, and concern has been expressed that realistic and viable options to retrenchment are often overlooked as companies hasten to improve the bottom line by simply cutting back on staff compliment. Frequently asked questions labour law, south africa. In the interpretation of section 198a3bi the particular section cannot be interpreted in isolation. Section 32 of the principal act is hereby amended a by the insertion in subsection 3 of the following paragraph after paragraph d. Generally the test for fair and objective criteria will be satisfied by the use of the. What constitutes a benefit by virtue of section 1862 of.
Your new employer will in any event have to apply for a new work permit. Australias 2005 labour law reforms 8 the 2005 act substantially amends the 1996 act. Summary and explanation of the labour law amendments this summary and explanation represents the position after the basic conditions of employment amendment act act 20 of 20 bcea, the labour relations amendment act act 6 of 2014 and the employment equity amendment act act 47 of 20 eea were signed into law by the president. The applicant denies that section 16 of the labour relations act no 66 of 1995 lra applies to the dispute. These are defined as requirements based on economic, technological, structural or similar needs of the employer. Introduction retrenchment is the process by which staff is reduced to cull redundant employees and reduce the wage bill.
In particular, you need to be aware of section 197 which deals with the transfer of the employment contract from the old employer to the new employer. The labour relations act, 2007 an act of parliament to consolidate the law relating to trade unions and trade disputes, to provide for the registration, regulation, management and democratisation of trade unions and employers organisations or federations, to promote sound labour relations through the protection and. In national union of mineworkers v anglo american platinum ltd and others 20 12 bllr 1253 lc the applicant, num, brought an urgent application seeking the reinstatement of its members who were dismissed by the respondent, amplats, for operational requirements pending amplats compliance with ss 189 and 189a of the labour relations act 66 of. Unfair labour practice means any unfair act or omission that arises between an employer and employee involving a unfair conduct by the employer relating to the promotion, demotion, probation excluding disputes about dismissals for a reason relating to. Section 189 what is section 189 of the labour relations act. A take over of an enterprise as a going concern essentially means that the new employer is carrying on. Labour relations act as amended by labour relations amendment act, no 42 of 1996 proclamation, no 66 of 1996 labour relations amendment act, no 127 of 1998 labour relations amendment act, no 12 of 2002 act to change the law governing labour relations and, for that purpose to give effect to section 27 of the constitution. Procedural and substantive unfairness will result in the arbitration by the ccma and further the labour court. This section which sets out the guidelines for retrenchment procedures currently limits the parties who must be consulted to. Where prior to dismissals, the ccma facilitated the.
Provisions of section 197 labour relations act transfer of. Describe all of the facts that you are relying on in making this complaint. This act may be cited as the industrial and labour relations amendment act, 1997, and shall be read as one with the industrial and labour relations act, in this act referred to as the principal act short title cap. Cliffe dekker hofmeyr ccma ruling on the interpretation of.
Recruitment generally entails a process undertaken by a prospective employer, or a recruitment agent who acts on behalf of the prospective employer to attract or invite a candidate to apply for a position, to screen, select, test e. In sa breweries pty ltd v louw 2018 39 ilj 189 lac the court found that there was procedural unfairness when the employer took into account objectively unfair selection. Ruling on the interpretation of section 198 and section 198a of the labour relations act, 66 of 1995. So 1995, c 1, sch a labour relations act, 1995 canlii. Amendments to section 143 of the labour relations act 66 of 1995 and the implications thereof the amended section 1431 of the lra reads as follows. What constitutes a benefit by virtue of section 1862 of the. There have been a significant amounts of dismissals based on companies operational requirements retrenchments over the last few years as well as a definite rise in ccma referrals by employees who allege they have been retrenched. Basic conditions of employment act, s35, s37 and s41. The labour relations amendment act, 6 of 2014 came into effect on 1 january 2015. The labour relations act 66 of 1995 lra codifies the requirements for retrenchments by way of section 189 and 189a. Compensation of up to 12 months of the employees normal remuneration may be. Know your labour relations act western cape government. Editors pick section 188 of the labour relations act, no 66 of 1995 permits an employer to dismiss an employee for reasons related to the employees misconduct.
Your guide to labour law in south africa labour guide. Jan 25, 2016 dismissal related to operational requirements section 189 of the labour relation act view larger image in the past years we have seen employees embarking on nationwide strikes, which meant that there was no operation taking place in most companies due to the nationwide strikes during that period. Section 189 what is section 189 of the labour relations. The supreme court of canada has often noted that freedom of association protects the rights of employees to associate for the meaningful pursuit of collective workplace goals.
Check the date of this guide and ensure that there have been no changes since its publication. Changes that have been made appear in the content and are referenced with annotations. What constitutes a benefit by virtue of section 1862 of the labour relations act 66 of 1995 apollo tyres south africa pty ltd v ccma 20 5 bllr 434 lac. With acts you are guaranteed the latest and most up to date resource for your legislative needs.
Legal aspects in recruitment and selection johanette. The summary is a popular version of the new rights and is aimed at everyone involved in defending or organising such workers. Choose location johannesburg, south africa east london, south africa tba durban, south africa port elizabeth, south africa. Retrenchments can your employer make you reapply for. Ccma labour law amendments resource guide for users march 2016 page 3 table of contents labour relations act 5. Section 189 1 of the lra provides that, before retrenching, employers must consult any person whom the employer is required to consult in terms of the collective agreement. Acts online provides legislation, including amendments and regulations, in an intuitive, online format. Sabinet the interpretation and application of section. Section 189 of the labour relations act lra permits employers to dismiss employees for operational requirements. This act regulates the organisational rights of trade unions and. Throughout this specific section, the act obliges the employer to consult both the affected employees andor union on the. Example of a permanent contract of employment module 4.
