Category Archives: Labour Law

Code of Practice -SARS -CoV2 In The Workplace, 2022

The Department of Employment and Labour has gazetted the Code of Practice for managing exposure to Covid-19.  This code will come into effect on the day that the State of Disaster ends and the purpose of this Code is to guide employers and employees in managing exposure to SARS-CoV-2 in the workplace by providing guidance to employers and employees in – ‘

  1. Conducting or updating a risk assessment in terms of the OHSA and the HBA in respect of SARS-CoV-2 exposure.
  2. Developing a plan to limit infection, transmission and mitigate the risks of serious illness or death on the basis of that risk assessment.
  3. Implementing the plan.
  4. Managing absence from work due to infection, isolation and adverse effects of vaccination.
  5. Seeking to accommodate employees who refuse or fail to vaccinate against SARS-CoV-2

While much of what is in the Code is similar to the Occupational Health and Safety Guidelines published by the Department in May 2021, what is new is the sections dealing with vaccination.  This sections states:

12. Vaccination of employees
  1. Every employer must in accordance with the measures contemplated in section 5
    1. notify the employee identified in terms of section 6(1)(a) of the obligation to be vaccinated
    2. counsel the employee on the issues related to vaccines in section 7 (1)(c)
    3. permit the employee, at the employee’s request, to consult a health and safety representative, a worker representative or a trade union official
    4. give administrative support to the employees to register and to access their COVID-19 vaccination certificates on the EVDS Portal for SARS-CoV-215; and
    5. give the employee paid time off to be vaccinated and provide transport for the employee to and from the nearest vaccination site
  2. In giving effect to this Code, an employer may require its employees to disclose their vaccination status and to produce a vaccination certificate
  3. Should an employee suffer a vaccine adverse event that renders them unable to work, the employer must –
    1. on receipt of a medical certificate, give the employee paid time off to recover if the employee is no longer entitled to paid sick leave in terms of the BCEA or any applicable collective agreement; or
    2. subject to any regulations in respect of a COVID-19 Vaccine Injury No- Fault Compensation Scheme16, lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act, 130 of 1993.
  4. If an employee refuses to be vaccinated, the employer must-
    1. counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official
    2. take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated
  5. If an employee produces a medical certificate attesting that an employee has contra-indications for vaccination, the employer may refer the employee for a medical evaluation for confirmation at the employer’s expense
  6. If the employer accepts the medical certificate or the employee is referred to medical evaluation and that evaluation confirms that the employee has contra-indications for vaccination, it must accommodate the employee in a position that does not require the employee to be vaccinated

This seems to answer many of the questions raised by our clients with regard to being able to make vaccinations mandatory and how this should be implemented.  There have been several recent cases both at Labour Court and in the CCMA which have ruled that making vaccinations mandatory is fair and that where an employee refuses to be vaccinated and cannot be accommodated that it is then fair to dismiss them following the retrenchment process outlined in section 189.

References

Code Of Good Practice – On The Prevention and Elimination of Harassment in The Workplace

This code has been in development for some years. The Employment Equity Act, since its promulgation in 1999 has defined harassment as a form of discrimination, particularly if the harassment can be linked to the forms of discrimination listed in the EEA, i.e.

Race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth.

In 2014, they added “or on any other arbitrary ground” to this list

What the Employment Equity Act did not do was define harassment.  They did define Sexual Harassment in a Code, which actually was published prior to the promulgation of the EEA as part of the Labour Relations Act.  This code does define harassment and gives it a very wide definition, and it also defines separately racial, ethnic or social origin harassment. 

Harassment is defined in the code as:

  1. Unwanted conduct which impairs dignity
  2. Which creates a hostile or intimidating work environment
  3. It is related to one or more grounds in respect of which discrimination is prohibited in terms of the EEA.

