Dismissal based on an employers operational requirements as per. The intention of this section is primarily to bring disputing parties together to engage on a matter in order to find resolution, and at the same time to try and prevent any protest action. 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. Acts online provides legislation, including amendments and regulations, in an intuitive, online format. Amended by labour relations act 66 of 1995 from 28 apr 2004. We are the leading resource for freely available legislation in south africa and are used daily by thousands of professionals and industry leaders. Section 189a1 applies to employers that employ 50 or more employees and intend to.
Employment retrenchment guideline cliffe dekker hofmeyr. The labour relations act requires that consultation must take place when the employer contemplates retrenchment. What constitutes a benefit by virtue of section 1862 of. Cosatu was of the opinion that the 12 month cap period should be removed. Identifying consulting parties in terms of section 1891 of the lra. Amended by intelligence services act 65 of 2002 20 feb 2003. Retrenchment in south africa horizon research publishing.
Algorax1 and beyond find, read and cite all the research you need on researchgate. 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 14 may 2020. Part acommission for conciliation, mediation and arbitration 112. 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. Pdf business restructuring and operational requirements. Amended by electronic communications security pty ltd act 68 of 2002 from 28 feb 2003. This morning, it was reported in the media that productivitysa has called for section 189 of the labour relations act lra to be amended. Before effecting such dismissals, however, the lra places. Rights of employees in terms of section 189 and 189a module 6. Labour law whereas section 189a of the lra, regulate the dismissal for. Employers are often uncertain as to who they should consult with when embarking on a restructuring exercise in terms of section 189 of the labour relations act 66 of 1995, as amended the lra. Section 189 of the labour relations act 66 of 1995 lra, as amended, permits an employer to dismiss employees for operational requirements or reasons. Section 189 of the labour relations act lra permits employers to dismiss employees for operational requirements. Trade union and labour relations consolidation act 1992.
Changes that have been made appear in the content and are referenced with annotations. 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. In plain language the company must advance some plausible reason for the proposed dismissals which may be anything from a need to curtail costs to a need to reorganize. So 1995, c 1, sch a labour relations act, 1995 canlii. It has been held that the prohibition of deductions from an employees remuneration in terms of section 19 of the bcea, does not preclude an employer from imposing a penalty of suspension without pay. The end of the year is fast approaching and many students are preparing to enter the workplace at the start of 2017. Labour law south africa expert articles labour law. Provisions of section 197 labour relations act transfer.
Check the date of this guide and ensure that there have been no changes since its publication. When does s189a of the lra apply to a retrenchment process. Section 189 retrenchment process and the employees. On 18 august 2014, the president of the republic of south africa assented to the labour relations amendment act 6 of 2014 amendment act. Understand how the labour relations act affects you in the. Retrenchment consultation and the labour relations act 66. Albutt v centre for the study of violence and reconciliation and others 2010 3 sa.
This section applies to employers employing more than 50 employees if. It governs issues such as the right to join trade unions and employer organisations, and the right to strike and lock out. The question to be answered was whether the commission for conciliation mediation and arbitration ccma has jurisdiction to hear. Section 1941 this section deals with the removal of the cap on compensation. Section 189a of the labour relations act 66 of 1995. Establishment of commission for conciliation, mediation and arbitration 1. Section 189 of the labour relations act, 66 of 1995 as amended, amplified. Labour relations act, no 66 of 1995 lra, an employer must consult with. This section which sets out the guidelines for retrenchment procedures currently limits the parties who must be consulted to. The related section in the basic conditions of employment act is section 189a which is specifically applicable to employers who retrench more than 50 staff members. Your guide to labour law in south africa labour guide. To change the law governing labour relations and, for that purpose to give effect to section 27 of the constitution.
This law regulatesrelations between employers and workers. If there is a conflict between the act and this guide, the labour relations act and its. Section 189 retrenchment process and the employees proposals in the avoidance andor postponement of retrenchments. Pdf automatically unfair and operational requirement dismissals. The labour relations act by the department of labour no. In a succinct award, the arbitrator reached the following conclusions. 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. These are defined as requirements based on economic, technological, structural or similar needs of the employer. Depending on various factors, the consultation process could last several months and as a result, identifying the correct party. There are changes that may be brought into force at a future date. Section 189a1 applies to employers that employ 50 or more employees and intend to retrench. Labour relations act, basic conditions of employment act.
