Category Archives: Update

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.  

Update on New Legislation

On the 17 February the Department of Labour gazetted new regulations.  The regulations have the purpose of:

Publishing a New Summary of the Basic Conditions of Employment Act

The new summary has details of the new adoption leave, commissioning leave and parental leave provisions.  This means that we all have to get a new summary for our office walls.

The gazette also revises several forms for the internal use of Department of Labour.  This includes a compliance order which indicates the fines which may be imposed on an employer who fails to comply with the National Minimum Wages Act.

Revising the National Minimum Wage

The National minimum wage has been increased with effect from 1 March 2020.  The effective increase is 3.38% which is pretty much an inflationary increase.

The new minimum wages are:          

  • R20-76 per hour for General Staff
  • R18.68 per hour for Farm Workers
  • R15-57 per hour for Domestic Workers
  • R11-42 per hour for employees in municipal job creation projects

 Learnership allowances have also been increased.

Sectoral Increases

The gazette legislates minimum wages for the Contract Cleaning Sector which are effective from 1 March 2020 and corrected minimum wages for the Wholesale and Retail Sector which were effective from 1 October 2019.

A copy of the Regulations is available on the Website and from our office. If you have any concerns or questions or would like to order a copy of the new summary of the BCEA, please contact one of the associates or our office on 011 452 1707.

AMENDMENT TO LEGISLATION

The proposed amendments to the Employment Equity Act which were first published in September 2018 has been forwarded to Parliament for approval.  The gazettes main focus is to allow the Minister of Labour to establish Sector Employment Equity Targets which companies in that sector must then plan to achieve.

The gazette also promulgates section 53 of the Employment Equity Act requiring that employers who want to do work with the state or parastatal companies must have a certificate of compliance.

The good news is that the intention is to do away with the turnover requirements for compliance with the legislation and going forward only companies with 50 or more employees will be required to comply with Chapter III of the Employment Equity Act.  However, the act has to still go to the Provinces and then to be promulgated.  Maybe they can manage that before 1 October 2020?

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

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.

Skills Plans Submissions April 2019

By submitting your Skills Plans to the SETAs, levy paying companies are able to claim up to 20% of the paid Skills Development Levies from SETA for that period as well as an additional Pivotal grant for qualifying companies.

All training reports and training plans are to be submitted to the relevant Seta by the end of April 2019.

Companies who submit training plans and training reports become eligible for additional opportunities which exist for the training and development of both existing employees and the unemployed in order for the employers to gain funding.  These Discretionary grants are in the form of Learnerships, Apprenticeships and approved fundings as decided by the SETAs in line with their industry strategies.

If you would like Connold and Associates to process your Skills submission to the relevant Seta that you are registered with, please will you contact Tessa Lourens using the below form or at 011 452 1707 and we will then guide you through the process.


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.

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

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 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 TO DO?

What To Do?

Many of our clients are asking advice as to what to do on Friday as staff are either wanting the day off or saying that they feel that they will have difficulty getting to work.

Some companies have made the decision to support the strike and are closing for the day, but for the rest our advice is:

  • Where possible allow the staff to take a day’s annual leave on condition that they apply in advance and that it is approved before Friday.
  • Ensure that essential services are covered and that those staff who are critical to the continuation of the business are made aware that they are not eligible for leave.
  • Those that do not apply for leave and then do not come to work must have an acceptable reason, alternatively, it should be treated as an unpaid day.

All strike action, whether for a protected strike or an illegal strike is on the basis of no work, no pay.

Our advice is that anyone who does stay away loses a day’s pay, but that this should not be treated as a disciplinary offence.  Much as we did in the stay aways in 1980.

If anyone would like wording for a notice for staff, please contact Debbie or Tessa at the office.