Harassment includes violence, physical abuse, psychological abuse, emotional abuse, sexual abuse, gender-based abuse and racial abuse.
Types of harassment described in the code include:

  • Physical attacks including:
    • Threatened or simulated violence (raising a fist or throwing objects near a person)
  • Verbal bullying including.
    • Shaming
    • hostile teasing
    • insults
    • constant negative judgement
    • criticism
    • racist sexist or LGBTQIA phobic language
  • Psychological harassment
  • Passive Aggressive or covert harassment includes
    • Negative gossip
    • Negative joking at someone’s expense
    • Sarcasm
    • Condescending eye contact
    • Facial expression or gestures
    • Mimicking to ridicule
    • Deliberately causing embarrassment and insecurity
    • Invisible treatment
    • Marginalization
    • Social exclusion
    • Professional isolation
    • Deliberately sabotaging someone’s dignity, well-being, happiness success and their career performance
    • Mobbing by a group of people targeted at one or more individuals
  • Online harassment or cyberbullying using any of the communications technologies

Examples of harassment include, but are not limited to:

  • Slandering, maligning or spreading rumours maliciously
  • Conduct which humiliates, insults or demeans an employee
  • Withholding work-related information or supplying incorrect information.
  • Sabotaging or impeding the performance of work
  • Ostracising, boycotting or excluding the employee from work or work-related activities
  • Persecution such as threats and the inducing of fear and degradation
  • Intolerance of medical, disability, or personal circumstance
  • Surveillance of an employee without their knowledge and with harmful intent
  • Use of disciplinary or administrative sanctions without objective cause, explanation, or efforts to problem-solving
  • Demotion without justification
  • Abuse or selective use of disciplinary proceedings
  • Pressuring an employee to engage in illegal activities or not to exercise legal rights
  • Pressuring an employee to resign

The code distinguishes between vertical harassment (the abuse of an employee by their manager) and horizontal harassment, (the abuse of an employee by another employee in the same position or level).

Conclusion

The process for investigating incidents of harassment is outlined in both this code and the code for sexual harassment, and failure to do so could lead to the company being taken to the CCMA for failing to protect the employee and the perpetrator facing both criminal and civil proceedings.

The code requires all companies to adopt a policy for harassment in the workplace and to ensure that all employees are made aware of the policy and the code and the potential consequences to both them and the company. 

Remember, harassment is seen as a form of victimisation and therefore an automatically unfair labour practice.  The maximum penalty for harassing an employee or failing to protect an employee from harassment in terms of the LRA would therefore be 24 months salary.

References

Increased Earnings Threshold 2022

On 8 February 2022, the Minister of Labour and Employment passed new regulations increasing the earnings threshold from R211 596-30 per annum to R224 080.48. The new threshold will be effective from 1 March 2022. The original gazette did say 1 March 2021, but this was corrected the following day.

In the Regulations, earnings are defined as: the regular annual remuneration before deductions, i.e. PAYE, pension or provident fund, medical aid and similar payments, but excluding employer contributions to these benefits. The regulations also state that transport allowances received, achievement awards and payments for overtime worked shall not be regarded as remuneration.

The earnings threshold has increased by 5.9% from R 17 633.03 per month (basic salary) to R 18 673.37. This threshold is not to be confused with the maximum benefit threshold for UIF which remains R 17 712.00.

Why is the earnings threshold important?

Employees who earn below the threshold are more protected by the labour laws than those that earn more than the threshold. This threshold forms part of the Basic Conditions of Employment Act, (section 6.3) which states:

6.3 The Minister must, on the advice of the Commission, make a determination that excludes the application of this chapter or any provision of it to any category of employee earning in excess of an amount stated in that determination.

This comes from the part of the act that deals with the Regulation of Working Time. It states that the employees earning more that the earnings threshold are excluded from certain rights in terms of this Act. These are:

Clause 9: Ordinary hours of work

This means that people earning above the threshold can have variable hours whereas those below the threshold should have defined hours of work.

Clause 10. Overtime

Employees earning above the threshold are not entitled to overtime pay or time off in lieu of overtime worked.

Clause 11. Compressed working week.

The rules around working a compressed working week are not applicable to employees earning above the threshold (i.e., working a 12-hour day without overtime being paid). Typically, staff working in this manner work 4 days at 12 hours and 3 days off (security industry for example)

Clause 12. Averaging of hours of work.

