Category Archives: Labour Law

MATERNITY LEAVE, ADOPTION LEAVE, COMMISSIONING LEAVE AND PARENTAL LEAVE

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.

THE PROMULGATION OF NEW UIF PROCESSES

THE PROMULGATION OF NEW UIF PROCESSES

On the 1st November 2019, the Department of Employment and Labour announced the long-awaited promulgation of Parental Leave with immediate effect.  Although the announcement only mentions Parental Leave, the Department has posted new forms on their website which address all the benefits which were passed in the amendment to the Act by the then President Jacob Zuma on the 19th January 2017 and we are assuming that applications for these benefits can be made with effect from 1st November 2019.

Below is a listing of the forms and the benefits for which they are applicable that have been posted on the DOL website:

UI 2.1 – Application for Unemployment Benefit in terms of Section 17(1) read with Regulation 3 (1)

This form is completed if an employee is dismissed, but still willing to work as a result of Dismissal for any reason including misconduct, retrenchment, incapacity or forced retirement.  This form must also be completed if the contributor is on short time and his earnings are less than he would receive from UIF if he was wholly unemployed. Payment while on Short Time is a new benefit.

UI 2.2 – Application for Illness Benefits     

This form is to be completed if an employee is ill (for any reason) for more than seven days and has exhausted his sick leave.  He is eligible to claim the same benefit as if he had been unemployed until he recovers.  This benefit is available for 12 months.

UI 2.3 – Application for Maternity Benefits

This form is completed if the employee is applying for maternity benefits.  The employee is now able to make application as soon as she is aware that she is pregnant or on the birth of a child, the stillborn death of a child or a miscarriage in the third trimester. The benefit available in any one of these circumstances is payment of 66% of salary up to the maximum benefit level of R17 712.00 for four months.  This means that anyone earning more than R17 712-00 per month will be eligible for a payment limited to R 11689,92 per month.

UI 2.4 – Application for Adoption Benefits

Application for Adoption Benefits of 10 weeks can be made by either parent who has legally adopted a child under the age of 2 years.  The benefit available is payment of 66% of salary up to the maximum benefit level of R17 712.00.  This means that anyone earning more than R17 712-00 per month will be eligible to a payment limited to R 26 997,51 for the 10 weeks.

UI 2.5 – Application for dependent’s benefits by surviving spouse or a life partner

When a contributor dies whilst still contributing, the surviving spouse or life partner is entitled to claim the contributor’s UIF.  They will receive the same benefit as if their partner had been unemployed or ill and payment is usually made calculated on the full 12-month period (or depending on the credits available) in a single payment.

UI 2.6 – Application for dependents benefits by a child, children of deceased

In the absence of a spouse or life partner, the dependent’s benefit can be applied for by children of the contributor, the guardian of a minor child or the nominated beneficiary of the contributor’s estate.  This form can be completed in any of these circumstances.

UI 2.7 – Remuneration Received by the Employee Whilst Still in Employment

This is a statement made by the Employer who may be supplementing the income of employees who are claiming UIF Benefits for Parental Leave, Commissioning Leave, Illness Leave, Maternity Leave, Adoption Leave or Reduced Working Time.  The form asks for the employer to state how much was paid each month.

UI 2.8 – Authorisation to pay Benefits into Banking Account

To be completed by the Bank or Post Office of the Beneficiary in the case of benefits, other than unemployment where benefits can be paid to the beneficiary directly into the beneficiaries banking account.

UI 2.9 – Application for Parental Benefits

This form is completed by the father of a child (Replacing family responsibility leave for the birth of a child), one of the parents of a child who is being legally adopted and is under the age of two or one of the parents of a child who is born through a surrogate arrangement (commissioning leave).  The contributor is entitled to 10 days leave paid at a rate of 66% of salary up to a maximum of R17 712-00.  For an employee earning more than this amount, the maximum benefit is R5 394.35 for the 10-day period.

It would appear that this form can also be used to apply for the 10 weeks adoption and commissioning leave.  This is a little confusing as we have a separate form for adoption leave.

UI 2.9 P – Application for Payment of Parental Benefits

This would seem to be a continuation of benefits form, but it appears that it is incorrect and will need amending.

UI 3 – Application for continuation of payment for Illness Benefits

This form must be completed for each month that the employee is on sick leave in order to continue to receive benefits.