Section 23 of the labour relations act, 1995 hereinafter referred to as the. The arbitration award 4 on 10 july 2009, the applicant. Share on twitter share on linkedin share via whatsapp print pdf. The labour court has held that suspension without pay is a permissible disciplinary penalty under appropriate circumstances. An employer who employs 50 or less employees are subject to the process set out in section 189 of the lra, which. Labour relations amendment bill ms seftel dealt with the outstanding issues of the labour relations act and in particular, the departments response to submissions made at the public hearing. Summary and explanation of the labour law amendments. The introduction of subclause p will allow the minister to also. Labour relations act 66 of 1995 south african government. If so, then make sure that you know about and comply with the provisions of the labour relations act. 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.
Section 197 of the labour relations act states the following. Example of a section 189 letter together with a checklist. Area of jurisdiction and offices of commission 115. Labour relations amendment act 12 of 2002 intelligence services act 65 of 2002 electronic communications security pty ltd act 68 of 2002 general intelligence laws amendment act 52 of 2003 prevention and combating of corrupt activities act 12 of 2004 act to change the law governing labour relations and, for that purpose to give effect to. Extracts from the labour relations act dispute resolution. 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. Find, read and cite all the research you need on researchgate. Section 189 dismissals for operational requirements of the labour relations act. The phrase operational requirements is a broad term referring to economic, technical, structural or similar needs of an employer. However, the lras provisions make the implementation of retrenchment, especially largescale retrenchments, extremely difficult. Dismissal based on operational requirements, s189 lra. With acts you are guaranteed the latest and most up to date resource for your legislative needs. Section 189 what is section 189 of the labour relations act. Section 211 states that any registered trade union may inform an employer in writing should he or she wish to exercise one or.
Section 198 introduces important new rights for labour broker, contract and parttime workers. Amended by general intelligence laws amendment act 52 of 2003 from 28 feb 2003. Introduction to dismissals for operational requirements. In 1995, a new labour relations act lrawas passed by parliament. 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. Due to the sabcs and certain mining companies announcements in 2018 that extensive retrenchment processes would be rolled out, this article aims at discussing retrenchments on a major scale.
Pdf on jan 1, 2005, darcy du toit and others published business. The impacts of these two amendments will be discussed in detail when dealing with the labour relations amendment act. Section 32 of the principal act is hereby amended a by the insertion in subsection 3 of the following paragraph after paragraph d. A registered trade union who seeks organisational rights at the workplace needs to comply with section 21 of the labour relations act lra. Section 189 what is section 189 of the labour relations. Section 77 refers to section 77 of the labour relations act which speaks to protest action to promote or defend socioeconomic interests of workers. Section 189a applies to employers with more than 50 employees and imposes onerous conditions. Retrenchment is a specific legal process governed by sections 189 and 189a of the labour relations act.
Labour law south africa expert articles on ccma, constructive dismissal, unfair labour practice, labour court cases, disciplinary hearing, retrenchments and best practices for both employers and employees in labour relations act and amendments. Rights of employees in terms of section 189 and 189a of the labour. Application of section 189 and section 189a of the labour relations act 66 of 1995 as amended by mawethu siyabulela rune submitted in partial fulfilment of the requirements for the degree of magister legum in the faculty of law at the nelson mandela metropolitan university supervisor. In addition, an employer must in terms of section 189 of the lra of 1995. It is hereby notified that the president has assented to the following act which is hereby published for general information.
Section 189 of the lra stipulates procedures to be followed by an. Amendments to the labour relations act or other legislation and subsequent board decisions may affect the rights and obligations discussed in this publication. 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. This booklet is a summary of the new section 198 of the labour relations act lra of 2014. Alternatives to retrenchment are employers obliged to. The summary is a popular version of the new rights and is aimed at everyone involved. Employers have tried to broaden the ambit of this form. In terms of section 1872b of the labour relations act, act 66 of 1995 the lra a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity. 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. Section 2 of the labour relations act defines operational requirements as requirements based on the economic, technological, structural, or similar needs of an employer. The amendment act came into effect on 1 january 2015 and introduces significant changes to the labour relations act 66 of 1995 lra. Labour law whereas section 189a of the lra, regulate the dismissal for operational requirements where it involves more than 10 employees. Operational requirements are defined under the labour relations act lra as.
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