This clause allows overtime worked to be averaged over a three-month period. Again, these rules do not apply to employees who earn above the threshold.

Clause 14. Meal intervals


Employees earning above the threshold are not entitled to a fixed lunch hour.

Clause 15. Daily and weekly rest period

Employees earning above the threshold are not entitled to the daily rest period or the weekly rest period of 36 hours.

Clause 16. Pay for work on Sundays.

Employees earning above the threshold are not entitled to additional pay (1.5 or double time depending on the nature of the work) when asked to work on a Sunday.

Clause 17(2). Night work

Employees earning above the threshold are not entitled to a shift allowance or transport when working night shift.

Clause 18 (3) Public holidays

Although the act says that employees earning above the threshold are not entitled to additional pay when working on a public holiday, the Public Holiday Act does require pay for all employees who are required to work on a public holiday or time off in lieu.

Labour Relations Act

Amendments to the LRA in 2014 have made reference to the earnings threshold, with specific reference to protections for specific employees. These are:

  • Temporary Employees employed though a Temporary Employment Service
  • Fixed Term Contract Employees
  • Part Time Employees

Employees in these categories who earn more than the earnings threshold are not protected by the provisions of section 198 of the LRA. This section of the act is aimed at preventing the abuse of employees who are never given the opportunity to become permanent employees.

In addition to this, the CCMA undertook to assist administratively any employee whose earnings fell below the earnings threshold. This included:

  • The preparation of dispute documentation
  • The serving of dispute forms to the employer
  • Assistance with collecting awards (the CCMA will pay the sheriff of the court to execute collections)


Over the threshold, employees have to do all of this themselves.

Employment Equity Act

Amendments to the Employment Equity Act also in 2014 makes reference to the earnings threshold in terms of access to the CCMA. The amendment ruled that the CCMA had jurisdiction to arbitrate sexual harassment matters while other disputes relating to discrimination could be referred to arbitration if the employee earned below the threshold and, unless otherwise agreed, disputes where the employee earns more than the threshold would be referred to the Labour Court.

Access to the Department of Employment and Labour

Perhaps the most problematic provision is that if an employee earns above the threshold, the Department of Employment and Labour will not give them access to an inspector if they believe that your employer is not complying with the acts. The employee would have to use the Labour Court or their own legal representatives to fight for their rights.

Conclusion

Essentially, the Earnings threshold is the divide between those employees who have the necessary skills and abilities to negotiate their own working conditions and those who need the full protection of the law to ensure that they are not exploited.

Minimum Wage regulations 2022

On 8 February 2022, the Minister of Labour and Employment passed new regulations increasing the minimum wage with effect from 1 March 2022. As was the case last year, this regulation governs the minimum wages for:

  • All employees who do not fall into specific categories listed below (including casual employees)
  • Farm Workers
  • Domestic Workers
  • Workers employed in Public Works Schemes (cleaning verges Parks, Cemeteries etc.)
  • Learners

The Regulations also provide new minimum wages for:

  • Contract Cleaners
  • Employees in the Wholesale and Retail Industries.

The increase in the minimum wage is 6.91% and both the Contract Cleaning and Wholesale and Retail Industries minimum wages have also increased wages by this percentage.  However, there have been substantial increases at the other levels.  See table below:

Minimum Wages 2021

Category of employeeHourly Rate 2021Hourly Rate 2022Increase AmountPercent IncreaseNew Monthly salary (45 hours per week)
Minimum WageR 21.69R 23.19R 1.506.91 %R 4 518.57
Farm workers WageR 21.69R 23.19R 1.506.91 %R 4 518.57
Domestic WorkersR 19.09R 23.19R 4.1021.47 %R 4 518.57
Public Work EmployeesR 11.93R 12.75R 0.826.87 %R 2 484.34
Contract CleanersR 23.87R 25.52R 1.656.91 %R 4 972.57

