Category Archives: Labour Law

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.

COVID-19 Lockdown

Every day is bringing us new information and processes to follow in terms of applying for assistance for companies who are experience business distress and how we can assist employees when we are unable to pay them full salaries, or indeed any salary.

Below is some of the new information that we have in this process.

TEMPORARY EMPLOYEE RELIEF FUND

Having had a long conversation with the call centre this morning we have established the following:

  1. We cannot force employees to take annual leave during the lockdown, it should be treated as special leave, but the special leave does not need to be paid.  The implication is that if staff would prefer to use their annual leave they can.  We have changed our letter format to suit.
  2. The Memorandum of Agreement was meant for Bargaining Councils and not for individual employers applying.  This means that:
    • You do not need to open a special banking account.
    • You do not need to do a proforma invoice attracting VAT.
    • The letter of authority is still necessary and the UIF reserves the right to do an audit, but this MOA does not need to be signed, although there might be another document later.
  3. The application of TERS is meant for employees who will be receiving no funds during the lockdown period and perhaps for some time after this.  There is a separate process for employees whose income is affected by a reduction in their working hours.  This definition does not include those employees who are still working a full day, but may, due to financial constraints, have had their salary cut by a percentage.
  4. Employees whose time has been reduced will receive a benefit even if their salary after reduced hours is more than the maximum benefit from UIF of R6,730.56 (I asked this question several times, so really hope the information is correct).
  1. To claim for UIF benefits for reduced time we are now able to use the same process as TERS, but to include in the leave payment column of the spreadsheet, the value of the payment made to the staff member.

At this stage we are unable to determine what payment the employee will receive

Please don’t let employees use the online system as this will utilise their UIF credits and payment may not be received any time soon.

TAX CONCESSIONS

A draft document has been posted on the SARS Website with proposed assistance to employers to assist them during this time.  There are basically two proposals:

  1. ETI Benefit:  the proposal is to extend the Employment Tax Incentive to cover all staff to the age of 65 whose income is below R6500-00 by allowing employers to deduct R500-00 from their PAYE and to increase the benefit for employees with less than 24 months service and who are below the age of 29 by R500.
  2. Allowing small and medium-sized companies (turnover below R50 million) to defer the payment of 20 per cent of their PAYE liability, without SARS imposing administrative penalties and interest for the late payment thereof.
  3. The deferred PAYE liability must be paid to SARS in equal instalments over the six month period commencing on 1 August 2020, i.e. the first payment must be made on 7 September 2020.

RETIREMENT FUNDING RELIEF

Responding to calls from Employers wanting relief from the cost of paying over Retirement funding during this period, the FSCA has responded to say that while the risk benefits need to be paid (life insurance, disability insurance, funeral cover etc), with a rule change, which they are going expedite as quickly as possible, companies will not need to pay over the investment portion of the Retirement Funding during this period.  The official communique from the FSCA is posted below.  Please contact your Retirement Fund Administrator for assistance.

We will inform you when the regulations have been passed into law.

Covid-19 Temporary Employer/Employee Relief Scheme (TERS)

The Department of Employment and Labour has made money available to companies who are experiencing difficulty paying staff as a consequence of COVID-19.  They will also pay benefits to employees who are ill as a consequence of COVID-19.  To streamline the process they will sign an MOA with the company and once information has been provided they will pay the company who can then reimburse the employees.

Unfortunately, the benefits remain the same, i.e. The salary benefits will be capped to a maximum amount of R17 712, 00 per month, per employee and an employee will be paid in terms of the income replacement rate sliding scale (38 % -60 %).  They have said that there will be a minimum amount of R3500-00 which is the current minimum salary.  This means that anyone earning above R17 712-00 will only be reimbursed at R6 730.56.

If you would like us to assist with the claiming process please contact the consultant you normally deal with or contact Debbie Mason here.

COVID-19 LABOUR LAW OPTIONS

We are having a number of conversations with our clients with regard to the effect that the effective global shut down has had on the Country and the world with regard to this virus and no doubt viruses to come in future years.  I cannot think of a business that is not going to be negatively affected by this, even the health industry as products shipped from China and Europe will be delayed, but those involved in travel and eventing will be the most seriously affected initially.

Below I have given a number of the frequently asked questions with the advice that is being given by the Department of Labour and the Legal Fraternity.