UI 4 – Application for continuation of payment for maternity benefits

This form must be completed for each month that the employee is on maternity leave in order to continue to receive benefits.

UI 53 – Payments to dependants/nominee of deceased contributors

Merely a follow-up form confirming details of the dependents of a contributor who has died.

UI 6 A – Declaration to confirm unemployment status in terms of section 17(4) read with regulation 3(3)

This form is completed when a contributor is receiving a benefit and is still unemployed or still in a short time.  It is a continuation of benefits form.

UI 7 – Payment Advice

This is the form which employers are required to use when submitting UIF payments for their staff.  This is really meant for the payment of UIF for Domestic Workers as Companies should be paying their UIF through the SARS EMP 201 payments.  Payments can be made online, but where this is not possible, this form can be used to make monthly or annual payments.

UI 8 – Application for registration as an employer

Again, this can be done online or by making a paper application.  It is the form to be used when initially registering a business as an employer.

UI 8 D – Application for registration as an employer of Domestic Workers

This form is only to be used for private households and is applicable to all domestic workers including gardeners, carers for children or the elderly as well as cleaners and housekeepers.  Part-time domestic workers must also be contributors to the UIF Fund even if they only work one day per week.

UI12 – Notice of appeal against a decision of a Claims Officer

This form must be completed by a claimant who feels that their UIF payments have been unfairly refused or are not what they should be.  The form requires that this form be sent to the newly established Regional Appeals Committee and must be submitted within 90 days of the receipt of a refusal or suspension notice.

UI 19 – Employer’s Declaration of Employees for the month

This form must be submitted monthly in businesses which are larger.  Smaller businesses and private households can do it annually or when an employee is terminated. 

The reasons for termination have been expanded to include Reduced Work Time, Commissioning and Parental Leave

Foreign Nationals

One of the major changes that we need to take note of is that all employees (who are employed for more than 24 hours) must contribute to UIF and employers must contribute on behalf of all employees, regardless of whether they are part-time, temporary or on fixed-term contracts.  This includes foreign nationals.  The Regulations are being amended to state:

Identity document means a 13-digit barcoded RSA identity card and non-RSA identity (card) document or a RSA bar-coded passport and includes valid foreign identity documents and passports, as well as permits and other identifying documents contemplated in or issued in terms of the Refugees Act, 1998 (Act No.130 of 199).

An amendment to the regulations with this clause as its only intent was published for comment on the 8th October 2019.  Employers must, however, be aware of the Department of Employment and Labour’s responsibility to work with the Department of Home Affairs where the employment of undocumented foreign nationals is detected.

Conclusion

The amendment to the acts greatly improves the benefits which can be received from the UIF Fund. 

If you have any concerns or questions, please contact one of the associates or our office on  011 452 1707.

2019 New Human Resources Legislation for South African Business

2019 New Human Resources Legislation for South African Business

NEW POSTER REQUIRED FOR
THE BASIC CONDITIONS OF EMPLOYMENT ACT

2019 started with four new pieces of legislation in the Human Resource Space as well as new regulations for UIF and new rules for the CCMA.  Over the next few weeks Connold & Associates will be sending out information with regard to the new legislation in a series of blogs.  The intention is to inform you of the changes, particularly where changes need to be made to policies and procedures.

The legislation promulgated on 1 January 2019 is:

  1. The National Minimum Wages Act
  2. The Labour Law Amendment Act
  3. The Labour Relations Amendment Act
  4. The Basic Conditions of Employment Amendment Act

We will begin with:

The labour law amendment act

&

the EFFECT ON THE BASIC CONDITIONS OF EMPLOYMENT ACT

The Labour Law Amendment Act was introduced by a private member of parliament (Mrs C Dudley) and introduces new leave classifications in the Basic Conditions of Employment Act which are:

Adoption LEave

This is available for any employee who has adopted a child under the age of two years in an adoption process which complies with the Children’s Act of 2005.  The leave granted is ten weeks dated either from the day the adoption order becomes final or the day the child is handed over to the care of the employee by a competent court, pending the finalisation of the adoption. 

The employee must notify the employer one month prior to the adoption (or as soon as is reasonably practicable) of the date on which the employee will embark on leave and the date that they will return from leave.