Learner Level 1 – 2

Credit amountWeekly RATE 2021WEEKLY RATE 2022INCREASE AMOUNTPERCENT INCREASENEW MONTHLY SALARY
0 -120 CreditsR 326.51R 349.04R 22.536.90 %R 1 511.34
121 – 240 CreditsR 652.99R 698.05R 45.066.90 % R 3 022.56

Learner Level 3

Credit amountWeekly RATE 2021WEEKLY RATE 2022INCREASE AMOUNTPERCENT INCREASENEW MONTHLY SALARY
0 -120 CreditsR 326.51R 349.04R 22.536.90 %R 1 511.34
121 – 240 CreditsR 614.95R 698.05R 45.066.90 %R 3 022.56
341 – 360 CreditsR 1 003.73R 1 076.19R 72.467.21 %R 4 659.90

Learner Level 4

Credit amountWeekly RATE 2021WEEKLY RATE 2022INCREASE AMOUNTPERCENT INCREASENEW MONTHLY SALARY
0 -120 CreditsR 326.51R 349.04R 22.536.90 %R 1 511.34
121 – 240 CreditsR 653.05R 698.11R 45.066.90 %R 3 022.82
341 – 360 CreditsR 963.38R 1 076.19R 69.436.90 %R 4 659.90
361 – 480 CreditsR 1 405.98R 1 570.63R 74.384.97 %R 6 800.83

Learner Level 5 – 8

Credit amountWeekly RATE 2021WEEKLY RATE 2022INCREASE AMOUNTPERCENT INCREASENEW MONTHLY SALARY
0 -120 CreditsR 326.51R 349.04R 22.536.90 %R 1 511.34
121 – 240 CreditsR 707.39R 756.20R 48.816.90 %R 3 274.35
341 – 360 CreditsR 1 058.41R 1 131.44R 73.036.90 %R 4 899.14
361 – 480 CreditsR 1 491.06R 1 593.94R 102.886.90 %R 6 901.76
481 – 600 CreditsR 1 904.58R 2 036.00R 131.426.90 %R 8 815.88

The intention was always to bring domestic workers up to the national minimum wage within a four to five-year period, hence the large increase in the minimum level now.

It is to be noted that there is no requirement to implement an increase if the employee is already earning more than the minimum salary.

New Occupational Health And Safety Measures

Introduction

Since the beginning of the Covid-19 lockdown, the Department of Labour has issued Directives (Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces), giving guidance on the measures that companies need to take to ensure that their workplaces are as safe as possible and to prevent the transmission of the virus.

On 11 June 2021, a new Directive was published which still requires that all companies with more than 50 employees will have to comply with administrative duties and report to the National Institute for Occupational Health each Tuesday, but which also provides some guidelines with regard to Vaccinations.

What Is New

Companies must:

  1. Undertake a risk assessment within 21 days of the new Directions being published to determine whether they are going to make vaccinations mandatory.
  2. Outline the measure it intends taking in respect of the vaccination of its employees.
  3. In developing the plan to take into account the right of employees to bodily integrity in terms of the right to freedom of religion, belief and opinion in section 13 of the Constitution.
  4. Companies have previously had to undertake a risk assessment and to develop a workplace plan to implement the safe return of employees to the workplace. This plan must now include a dispute process to manage the process where there are employees who refuse to return to work because of fears of infection.
  5. Provide employees with the nature of vaccines used, the benefits of the vaccines and the contra-indications.
  6. Assist employees to register on the Electronic Vaccine Data System Registration Portal.
  7. Give employees paid time off to be vaccinated.
  8. Give vaccinated employees who suffer side effects which prevent them from coming to work paid sick leave.

The Direction provides guidelines if an employer intends to make vaccinations mandatory.

The new combined directions and original directions are below.  For ease of reference, we have colour coded the new amendment in green. 

COIDA AND DOMESTIC WORKERS

On 10 March 2021, the Workmen’s Compensation Commissioner published regulations with regard to Domestic Workers being covered by the Compensation for Occupational Injuries and Diseases Act (COIDA).

