There are a number of consultants and other organisations preaching that the current Bills that were published in December, are going to be the legislation in the near future. Some of these organisations have gone as far as to say this legislation will be promulgated by June this year. It has been publicly documented by the Department of Labour, President Zuma and the Minister of the Department of Labour that these Bills are draft and that negotiations must take place at NEDLAC in respect of these Bills.

It has further been widely stated in the public participation hearings by the Department of Labour that these Bills would look very different in their final form. Finally after the negotiations at NEDLAC are completed the negotiated positions will have to be submitted to Cabinet for Cabinet’s consideration. Cabinet has said that these Bills will be interrogated.

It is irresponsible for organistions to represent that these Bills are the final word. There is a formal negotiating process under way and parties are already indicating areas of compromise.

In respect of the timing of these Bills, it should be noted that they cannot be published in the first six months of this year. It is further highly unlikely they could be published in the second six months of this year given the set timeframes for formal presentation to Cabinet and the
current negotiating framework. The first time these Bills could reasonably be expected to be published would be the first quarter of next year – 2012.

There are about ten Constitutional challenges to these Bills. If the Bills were to come out in any format which resembles the current format, there would still be Constitutional court challenges to those provisions. In this scenario Government would not be able to enact the disputed Bills into law. It is our strong advice to all employers that they should continue to support a-typical forms of employment. There are myths and misinterpretations being presented to employers that are far from the common legal interpretation even to the existing Bills. It is a myth to think that there will not be a differential between fixed term contract, labour broking employees and permanent employees within the work place. International models indicate 30% flexible workforce within the labour market and clearly there will always be a differential in pay and
benefits for that 30%, just as there is in all jurisdictions throughout the workforce.

CAPES negotiators are close to the source of what is happening and will be running a series of public programmes in June / July 2011 to inform the public of developments. Those programmes will be substantially discounted to the public. It is our strong advice that you wait for these programmes if you really want to understand what is going on. We make an appeal to employers to contact any of the CAPES representatives or association offices if you require further detail and knowledge in this regard.

Johnny Goldberg