New amendments in South Africa labour law

1. SEXUAL HARRASMENT IN THE WORKPLACE

The scope of sexual harassment legislation has expanded to include psychological abuse and cyberbullying in the workplace. This comprehensive definition necessitates an update of company sexual harassment policies to address offences such as offensive conduct, hostile teasing, and discriminatory language.

The CCMA has further published an Amended Code of Good Practice on how to handle sexual harassment in the workplace. The code of good practice clearly sets out the process and procedure as well as what can be classified as sexual harassment and who can commit these acts in the workplace.

2. POPI ACT/PAIA ACT

3. ADJUSTED EARINGS THRESHOLD

Employees earning above the earnings threshold as from 1 April 2024 which is the amount of R 21 197,64 per month are excluded from certain sections of the Basic Conditions of Employment Act. This includes ordinary hours of work, overtime, compressed working weeks, and more. Employers need to negotiate these conditions individually during contract negotiations.

The effect of the earnings threshold is that the limitations, protections or the right to additional pay afforded by certain provisions of the BCEA, do not apply to employees earning in excess of the new threshold. These provisions are:

• section 9 (hours of work)
• section 10 (overtime)
• section 11 (compressed working week)
• section 12 (averaging of hours)
• section 14 (meal intervals)
• section 15 (daily and weekly rest periods)
• section 16 (pay for work on Sundays)
• section 17 (2) (night work), and
• section 18 (3) (public holidays on which the employee would not ordinarily work).

4. AMENDMENTS TO THE UNEMPLOYMENT INSURANCE FUND (UIF)

The Unemployment Insurance Act has been amended to increase UIF benefits from 238 to 365 days. Public servants are now included and covered under the UIF in the event of a dismissal. Workers will also observe a reduced credit cycle that is required to be eligible to claim UIF. The amendment also provides for the extension of the unemployment insurance benefits to learners who are undergoing learnership training and civil servants. The amendment was made to improve service delivery by the Unemployment Insurance Fund (UIF) and deliver increased access and benefits for hundreds of thousands of retrenched and dismissed workers.

5. EMPLOYMENT EQUITY ACT

6. AMENDED CCMA RULES

• Compliance with data protection legislation, such as the Protection of Personal Information Act 4 of 2013 (POPIA).
• Modes of service and filing.
•  Condonation.
•  Postponements.
•  Picketing rules.

a). Compliance with data protection legislation, such as the Protection of Personal Information Act 4 of 2013 (POPIA).

b). Modes of service and filing

A significant amendment throughout the Rules is the removal of fax as an accepted form of filing. Rule 2(3) and Rule 7(2) have been amended to reflect this change.

The CCMA’s official electronic referral online portals are now the preferred method for communication.

These amendments are reflected in various rules. For one, parties may apply for condonation under Rule 9(2A) on the online portals. Parties may also now refer a dispute for conciliation and arbitration on the online portals, under Rules 10(1) and 18(1), respectively.

Previously, if all parties agreed to a postponement seven days before a hearing, the CCMA was under an obligation to postpone the proceedings. The word “must” in Rule 23(2) has now been changed to “may” to reflect that “The Commission may postpone an arbitration without the parties appearing”. In addition, Rule 23(5) has been added to the Rules, which confirms that “There is no right to postponement.”

This signals that securing postponements in the CCMA are going to be more difficult in future.

e). Picketing Rules

Rule 13(1A) brings the issue of picketing rules in line with the law and provides that picketing rules must first be established before a certificate of non-resolution can be issued, unless a signed picketing agreement is provided to the CCMA at the conciliation.

Additionally, Rule 31A now prescribes the process to be followed in applying for urgent picketing rules or the determination of disputes relating to them. The section relates to applications for picketing rules in terms of section 69(6B), disputes relating to picketing agreements and disputes concerning section 69(8) of the Labour Relations Act 66 of 1995 (LRA). Importantly, unless agreed otherwise by the parties, the CCMA must set down the application within two days of receipt of the application.

Prior to the amendments to the Rules, the old Rule 3(2) provided that when calculating time periods, the last day must be excluded if it falls on a Saturday, Sunday, public holiday, or the period between 16 December and 7 January. That part of the rule which referred to the period between 16 December and 7 January has now been removed in the amendments to the Rules.

This removal also suggests that the CCMA may now continue to schedule matters in the period between 16 December and 7 January for processes.

Rule 30(1) now obliges the Commissioner to establish the reason for non-attendance. If there is a good reason for absence, only then will the Commissioner reschedule. The referral will not be dismissed as was the case previously. This was the result of a change subsequent to a Labour Court judgment which gave rise to removals from the roll and not a dismissal of the claim.

Rule 31C now prescribes the process to be followed for a request to have an arbitration re-enrolled. A party may now submit a request for re-enrolment within 14 days of becoming aware that the matter has been removed from the roll. The rule also provides for the other party to oppose within seven days from receipt of the request for re-enrolment. This is helpful as there has been much uncertainty around opposition of the last period.