This was in response to a Constitutional Court Order made on 19 November 2020 which declared that this means that Domestic employees will now be entitled for compensation in the event they are injured or contract diseases while on duty. In addition, the order has been made retrospective to 27 April 1994.

As per the COIDA Act:

the employee is a person who has entered into or works under a contract of service or of apprenticeship or learnership, with an employer, whether the contract is express or implied, oral or in writing, and whether the remuneration is calculated by time or by work done, or is in cash or in kind. Types of benefits paid in terms of the Act Compensation payable to domestic workers for occupational injuries and diseases.

Specifically covered by the act, other than permanent employees are:

  • Casuals
  • Directors
  • Members of Body Corporates
  • Employees provided by a Labour Broker

Domestic workers together with Members of the Armed Forces, Police Force and Independent Contractors were excluded until the new ruling.

The cover now provided to Domestic Workers who have been injured on duty or who have contracted a disease during the course of their duty, is the same as the benefit available to all employees and has been well described in the document published by the DOL as follows:

  1. Temporary total disablement (TTD)
    • The TTD is payable to an injured employee who is booked off for a period of 4 days and more by the treating doctor to recuperate from the injuries/condition in respect of the occupational diseases suffered at the time of the accident/diagnosis. The maximum period payable is 24 months.
  2. Permanent disablement lump sum
    • The permanent disablement lump sum is paid to an employee who has received a final medical report from the treating doctor indicating that the employee has reached maximum medical improvement. The permanent disablement should be 1-30% for the Compensation Fund to pay this benefit.
  3. Permanent disablement pension
    • The permanent disablement pension is paid to an employee who has received a final medical report from the treating doctor indicating that the employee has reached maximum medical improvement. The permanent disablement should be 31 -100% for the Compensation Fund to pay this benefit. Compensation payable to the dependants of employees who died as a result of injury on duty or occupational disease.
  4. Funeral expenses payable to dependents of a deceased employee with a date of death before the 1st of April 2019
    • The actual expenses incurred for the burial of a deceased employee are refunded to the dependants up to a maximum amount that is detailed in schedule 4 annually.
  5. Funeral benefits payable to deceased employees with the date of death of 1st April 2019 and after
    • The amount of R18 251.00 is paid as a lump sum to the dependants of employees who died as a result of injury on duty or occupational disease on and after the 1st of April 2019.
  6. Widow’s lump sum award
    • The surviving spouse of the deceased employee is paid a widow’s lump sum. This amount is split evenly to the spouses of the deceased employee in case of multiple surviving spouses.
  7. Widow’s pension award
    • The widow also receives a pension from the Compensation Fund. This pension is only terminated on the death of the widow.
  8. Child pension award
    • The children of the deceased employee are also paid a pension up to the age of 18 years or when they get married or financially emancipated. This pension may be extended for children who are still going to school after turning 18 years.
  9. Partial dependency award
    • This award is paid to the parents or siblings of the deceased employee if there is no surviving spouse or child. This is a once off lump sum that is paid to one individual.
  10. Wholly dependency award
    • This is a pension award paid to the parents or siblings of the deceased employee who were dependant on the income of the deceased employee. The award is paid if there is no surviving spouse or child. The pension is terminated by the death of the recipient or the expiry of the lifespan of the deceased employee.
  11. Orthotics and Rehabilitation
    • The following benefits are also available through the Compensation Fund for qualifying applicants,
  12. Bursaries for youth
    • The Compensation Fund provides bursaries for tertiary studies to unemployed youth, dependents of Compensation Fund pensioners and dependents of those who suffered fatal occupational injuries between the ages of 17 to 25 years.
  13. Return to work Programme.
    • The return-to-work programme provides skills development and facilitation of return-to-work for injured/diseased workers who are mainly persons with disabilities. Injured workers who have disabilities may apply for funding towards skills development that will provide equal developmental opportunities to maximise performance, employability, and participation in the labour market.
  14. Assistive devices
    • The Compensation Fund provides assistive devices such as wheelchairs and prosthetics to injured workers who have sustained a disability. The process of obtaining an assistive device is derived from the medical reports and is preauthorised to ensure that the beneficiary receives a device according to their medical requirements.
  15. Rehabilitation and re-integration
    • The Compensation Fund provides rehabilitation and reintegration programmes whose objective is to ensure all the needs of injured workers with disabilities are addressed. Case management ensures follow ups with workers who have sustained a disability with regards to their medical and social rehabilitation needs
  16. Medical Benefits
    • The following medical benefits are available through the Compensation Fund to qualifying claimants.
  17. Medical claims
    • The Compensation Fund will process reasonable medical expenses to gazetted Medical Service Providers and institutions that treated the employee.
  18. Re-opening of the claim
    • The Compensation Fund will re-open a claim for further treatment once the claim has exceeded two years from the date of accident and the employee still needs further treatment.
  19. Chronic medication
    • Chronic medication will be considered where an employee has contracted an occupational disease or injury that requires chronic medication. The treating medical practitioner must confirm the need for chronic treatment.