Commissioning Leave

This is available for any employee who is a commissioning parent in a surrogate motherhood agreement in terms of the Children’s At of 2005. The leave granted is also ten weeks dated from the day the child is born. 

The employee must notify the employer one month prior to the anticipated birth of the child (or as soon as is reasonably practicable) of the date on which the employee will embark on leave and the date that they will return from leave.

Parental Leave

This leave replaces family responsibility leave for the reason of the birth of a child (paternity leave) which has been deleted from the Basic Conditions of Employment Act.

10 days parental leave is granted to:

  • The father of a child
  • One of the adoptive parents of a child (the other parent will apply for adoption leave)
  • One of the parents in a surrogate motherhood agreement (the other parent will apply for commissioning leave).

In implementing this leave into the workplace, we need to consider the following:

  1. As with maternity leave, all this leave, including parental leave, is not paid by the company, but claims for payment can be made through the Unemployment Insurance Fund.
  2. If you have a policy that pays towards maternity leave, we need to consider how to fairly accommodate adoption and commissioning leave in a similar way
  3. Essentially, male employees are losing a three day fully paid paternity leave for an unpaid ten-day parental leave.  What is the fair way of accommodating our fathers going forward?

It is important to note that this leave is now in place and that employers need to include it in letters of appointment and in leave policies with effect from the promulgation date. We also need to update the posters on the wall.

Please contact our associates if you have more questions.

New Regulations Booklet – Hazardous Work for Children

New Regulations Booklet – Hazardous Work for Children

Regulations with regard to hazardous work for employees under the age of 18 were gazetted in January 2010 in line with section 43 (1) of the Occupational Health and Safety Act which allows the Minister of Labour to gazette regulations.  In 2013 the Basic Conditions of Employment Act was amended with the following purpose:

  • to prohibit anyone from requiring or permitting a child under the age of 15 years to work;
  • to make it an offence for anyone to require or permit a child to perform any work or provide any services that place at risk the child’s well-being;

This week the Department of Labour published a booklet on their website which summarizes these regulations but also includes provisions from the Basic Conditions of Employment Act.  The communication has a number of interesting aspects to it and we have attached it for general interest.  Of particular interest is:

  1. Children under the age of 15 may work in the Advertising, Artistic and Cultural Activities industries and regulations governing these activities are covered by Sectoral Determination 10 which includes hours of work, rest periods, food accommodation etc.
  2. Children under the age of 15 may do the following work, other than as an employee as defined in the BCEA:
    • Collect contributions on behalf of a fund-raising organisation registered in terms of the Fund Raising Act, (Act No. 107 of 1978)
    • Do voluntary work for a church, charitable organisation or amateur sports club as part of his/her schooling, do work that is appropriate for a person of that age or which does not place at risk the child’s well-being, education, physical or mental health, or spiritual, moral or social development.

The booklet outlines, in line with international practices, the basis on which children under the age of 18 may work and identifies work which they may not be asked to do.  The full booklet is available below.

It is a criminal offence to require a child under the age to work in work not covered by the clauses above, punishable by a maximum prison sentence of 6 years.

Child-Labour-Regulations

Constitution Ruling With Regard to Temporary Employment Services (TES)

Constitution Ruling With Regard to Temporary Employment Services (TES)

Much has been said in the Media with regard to the recent Constitutional Court Reading with regard to Temporary Employment Services, or what is more commonly knows as Labour Brokers. The judgement clarifies the amendments to the Labour Relations Act of 2014.

The amendments of 2014 sought to protect employees in Labour Broker arrangements which were clearly articulated in a letter addressed to NUMSA by employees of Concor Engineering which were sent to them in 2009 (Labour brokers: The good, the bad, and the ugly). It is particularly clarifying clause 198A 3 (b),i.e.

  1. For the purposes of this Act, an employee –
    1. Not performing such temporary service for the client is –
      1. Deemed to be the employee of that client and the client is deemed to be the employer; and
      2. Subject to the provision of section 198B, employed on an indefinite basis by the client.

