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We are nearing the
end of the third quarter of 2002. It hardly seems possible.
New labour
legislation was promulgated on the 1st August 2002. These were
amendments to both the Basic Conditions of Employment Act and
the Labour Relations Act. As a result we will be contacting you
to revise the policy and procedure manuals to comply with the
new legislation.
The amendments were
in fact contained in the previous acts, but were open to
interpretation. The new phrasing makes the intentions of the
acts perfectly clear. The main points to note are as follows: |
PROBATION
The provision of a
probation period for a new employee is very clearly stated and
includes responsibility for the employer to counsel, train and set
very clear standards. The act however, states that should these
processes have been followed then termination of the contract should
not be as onerous as it would be for an employee who is not on
probation. The notice period has been reduced to one week for a six
month period.
RETRENCHMENT
The process to be
followed to retrench employees has been described in the act as a
“joint consensus-seeking” process. Employees are entitled to have
information regarding previous retrenchments carried out by the
employer, have a freer access to the labour court and may request
facilitation. They also have limited powers to call a strike.
TRANSFERRING CONTRACTS
OF EMPLOYMENT AND LIQUIDATIONS
These provisions have
been more clearly stated in the act. Employees transferring from one
company to another have the right to continuity of service and it is
regarded as an unfair labour practice to offer them employment on
less favourable terms than those they enjoyed with their previous
employer.
DEFINITION OF AN EMPLOYEE
The definition of an
employee has been redefined as follows:
PRESUMPTION OF WHO IS
EMPLOYEE
A person who works for,
or renders services to, any other person is presumed, until the
contrary is proved, to be an employee, regardless of the form of the
contract, if any one or more of the following factors is present:
-
the manner is which
the person works is subject to the control or direction of another
person;
-
the person’s hours of work are subject to the control or
direction of another person;
-
in the case of a person who works for an organisation, the
person is a part of that organisation;
-
the person has worked for that other employer for an average of
at least 40 hours per month over the last three months;
-
the person is economically dependent on the other person for
whom he or she works or renders services;
-
the person is provided with tools of trade or work equipment by
the other person; or
-
the person only works for or renders services to one person.
Subsection 1 does not
apply to any person who earns in excess of the amount determined by
the Minister in terms of section 6 (3) of the Basic Conditions of
Employment Act.
The amount referred to
above is currently R89 455-00 per annum.
NEDLAC is currently
preparing a Code of Good Practice to set out guidelines for
determining whether persons, including those who earn in excess of
the amount determined by the minister are employees.
OVERTIME
The BCE act had a target
to reduce the hours of work to 40 hours in a five-year period. In
many industries this has now been achieved. However, the new
amendments have limited the amount of overtime a person may work to
15 hours, despite any agreement, which may be reached between the
employee and the employer.
As a result of these
amendments we will be revising all existing policy and procedure
manuals in order to ensure compliance with these acts. We are
currently promoting our two-day Industrial Relations Course, which
explains the acts affecting the management of staff,
i.e. Basic Conditions of
Employment Act
Labour Relations Act
Employment Equity Act
Skills Development Act
Occupational Health and Safety Act
Workmen’s Compensation Act
Unemployment Insurance Act
For more information
please contact:
Desrae Connold (082-885-0124) or
Sasha Zito (082-805-5561).
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