Amended labour relations act pdf, document, labour law. The changes to section 198 of the labour relations act 66 of 1995 lra is considered as one of the most significant, as this will deal with the issues regarding temporary employment service or labour brokers as they are more commonly known. Example of a section 189 letter together with a checklist. Section 197 of the labour relations act states the following. Republic of south africa labour protect labour law. The business is mico, with the owner and one employee. I do solemnly swear or solemnly affirm that i am not disqualified under section 22 of the labour relations act, 1995 from acting as a member of a conciliation board and that i will faithfully, truly and impartially, to the best of my knowledge, skill and ability, execute and perform the office of member or chair of the conciliation board. This test was considered to be objective and so the departure from lifo was warranted. Alternatives to retrenchment are employers obliged to. Section 189a of the lra distinguishes between the size of employers and also the. Labour relations act, 66 of 1995 western cape government. Labour law c h a p t e r c h a p t e 6 r introduction. Trade union and labour relations consolidation act 1992, section 189 is up to date with all changes known to be in force on or before 31 march 2020.
Analytical thinking, competent to work at the highest level of most phases of system. Looking at the questions that are asked by employers and employees regarding retrenchments, there clearly seems to be a lack of understanding of the rights of employees in terms of section 189 189 a of the labour relations act as well as the basic conditions of employment act. Retrenchment in terms of section 189a labour guide. In 1995, a new labour relations act lrawas passed by parliament. Where prior to dismissals, the ccma facilitated the retrenchment consultations, must the subsequent. Title amended labour relations act pdf description the labour relations act by the department of labour no. Operational requirements dismissals are governed by section 189 of the labour relations act 66 of 1995 lra. Thus, the purpose of s 189a is to provide employees with a remedy to approach the labour court to set the employer back on track when there is genuine procedural unfairness that goes to the heart of the process. National labor relations act, 1935 the national labor relations act guaranteed the right of workers to collective bargaining.
Section 188 clearly indicates the three grounds on which an employer can dismiss an employee. It is hereby notified that the president has assented to the following act which is hereby published for general information. The test for substantive fairness in retrenchments 11 definition of operational dismissals section 189 of the labour relations act 14 section 189a of the labour relations act 16 chapter 3. Can the new owner of a business dismiss existing employees. In the apollo case the court once again had to determine the content of benefits in terms of section 1862a of the labour relations act 66 of 1995 hereafter the lra. How did the bargaining agent allegedly violate section 20 of the labour relations act. Section 197 of the labour relations act lra requires the new employer, in a takeover as a going concern, to take over all the employees of the old employer.
It governs issues such as the right to join trade unions and employer organisations, and the right to strike and lock out. Some employers are under the impression that retrenching an. To change the law governing labour relations and, for that purpose to give effect to section 27 of the constitution. Test to determine substantive fairness in a dismissal for operational requirements. An arbitration award issued by a commissioner is final and binding and it may be enforced as if it were an order of the labour court in respect of which a writ has been issued. If the board determines that 40 percent or more of the individuals in the bargaining unit proposed in the application for certification appear to be members of the union, the board will direct that a representation vote be taken among the individuals in a voting constituency determined by the board. Labour relations act no 66 of 1995 lra employment equity act no 55 of 1998 eea employee social welfare and benefits unemployment insurance contributions act no 63 of 2001. Retrenchments your guide to labour law in south africa. The 2019 edition of the labour law and employment manual clients will receive free online access to the manual with regular updates until 12 months from date of. The control test focuses on the element of control exercised by the employer over the. Oct 02, 2017 this morning, it was reported in the media that productivitysa has called for section 189 of the labour relations act lra to be amended. Aug 22, 2016 if so, then make sure that you know about and comply with the provisions of the labour relations act.
The labour relations act back to the act bilingual pdf 1. Briefing by sabc board on the implementation of section. In other words, what facts do you rely on in support of your claim that the bargaining agent acted in a manner that was arbitrary, discriminatory or in bad faith in representing you. Dismissal related to operational requirements section 189 of the labour relation act in the past years we have seen employees embarking on nationwide strikes, which meant that there was no operation taking place in most companies due to the nationwide strikes during that period. Extracts from the labour relations act unfair dismissals. Section 198b of the labour relations act and section 29 of the basic conditions of employment act. Section 189 of the labour relations act is applicable and prescribes a joint. These are defined as requirements based on economic. Labour relations amendment act parliament of south africa. Mozlegal mozlegal is a wellestablished and dynamic firm providing legal and business services. Summary and explanation of the labour law amendments.
Employment retrenchment guideline cliffe dekker hofmeyr. Prescribed technical standards and procedures, hr policy public service act, public service regulations, basic conditions of employment act, labour relations act, project management principles, database design. This act may be cited as the labour relations act, 1996, and shall come into operation on such date, as the minister shall appoint by notice published in the gazette. Section 189 of the labour relations act hereinafter called the act relates to the dismissal of employees based on operational reasons and prescribes a very clear procedure to be followed in the event of such retrenchments.
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