The Portfolio Committee on Employment and Labour took the initiative to address an omission or lacuna in section 18(2)(b)(ii) of the Basic Conditions of Employment (BCE) Act 75 of 1997.
The committee’s first step was to receive a briefing on Wednesday morning from Parliament’s Constitutional and Legal Services Office (CLSO) on the problem and how it can be managed. According to the CLSO, the committee does have oversight powers over the Department of Employment and Labour’s legislative programmes, initiation and preparation of legislation in terms of section 73(2) of the Constitution and Rule 227(1) of the National Assembly.
In its presentation, the CLSO confirmed the existence of a problem in section 18(2)(b)(ii) of the BCE Act and suggested that the committee should invite the Minister of Employment and Labour to address the committee on the department’s views on the issue.
Fortuitously, the Acting Deputy Director-General for Policy and Industrial Relations in the Department of Employment and Labour, Mr Thembinkosi Mkalipi, was present in the meeting. He said that the department has already initiated a process to draft a Bill that will clarify section 18(2)(b)(ii) of the BCE Act. Mr Mkalipi said that the department has already received a consultation certificate on the matter from the National Economic Development and Labour Committee (NEDLAC), which is comprised of government, business, labour and community constituencies.
Nonetheless, the committee decided to invite the Minister to brief the committee on department’s view regarding the lacuna and measures taken to address it. The committee Chairperson, Mr Boyce Maneli, said that there is a general understanding among all committee members that although clarity is needed, it should not change the initial intention of the existing law.
According to Mr Maneli, the purpose of the amendment must be to make sure that there is no ambiguity in section 18(2)(b)(ii) of the BCE Act. “Although we acknowledge the fact that there has never been a case before the Commission of Conciliation, Mediation and Arbitration on this ambiguity thus far, no one can say with absolute certainty that there will not be one in the future,” he said.
The committee will decide, after it has been briefed by the Minister, whether it should invoke section 73(2) of the Constitution and Rule 227(1) of the National Assembly to initiate its own amendment Bill or leave the department to handle the process. The date for a meeting with the Minister will be announced in due course.
Justice Molafo
10 July 2025
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