CLAIMS PRESCRIPTION PERIOD

A right to claim in terms of the Act shall lapse if the accident that happened or the disease that commenced on or after 27th April 1994 is not brought to the attention of the Commissioner or of the employer or mutual association concerned, as the case may be, within 12 months from 19th  November 2020.

IMPLICATION FOR DOMESTIC EMPLOYERS

This ruling means that all employers of domestic employees are obliged to register as employers with the Compensation Fund and submit the necessary returns as obliged.  All employers of domestic workers are therefore encouraged to register with the Compensation Fund without delay.

  1. Industry Classification In terms of the Compensation Fund’s Classification of Industries, domestic employers would be classified under Class XIX Personal Services, subclass 1910 at an assessment rate of 0.81.
  2. In terms of the new classification model to be introduced effective 1 March 2021, domestic employers will fall under its own class, Class M, subclass 2500 at an assessment rate of 1.04 for the 2021 year onwards.

Minimum Wage Regulations 2021

On 8 February 2021, the Minister of Labour and Employment passed new regulations increasing the minimum wage with effect from 1 March 2021.  As was the case last year, this regulation governs the minimum wages for:

  • All employees who do not fall into specific categories listed below (including casual employees)
  • Farm Workers
  • Domestic Workers
  • Workers employed in Public Works Schemes (cleaning verges Parks, Cemeteries etc.)
  • Learners

The Regulations also provide new minimum wages for

  • Contract Cleaners
  • Employees in the Wholesale and Retail Industries.

The increase in the minimum wage is 4.48% and both the Contract Cleaning and Wholesale and Retail Industries minimum wages have also increased wages by this percentage.  However, there have been substantial increases at the other levels.  See table below:

Minimum Wages 2021

Category of employeeHourly Rate 2020Hourly Rate 2021Increase AmountPercent IncreaseNew Monthly salary (45hrs per week)
Minimum WageR 20.76R 21.69R 0.934.48%R 4 266.30
Farmworkers WageR 18.68R 21.69R 3.0116.11%R 4 226.30
Domestic WorkersR 15.57R 19.09R 3.5222.61%R 3 719.69
Public Work EmployeesR 11.42R 11.93R 0.514.47%R 2 324.56
Contract CleanersR 22.84R 23.87R 1.034.51 %R 4 651.07

Learner Level 1 – 2

Credit amountWeekly RATE 2020WEEKLY RATE 2021INCREASE AMOUNTPERCENT INCREASENEW MONTHLY SALARY
0 -120 CreditsR 312.45R 326.51R 14.064.50%R 1 413.79
121 – 240 CreditsR 624.87R 652.99R 28.124.50% R 2 827.45

Learner Level 3

Credit amountWeekly RATE 2020WEEKLY RATE 2021INCREASE AMOUNTPERCENT INCREASENEW MONTHLY SALARY
0 -120 CreditsR 312.45R 326.51R 14.064.50%R 1 413.79
121 – 240 CreditsR 558.47R 614.95R 56.4810.1%R 2 662.73
341 – 360 CreditsR 963.38R 1003.73R 40.354.19%R 4 346.15

