Addressing non-compliance with the BCEA – how the proposed amendments seek to address the problem

Sep 6, 2012

Articles

Media reports suggest that that the proposed amendments to labour legislation, including the BCEA, have not been received well. Are the concerns justified? We believe that some are, but in the main, we believe that there has also been an emotional over-reaction to some of the proposals, based perhaps on a poor reading of the proposals. The major amendments to both the BCEA and LRA are aimed at combating abuses that have arisen over the years, particularly in connection with the use of temporary labour and labour brokers but also failures to comply with the provisions of the BCEA and sectoral determinations issued in terms of it. The main changes to the BCEA deal with the strengthening of provisions covering child labour (to comply with our international obligations) and strengthening the hand of the Department of Labour when it comes to enforcement of compliance.

Chapter 10 of the BCEA deals with enforcement of the Act by labour inspectors. The latter
have wide powers, e.g., powers of entry, to question and inspect, to secure undertakings,
issue compliance orders; consider objections and appeals, and applications to the Labour
Court. The enforcement provisions have proven to be time consuming and open to technical
challenges by recalcitrant employers. This has employees vulnerable and dependent upon
the effectiveness of the labour inspectors’ ability to address employers’ non-compliance with
the BCEA.

While the overall framework for enforcement is maintained, the proposed amendments have
as their main objective the fast tracking of enforcement. The current law stipulates that the
labour inspector, who has reasonable grounds to believe that an employer has not complied
with any provision of the BCEA, must endeavour to secure a written undertaking by the
employer to comply. The written undertaking could be obtained by arranging to meet with
the employer or by serving a document on the employer. Only if the employer fails to comply
within a given time frame, can a compliance order be issued. The employer still has an
opportunity to object and appeal against such an order to the Director-General of the
Department of Labour. If the employer’s objections are rejected, the D-G can approach the
Labour Court for an order compelling compliance.

The existing procedure is very time consuming, and the employer can delay the process
even more by not cooperating with the labour inspector. If the proposed amendments are
enacted, labour inspectors will be able to exercise their discretion to immediately issue a
compliance order instead of an undertaking to comply.

If an employer fails to comply with a written undertaking that it has given, the Department of
Labour will be able to apply directly to the Labour Court to enforce compliance with the
undertaking. The current section 69 of the BCEA will be amended to provide that a
compliance order may specify the date by which the employer must make any
representations it wishes to make as to why it is not in breach of the BCEA and which the
Department of Labour will apply to the Labour Court to have the order made into a court
order if the employer does not comply with the order.

The proposed amendments will speed up the process of enforcement to a great extent,
strengthening the Department of Labour’s powers and removing all accidental opportunities
for habitual non-compliance and unnecessary delays in enforcement. This is done whilst
allowing the employer with adequate opportunity to state its case in representations to the
Labour Court. The further proposed repeals of sections 71 and 72, will remove the
employer’s current right to make objections to the Director-General concerning a compliance
order. Any objections that an employer has to a compliance order, that are contested by the
Department of Labour will now be adjudicated by the Labour Court. This might dissuade
employers from objecting to compliance order merely for purposes of delaying its final
enforcement.

The proposed changes discussed above will undoubtedly provide more and better protection
to the most vulnerable workers. This must be welcomed. However, the proposed
compliance mechanisms would require the Department of Labour to be sufficiently and
competently staffed to ensure that it issues defensible compliance orders as losses in the
Labour Court will merely worsen current levels of non-compliance.
For employers, the amendments mean that they would need to ensure that they adhere to
the provisions of the BCEA and that, in the event of alleged non-compliance, they engage
with the Department of Labour to establish if and to what extent non-compliance might have
taken place. All in all, good relations with the Department will be beneficial.

Authors: Barney Jordaan and Andrea de Jongh
September 2012

This information is published for general information purposes and is not intended to constitute legal advice and should not be construed as such. Specialist legal advice should always be sought in relation to any particular situation. Maserumule will accept no responsibility for any actions taken or not taken on the basis of this publication. Consent must be obtained from Maserumule before the information provided herein is reproduced in any way. No person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against Maserumule and/or any of its personnel.

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