South Africa's Labour Relations Amendment Act and how it applies to the aviation sector

According to Johan Botes, Director in the Employment practice at Cliffe Dekker Hofmeyr, (pictured right) the LRAA signals a move by government to streamline the country’s labour environment and has required that South African businesses, including those in the aviation sector, adjust the way they have traditionally employed and managed staff in their organisations. 

Discussing some key features of the LRAA that pertain to the aviation sector, Botes notes that the Act responds to amongst other issues, outsourcing via a Temporary Employment Service, a common practice in the aviation sector.
"The LRAA seeks to more actively regulate non-standard employment (fixed-term contract employees and staff employed through a labour broker). Employers making use of seasonal workers, employing staff through labour brokers or making extensive use of fixed-term employees should pay careful attention to the various amendments that will now invite closer scrutiny of employment practices.
In terms of s198B of the Act, an employee on a fixed-term contract for a period in excess of three months may not be treated less favourably than an employee employed on a permanent basis performing the same or similar work, unless there is a justifiable reason for the differential treatment. The absence of such a valid reason will have the effect that the employee shall be deemed to have been employed on an open-ended or indefinite contract.
“The amendments are primarily intended to limit the use of these employees to true short-term contracts (three months or less; to replace another employee who is temporarily absent; or in categories of employment lawfully characterised as suitable for such employees). The underlying principle in the proposed s198B is justifiability. Employers must be able to justify fixing the duration of an employment contract. Failure to abide by the limitations will result in the employees becoming permanent employees (fixed term employees), or being deemed to be employees of the client (TES employees),” Botes notes.
The LRAA also streamlines the procedure to be followed when reviewing CCMA arbitration awards and further provides that employees have the right to picket at a place controlled by someone other than their employer, provided that person has a say in the establishment of the picketing rules.
“Collective labour law is also affected by the amendments introduced by the LRAA. These amendments are aimed at promoting the inclusion of non-standard employees in the collective bargaining framework and expanding the application of organisational rights. This will effectively expand the employee pool in a workplace for purposes of procuring organisational rights.
"These amendments will have the effect of creating a more inclusive collective bargaining arena in the workplace. Hopefully, this will lessen the need felt by smaller unions to use industrial action as the only route to obtain organisational rights, previously ordained for more representative unions only. In the current climate of violent strike action, any proposal that could result in the need to use less strike action should probably be welcomed,” he says.

Also noted in the LRAA in s70-77 are essential services, those services that, "the interruption of which endangers the life, personal safety or health of the whole or any part of the population' (as defined in section 213 of the Labour Relations Act, 66 of 1995). These services typically include supply of critical services such as water, electricity, policing and fire-fighting.
During 2011 the Essential Services Committee declared security, electrical and safety services at airports to be essential services. In June 2012 the Committee upheld a previous determination declaring air traffic and navigation services as essential. The main effect of designating a service as essential is that employees engaged in essential services are prohibited from partaking in protected strike action.
“Essential service employees seeking to improve terms and conditions of employment, including negotiating a salary increase or bonus, are forced to have their dispute resolved through arbitration should they be unable to convince their employers to accede to their demand. While other employees are able to use their collective power in withholding their labour, essential service employees are prohibited from engaging in a strike. Similarly, an employer may also not lock essential services workers out in a bid to force the workers to accept the employer's demands," Botes notes.
“Sections 70 – 77 of the LRAA are therefore important to note for firms in the aviation sector that employ workers performing essential services,” Botes adds.