Learner Level 4

Credit amountWeekly RATE 2020WEEKLY RATE 2021INCREASE AMOUNTPERCENT INCREASENEW MONTHLY SALARY
0 -120 CreditsR 312.45R 326.51R 14.064.50%R 1 413.79
121 – 240 CreditsR 624.93R 653.05R 28.124.50%R 2 827.71
341 – 360 CreditsR 963.38R 1006.73R 43.354.50%R 4 359.14
361 – 480 CreditsR 1 405.98R 1 496.25R 90.276.42%R 6 478.76

Learner Level 5 – 8

Credit amountWeekly RATE 2020WEEKLY RATE 2021INCREASE AMOUNTPERCENT INCREASENEW MONTHLY SALARY
0 -120 CreditsR 312.45R 326.51R 14.064.50%R 1 413.79
121 – 240 CreditsR 676.93R 707.39R 30.464.50%R 3 063.00
341 – 360 CreditsR 1 012.83R 1 058.41R 45.584.50%R 4 582.92
361 – 480 CreditsR 1 426.85R 1 491.06R 64.214.50%R 6 456.29
481 – 600 CreditsR 1 822.56R 1 904.58R 82.024.50%R 8 246.83

The intention always was to bring domestic workers and farmworkers up to the national minimum wage within a four-to-five-year period, hence the large increase in the minimum level now. 

It is to be noted that there is no requirement to implement an increase if the employee is already earning more than the minimum salary.

New Occupational Health and Safety Measures

INTRODUCTION

Since the beginning of the Covid-19 lockdown, the Department of Labour has issued directives (Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces), giving guidance on the measures that companies need to take to ensure that their workplaces are as safe as possible and to prevent the transmission of the virus.

On 1st October 2020, a new Directive was published which requires that all companies with more than 50 employees will have to comply with administrative duties which before were only required by companies with more than 500 employees.

WHAT IS NEW

Companies have previously had to undertake a risk assessment and to develop a workplace plan to implement the safe return of employees to the workplace. This plan must now include a dispute process to manage the process where there are employees who refuse to return to work because of fears of infection.

Companies with over 50 employees must:

  1. Submit a record of their risk assessment together with a written COVID-19 Occupational Health and Safety Policy to the Department of Employment and Labour by no later than the 21st October 2020.
  2. They must also submit the following data to the National Institute for Occupational Health:
    1. To be submitted once
      1. Each employee’s vulnerability status for serious outcomes of a Covid-19 infection.
    2. To be submitted weekly
      1. Details of the daily symptom screening data
      2. Details of employees who test positive for COVID-19
      3. The number of employees identified as high-risk contacts (and who have been quarantined) as a result of exposure to a worker who has tested positive for Covid-19 and
      4. Details on the post-infection outcomes of those testing positive, including the return to work assessment outcome.
  1. Report employees who display symptoms of Covid-19 and are suspected to have contracted the virus in the workplace to the Compensation Commissioner following the guidelines in the directive on Compensation for Workplace acquired Novel Corona Virus Disease.

WHAT TO DO IF A PERSON SHOWS SYMPTOMS OF COVID INFECTION

If an employee shows symptoms at the workplace, the employer must arrange for the worker to be transported to a public health facility for testing.
The employee is required to self-isolate and exposed employees are required to self-quarantine for 10 days (reduced from 14).

EMPLOYEES WHO REFUSE TO WORK

In previous directives there were guidelines of the steps to be taken if an employee refuses to work if circumstances arise which, with reasonable justification, appear to the employee to pose a risk of exposure to Covid-19.
The new directive requires that where the matter cannot be resolved by the safety representative (committee) and the Compliance Officer, the employee must refer it to an inspector within 24 hours and all parties must be informed of the referral.
The inspector is empowered to issue a prohibition notice in terms of section 38 of the Occupational Health and Safety Act if they are of the opinion that the conditions in the workplace threatens the safety of any person.

