HIRING staff looks set to become a massive exercise bound in red tape if the Department of Labour gets it way with its proposed labour law amendments, say labour law consultants.
And as the date for final submission of public comments set for Thursday nears, labour law advisors, employers and business associations are preparing to flood the department with submissions opposing the planned laws.
The proposals include banning labour brokers, converting all temporary employees into permanent employees barring employers being able to prove why they should be on a contract and fining employers who don’t report vacancies in their business to the department.
A regulatory impact assessment (Ria) report by local policy analysts concluded that if the proposals were passed in their present form they would result in firms steering away from hiring more employees, putting thousands of jobs at risk.
Michael Bagraim of Bagraims Attorneys, one of a number of labour law consultants who has filed a submission to the department, said the proposals were “detrimental” to job creation and that they went against the government’s promises to create more work.
One of the proposals is for an Employment Services Portal, contained in the Employment Services Bill, from which businesses will also be able to access potential employees through an internet database.
The bill will effectively boost the department’s existing employment services database by making it mandatory for employers to report any vacancies to the department within 14 days or face fines of up to R10 000.
Though the Ria report said the bill “imposes a significant administrative burden on employers”, the department believes the portal will do away with high fees charged by labour brokers and lessen the “costs of doing business”, as the system would be free to use by employers.
The department’s head of employment services and work sector placement and registration, Zodwa Mabaso, said that before drafting the bill the department had studied 29 countries.
Many businesses including smaller firms in those countries the department visited, believed the system played a valuable role in reducing recruitment costs, she said.
However Mabaso admitted that a Swedish colleague had advised her department against fining employers that neglected to report vacancies, pointing out that Swedish courts were clogged up with cases taken up by employers seeking to challenge the fines.
Shaun Snyman, a director of labour law advisors Labournet, questioned how an employer would be able to determine exactly when a vacancy came about and when they would have to report it, adding that the idea to report vacancies was a “big fat waste of time and resources”.
“You cannot compel a process of recruitment through that process. The whole thing just creates distrust,” he said, adding that the department under-estimated the complex nature of recruitment.
“If a Department of Labour CV landed on their desk they would say ‘oh not another one’ and then they are going to toss it into the dustbin,” he said.
He believed that the department should rather look to improve the management of its existing employment services database and pointed out that if it was well managed and remained free of charge many employers would opt to make use of it rather than spend thousands of rands using recruitment agencies.
Snyman also pointed out that the clauses contained in the Labour Relations Amendment Bill that propose that all work be fulltime unless employers can prove otherwise, would only lead to unemployment.
Employers looking for someone to stand in for an employee on sick leave or maternity leave would think twice about hiring someone if there was a chance that when the other employee returned, that the new employee would demand that their job was permanent – especially if it meant having to go to the CCMA or Labour Court to argue their case.
Added to this Snyman said the proposal to make it mandatory that all CCMA cases be held as joint conciliation and arbitration (or con-arb) sessions, rather than separate ones, would see systems at the CCMA collapse.
He believed not having a separate initial conciliation step would encourage employers to steer away from settling early and to rather fight for all they are worth, forcing cases to drag on for longer.
This article originally appeared in Business Day on 15 February 2011.
Stephen Timm is a