HEALTH AND HYGIENE

The Department of Labour has issued a directive in terms of our responsibility as employers in answer to the question of what our responsibilities to our employees are.

The Department of Employment and Labour has appealed to employers to use the prescriptions of the OHS Act of 1993 in relation to Coronavirus Disease 2019 COVID-19.

The OHS requires the employer to provide as far as is reasonably practicable, a safe working environment which is without risks to the health of all employees.

Current risk assessments need to be reviewed and updated taking into account the new hazards posed by exposure to COVID-19 in the workplace.

Employers who have not yet prepared for pandemic events are requested to prepare themselves for potentially worsening outbreak conditions.

The Department has developed a COVID-19 guideline which is based on infection prevention and occupational hygiene practices.

It focuses on the need for employers to implement the following measures:

Engineering controls:

Isolating employees from work-related hazards, installing high efficiency air filters, increasing ventilation rates in the work environment and installing physical barriers such as face shields to provide ventilation

Administrative controls:

Encouraging sick employees to stay at home; minimizing contact among workers, clients and customers by replacing face-to-face meetings with virtual communications e.g. conference calls, skype etc; minimising the number of workers on site at any given time e.g. shift work; discontinuing local and international travel; developing emergency communication plans, including a task team for answering worker’s concerns and internet-based communications; provide workers with up-to-date education and training on COVID-19 risk factors; training workers on how to use and wear protective clothing and equipment

Safe work Practices:

Provide resources that promotes personal hygiene e.g. no-touch refuse bins, hand soap, alcohol-based hand rubs containing at least 70% alcohol, promote regular hand washing

Personal Protective Equipment:

This includes the provision of gloves, goggles, face shields, face masks, gowns, aprons, coats, overalls, hair and shoe covers and respiratory protection.

Employers and workers should use this information to identify risk levels in the workplace and identify additional appropriate control measures. Additional guidance may be needed as COVID-19 outbreak conditions change.  In the event that new information about the virus and its impact is established, plans may need to be modified accordingly.

In the case of suspected exposure, contact the Coronavirus hotline in South Africa – 0800 02 9999

SICK LEAVE

The questions that are being asked of us are:

Does quarantine count as sick leave? 

If a doctor orders it then yes it does, but if a person voluntarily goes into isolation then it does not.  However, if the employer imposes quarantine on its employees, then that should be treated as special paid leave (not annual leave).

If an employee catches Coronovirus at work will it be a WCA Claim?

If the employee’s job is to work with affected or potentially affected people and it was acquired during the course of his work, then it will be a WCA claim.  In other circumstances, we will have to allow the Commission to decide.  It is going to be difficult with certainty to determine where the infection came from.

All other infected and ill employees will be entitled to normal sick leave.

ALTERNATIVE WORKING ARRANGEMENTS

Many staff are requesting permission to work at home, particularly as schools have closed and alternative childcare may not be available. 

How do I monitor staff who want to work from home and what do I do if they cannot work more than 3 or 4 hours a day? 

Companies are going to have to look at this very seriously and improve their monitoring systems so that they can measure work done.  Maybe they need to agree an hourly rate for work done during this period.  It is going to have to be on a case by case basis.

What do I do with staff who cannot work from home?

They need to come to work or take annual or unpaid leave.  We will have to monitor what happens to public transport, but if hygiene factors are looked after, there should not be a problem with continuing to work.

What do I do with staff who choose not to come to work (childcare, immune system compromise, self-isolation etc.)

We have suggested to our clients that they have discussions with their staff about the hygiene factors and the real risks of the virus, but also about the effect that it is going to have on their businesses and seriously introduce the possibility of short time or requiring employees to take some of their annual leave.  They also need to discuss the “no work no pay” principle for people who choose for whatever reason to not come to work.

OPERATIONAL REQUIREMENTS

For many of our clients, they literally have little or no business for the length of time that the global shut down is in place.  The following questions have been asked:

Can I lay-off staff or ask them to take unpaid leave?

The discussion is around what the Department of Labour calls Reduced Working Hours.  There are no guidelines to this in the Basic Conditions of Employment, but employees can apply for UIF benefits whilst on a Reduced Working Hours (Short Time) arrangement.  This is seen as an alternative to retrenchment and the consultation with staff would be in terms of how this could best be arranged.  Each Company would have to look at their particular circumstances.  To be fair and in line with Bargaining Council Agreements, reduced working hour arrangements must be applied to everyone in the business and there should be 5 days notice of the implementation of short time.