We were really hoping that the lockdown would be lifted before having to comply with this legislation, but as it has been extended for another month, we will be required to comply. Failure to do so could mean a fine in terms of section 38 of the Occupational Health and Safety Act (currently R50 000-00 or one year in prison). We have developed formats for the reporting requirements and have posted all relevant legislation on our website.

Breaking News: TERS (2020/09/07)

New Directive extends TERS until the end of the COVID 19 Disaster

The Minister of Employment and Labour published a new Directive today extending the TERS benefit.  This extension in the terms of the directive:

shall be in operation for as long as the declaration of the COVID-19, in terms of the National Disaster Management Act, 2002(Act No. 57 of 2002), as a national disaster subsists or is withdrawn by the Minister, whichever comes first.”

This means that there is a further extension until at least 15 September (the date the Disaster Management Act has been extended to.

Having said that, no one to our knowledge has received the July/August TERS yet.

There has also been a clarification in a document called Extension Direction Communication.  The definition of who TERS can be applied for has had the following added to it.

  1. TERS can be applied for when vulnerable employees are unable to return to work, i.e. they have comorbidities or health issues which place them at a higher risk of complication or death should they contract the virus
  2. Employers can apply if:
    • They are not permitted to commence operations either partially or fully by the Regulations
    • They are unable to make arrangements for vulnerable employees to work from home
    • They are unable to fully employ staff because of economic, technological, structural, or similar needs caused by compliance to regulations
    • They are required to limit the number of employees at the workplace through rostering, staggering of working hours, short time or the introduction of shift systems and the temporary reduction in the employee’s ordinary remuneration.

The Directive has been back dated to 15 August 2020.

We are not sure when applications will open, but we have been warned that the DOL is intending to close applications for previous months. 

FOR MORE INFORMATION REGARDING TERS SEE OUR COVID-19 GUIDE ON OUR WEBSITE

Employment Equity Reporting 2020

According to the Employment Equity Amendment Act 2013, a designated employer must submit a report to the Department of Labour once every year.

Please remember that a designated employer is defined as:

  1. an employer who employs 50 or more employees;
  2. an employer who employs fewer than 50 employees, but has a total annual turnover that is equal to or above the applicable annual turnover of a small business as defined in the table below:
Sector or Subsections in Accordance with The Standard Industrial ClassificationTotal Annual Turnover
AgricultureR 6 million
Mining and QuarryingR 22.50 million
ManufacturingR 30 million
Electricity Gas and WaterR 30 million
ConstructionR 15 million
Retail and Motor Trade and Repair ServicesR 45 million
Wholesale Trade, Commercial Agents and Allied ServicesR 75 Million
Catering Accommodation and other TradeR 15 million
Transport, Storage and CommunicationsR 30 million
Finance and Business ServicesR 30 million
Community, Social and Personal ServicesR 15 million

Failure to comply could result in a fine of between R 1 500 000.00 and R 2 700 000.00 or between 2% and 10% of turnover – whichever is greater.

In the event that you would require our assistance in the submission of the required reports and in order for Connold and Associates to accurately determine whether your company is classified as a designated employer, please can we request that you provide Tessa at our offices with:

  • The projected number of employees on your payroll as at 1 August 2020
  • The company’s current annual Turnover
  • Confirmation of Sector company is registered under

Employment Equity inspections – Employment Equity Plans

Employment Equity inspections are in progress by the Department of Labour and are specifically focusing on the implementation and validity of Employment Equity Plans.
 
The act requires companies to include in their Employment Equity plans, a strategy and time frame to implement and rectify under-representation of persons from designated groups.
 
The Department of Labour has indicated that EEA2 reports will not be received as legitimate submissions without proper consultation and communication strategies in place that inform all employees of the EE Act.
Companies that do NOT have Employment Equity plans in place may be fined for contravention of the act: The greater of R 1.500 000 or 2% or the employer’s turnover. In addition, companies that have falsely reported on Employment Equity plans or do NOT have such plans in place will be criminally prosecuted

Please contact Tessa Lourens at our office or using this form if you would like us to assist with the relevant submission of your EE report to the Department of Labour.