It is important to clarify a few issues which were raised in the judgement:

  1. The judgement only affects employees who earn below R205 433.33 per annum (gross salary) or R17 119.43 per month. These are regarded in the law as vulnerable employees.
  2. The judgement affects employees who are employed by a Temporary Employment Service (TES), but whose activities cannot be considered as Temporary. In other words, they are doing work that is core to the business of the client and that will last for longer than three months or in perpetuity.
  3. The employee is not replacing another employee who is sick or on maternity leave.
  4. The important thing is to distinguish between a TES and a sub-contractor or service provider.
    1. A sub-contractor has his own employees and provides not just the labour, but also the materials and tools required to do the work required.
    2. The sub-contractor has expertise which is not the core business of the client (e.g. security)
    3. The sub-contractor employs managers which directly supervise the employees in the carrying out of their duties.

By contrast, the TES merely supplies the labour who are then supervised and provided materials and tools by the client.

It is important to note that all TES providers must be registered as such and certified by the Department of Labour. The Department in the process of certification inspects and ensures that the TES is operating in accordance with all labour legislation.

We will see with interest what the effect of this judgement is going to be on the TES Industry.

For more information please see the press release on the Numsa website: NUMSA wins landmark Constitutional Court decision on labour brokers!

Employment Equity 2018 submissions

Employment Equity 2018 submissions

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 Classification Total Annual Turnover
Agriculture R 6 million
Mining and Quarrying R 22.50 million
Manufacturing R 30 million
Electricity Gas and Water R 30 million
Construction R 15 million
Retail and Motor Trade and Repair Services R 45 million
Wholesale Trade, Commercial Agents and Allied Services R 75 Million
Catering Accommodation and other Trade R 15 million
Transport, Storage and Communications R 30 million
Finance and Business Services R 30 million
Community, Social and Personal Services R 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 2018.
  • The company’s current annual Turnover.
  • Confirmation of Sector company is registered under.

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

What You need to know about UIF

On the 19th January 2017 the President assented to an amendment to the Unemployment Insurance Act that significantly improves the benefits that can be received from UIF and even better takes away some of the obstacles that existed in claiming these benefits. The improvement in benefits has been motivated by the surplus of R111 Billion that the Fund has in reserve at the moment. In 2015 the fund collected R16 Billion rand and paid R7 Billion in benefits.

There are essentially five benefits that can be claimed from UIF and over the next few weeks, we will explain these benefits and the changes that this amendment to the act introduces.

It is to be noted that although the act has been assented to, it has not yet been promulgated and there is no indication as to when the Minister of Labour will promulgate the act, but we anticipate that it will be within the next few weeks.

So, as a contributor to UIF employees can claim benefits in the event of:

  1. Becoming unemployed as a result of your dismissal. Dismissal may be for misconduct, incapacity, operational reasons (retrenchment) or retirement.
  2. Becoming too ill to work, either permanently or temporarily
  3. Having a baby (maternity leave)
  4. Adopting a baby
  5. And in addition their beneficiaries can claim a dependents benefit in the event of their death.

Legal Requirement

In the new amendment, all employees are required to contribute towards an Unemployment Insurance Fund administered through the Department of Labour. This includes everyone, from Executive Directors to Domestic Workers. It includes foreign nationals, even if they are working on work permits (or even illegal employees) and part-time employees. The only employees who do not contribute to Unemployment Insurance are those that work for less than 24 hours and independent contractors.

What this means is that if you employ a person for more than three days you have to deduct UIF from their pensionable earnings.

If you don’t’ (and please when you consider this put on your hat as the employee of a domestic worker even if she only works for you one day a week), you face a potential fine or a maximum of 12 months in prison. You also become liable to pay the benefits that the employee would have received if they had been contributing.

At the moment the maximum contribution level is capped at R148-72 per month which caps an employees benefit to a salary level of R14 872-00. This means that whatever their salary is their maximum benefit from UIF is 38% of R14 872-00, i.e. R5 617-16 per month. They can claim this for 34 weeks which works out to 7,85 months or until they start contributing to UIF again.

The good news is that when the amendment is promulgated, maternity leave will increase to a flat 66% of salary which means that during maternity leave if the employee’s salary is over the capped limit, they would be entitled to R9 815.52 per month for the four months that they are on maternity leave. Below that they would receive 66% of their actual salary.

In our next blog, we will discuss how to claim for unemployment benefits and the changes in applying that the new act has brought in.

If you are an employer of a domestic worker, please made sure that you register for UIF and pay the contribution across. This can be done by Ufiling and EFT and it can be done annually.