Can I retrench?

If the business requires it then you can, but you need to follow the process outlined in section 189 of the Labour Relations Act.  This requires consultation with staff on how to select employees to be retrenched, timing, severance packages etc.  Part of the process is to look at alternatives to retrenchment such as reduced working hours and to ask for volunteers.  It is a difficult process and really should only be considered if the company was contemplating retrenchments prior to the virus outbreak.

LABOUR COURT AND CCMA

We have received information that the Labour Court and the CCMA will effectively be closed.  The CCMA will not be doing any face to face meetings between 18th March 2020 and 14th  April 2020. They will only accept e-mailed applications for disputes and have postponed all arbitrations.  They will do telephonic conciliations where possible.  They will assist with large retrenchments, but only if it is held at the company premises and they can be assured that health and hygiene arrangements are adequate.  Otherwise, they are closed.

CONCLUSION

I think it is important not to panic.  80% of infected people will be mildly affected and have very light symptoms.  It’s the 20% who become critically ill that will overload the health system.  We need perhaps to have separate conversations with people who have hypertension, diabetes, HIV, respiratory conditions, cancer, cardiovascular disease, smokers and people with autoimmune conditions and find specific ways to protect them.

Particular advice:  Wash your hands when you go into a meeting and when you leave a meeting. Sterilize your phone with an alcohol-based sanitiser, don’t shake hands, hug or kiss anyone in the workplace.

A good source of information is Alanah Shaikh’s Ted Talk on Covid-19.  

MATERNITY LEAVE, ADOPTION LEAVE, COMMISSIONING LEAVE AND PARENTAL LEAVE

On 1 November 2019, the Department of Labour promulgated changes to the UIF benefits which had been originally passed on 1 January 2019.  These changes affect the Unemployment Insurance Fund Act as well as the Basic Conditions of Employment Act.  They originate from the Labour Laws Amendment Act which was passed in November 2019 as a result of an initiative of the ACDP Party’s member for Parliament Mrs Dudley.

What do these changes mean?  They introduce new types of leave which are available to all employees and those who have contributed to the Unemployment Insurance Fund for more than 13 weeks.  These types of leave are described below. 

Payment of UIF will be calculated at 66% of salary up to a maximum of 66% of the benefit threshold, currently set at R17 712-00 per month.

This means that if you earn R8 000-00 per month your benefit will be R5 280-00 per month.  If you earn more than the benefit threshold of R17 712.00 your benefit will be a maximum of R11 689-92 per month.

Maternity Leave

You, as the mother of a baby, are entitled to four month’s maternity leave.  This means that your company is required to allow you to return to work after four months and must guarantee you the same or similar position that you enjoyed before.  They are not required to pay you during this period as you are able to claim from the UIF fund.  However, they can choose to do so and many companies make a part payment of salary.

Important things to know about the new Maternity Leave UIF application process:

  • You can apply for leave as soon as you know that you are pregnant, and you can make an application on the new on-line application system.
  • The Claim will be activated on the submission of a birth certificate containing the full name of the parent.
  • If your baby is still-born or you miscarry during the third trimester, you are entitled to the full maternity leave benefit.
  • Payment will be made into your bank account monthly on submission of a continuation form

Adoption Leave

The new legislation provides for adoption leave of 10 Weeks.  This is available to one of the parents (the parents can decide who is going to take this leave) who legally adopts a child under the age of two years and can be taken from the time that the child is handed into the care of the adoptive parents.  Proof of the adoption must be provided.

Commissioning Leave

This part of the act will be promulgated on 1 April 2020.

One of the parents of a child who has been born and where there is a legal surrogate arrangement is also entitled to take 10 week’s commissioning leave.  This can be taken when the child is born subject to proof of a surrogate agreement being legally concluded. 

Parental Leave

The father of a child or the other parent in an adoption or commissioning arrangement can take 10 days of parental leave.  This leave replaces the Family Responsibility Leave for the Birth of a Child which has been deleted from the Basic Conditions of Employment Act. 

The father of a child must present a copy of the child’s birth certificate and it must have full details of both parents.  The parent wishing to take parental leave in the case of adoption and commissioning leave must submit copies of the legal agreements.