On December 17 2010 the minister of labour introduced four bills into the National Assembly:
- the Labour Relations Amendment Bill;
- the Basic Conditions of Employment Amendment Bill;
- the Employment Equity Amendment Bill; and
- the Employment Services Bill 2010.
The Employment Services Bill 2010 is an entirely new piece of legislation. Following public commentary during early 2011, the Department of Labour went back to work on each of these four bills.
On November 2 2012 the minister introduced a significantly different version of the Employment Services Bill into the National Assembly. According to the department, the bill seeks to:
- provide for the establishment of schemes to promote the employment of young jobseekers and other vulnerable persons;
- facilitate the employment of foreign nationals in a manner that gives effect to the right to fair labour practices (under the Constitution) and which does not impact adversely on existing labour standards or the rights and expectations of South African workers;
- provide for the registration and regulation of private employment agencies;
- provide for the establishment of the Employment Services Board;
- provide for the (re)establishment of Productivity South Africa; and
- provide for the establishment of protected employment enterprises.
The bill repeals all provisions of the Skills Development Act 1998 relating to employment services and the establishment of Productivity South Africa, and re-establishes Productivity South Africa under the auspices of the bill.
'Employment services' are defined as a range of services, including:
- advising and counselling workers;
- assessing jobseekers for entry into the labour market;
- education and training;
- referring jobseekers to employers to apply for vacancies or to provide training;
- assisting employers by providing recruitment and placement services; and
- performing the functions of temporary employment services (labour brokers).
Public employment services
The bill delineates between public employment services and private employment agencies. According to the memorandum of objectives, published as an explanatory summary of the bill, public employment services' functions include:
- matching jobseekers with available work opportunities;
- registering jobseekers;
- registering job vacancies and other work opportunities;
- facilitating the placing of jobseekers with employers or in other work opportunities; and
- providing specialised services to assist vulnerable jobseekers including youth, new entrants into the labour market, disabled persons and members of rural communities.
The minister is given the power to establish schemes to:
- promote the employment of young people and other unemployed persons;
- provide opportunities for self employment; and
- establish schemes to minimise retrenchments in protected employment enterprises that are in economic distress.
Private employment agencies
According to the memorandum of objectives, private employment agencies (enterprises that render employment services) may be regulated by the minister after consulting the Employment Services Board, such regulation to include:
- registration of private employment agencies;
- acts that are prohibited by private employment agencies;
- the charging of fees by private employment agencies; and
- the retention of information and confidentiality of information collected.
In essence, private employment agencies must register with the registrar of private employment agencies to be established by the minister.
According to the bill, the functions of Productivity South Africa are to:
- promote a culture of productivity in workplaces;
- develop relevant productivity competencies;
- facilitate and evaluate productivity improvement and competitiveness at work places;
- measure and evaluate productivity in the workplace;
- undertake productivity related research; and
- support initiatives aimed at preventing job losses.
The bill also establishes protected employment enterprises to promote work and employment opportunities for disabled persons whose disability does not allow them to obtain employment in the labour market. Protected employment enterprises are established as a national government component contemplated in Section 7A of the Public Service Act 1994 and must be managed in accordance with the Public Finance Management Act 1999, while the minister must appoint a head of protected employment enterprises to oversee the work of protected employment enterprises. According to the memorandum of objectives, protected employment enterprises are to be managed as viable and sustainable entities that must adapt to the changing needs of people with disabilities.
Unlike the 2010 bill, which sought to legislate public employment services directly, private employment agencies and the re-establishment of Productivity South Africa, the 2012 bill is, on the whole, a framework to be fleshed out by the minister in consultation with the Employment Services Board, established under the bill. The Employment Services Board will be made up of an independent chairperson, three state nominees and three National Economic Development and Labour Council nominees each from organised labour, organised business and organisations of community and development interests. The board's functions are to advise the minister on matters requiring the minister to issue regulations, devise schemes or establish criteria in order to flesh out the content of the bill.
The bill also gives special attention to the employment of foreign nationals. If the bill is promulgated, these provisions must be read in conjunction with the Immigration Act 2002.
The Labour Court (and the Labour Appeal Court) have exclusive jurisdiction in respect of all matters arising from the bill, excluding the prosecution of criminal offences. Compliance with the bill is to be policed by the monitoring and enforcement provisions of the Basic Conditions of Employment Act, and the Labour Court may impose fines not exceeding R50,000 if an employer contravenes the provisions of the bill. The bill also sets out a series of offences, such as:
- attempting to obtain any prescribed document by means of fraud or false pretences;
- furnishing false information in any prescribed document knowing that it is false;
- obstructing or attempting to influence improperly a person who is performing a function in terms of the bill; and
- operating an unregistered private employment agency or one that is in violation of its registration.
The Labour Court may review any administrative action taken in terms of the bill on any grounds "permissible in law" – namely, the Promotion of Administrative Justice Act 2000.
What, if any, real impact will the bill have on the labour market should it be promulgated as law? It is difficult to state at this stage, since so many of the endeavours under the bill will be given content only once the minister has consulted the Employment Services Board and develops schemes, establishes the prescribed criteria or develops regulations in terms of the bill. One aspect where tangible impact will be seen is the necessity for temporary employment services to register as private employment agencies and to hold a registration certificate to that effect, failing which, such temporary employment service (designated a private employment agency under the bill) commits an offence. A private employment agency will also be subject to a maximum fine of R50,000, should it fail to display its certificate of registration conspicuously at the premises where it operates.
The Portfolio Committee on Labour called for interested parties and stakeholders to submit written comments on the bill by no later than December 14 2012 and it is expected that parliamentary hearings will take place in the first quarter of 2013.
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