Human Resource Management South African Labour Legislation (2_1)KBS720_Chapt 2_1.pdf

Human Resource Management South African Labour Legislation Chapter 2  Chapter 2: Learning outcomes Manage employment relations in accordance with the South African legislative and other legal requirements Manage people in a lawful and fair manner Design a contract of employm...

Human Resource Management South African Labour Legislation Chapter 2  Chapter 2: Learning outcomes Manage employment relations in accordance with the South African legislative and other legal requirements Manage people in a lawful and fair manner Design a contract of employment  Chapter structure Introduction The common law and the individual contract of employment Statutory law The Labour Relations Act The Basic Conditions of Employment Act The Unemployment Insurance Act The Occupational Health and Safety Act The Compensation for Occupational Injuries and Diseases Act The Public Holidays Act The Employment Equity Act Other relevant legislation  Introduction Labour legislation is administered by the Department of Labour The purpose of labour legislation is to protect employers and employees through balancing the power between the parties to the employment relationship Labour law is a mixture of the application of the common law contract of employment and a variety of statutes  South African labour law framework Statutory Law: ! Labour Relations Act ! Basic Conditions of Employment Act ! Unemployment Insurance Act Common law: ! Occupational Health & Safety Act Contract of ! Compensation for Occupational employment Injuries & Diseases Act ! Public Holidays Act ! Employment Equity Act ! Skills Development Act ! Skills Development Levies Act Common law contract of employment Forms the basis of the employment relationship “An agreement whereby the employee agrees to make his or her personal services available to the employer, to perform duties defined by the employer under the employer’s supervision in return for an agreed wage for a fixed or indefinite period until termination”  Parties to employment contract Employer and employee Sometimes difficult to determine whether person is employee or independent contractor Independent contractor hired to perform a specified piece of work and is not subject to supervision and control of employer Labour laws only protect employees Dominant impression test and statutory presumption used to determine whether person is an employee  Duration of employment contract Two types of employment contracts Indefinite contract of employment Employee appointed on permanent basis Fixed‐term contract of employment Appointed either for a specific period Or to perform a particular task Terminates automatically at end of period or on completion of task  Duration of employment contract 2014 Amendments: Employer may only appoint employee on a fixed‐ term contract longer than 3 months if employer can show a justifiable reasons Otherwise will be deemed permanent  A written contract A written contract should include the following provisions: Job description Remuneration Hours of work Leave Duration of contract Protection of employee’s interests Safety rules Disciplinary rules and procedures The employee’s position  A written contract A written contract should include the following provisions: continue… Medical aid Competitive employment Work to be done Provident or pension fund Performance standards Performance review Probationary period Termination of employment Life insurance  Duties of the employer To accept the employee into service To pay remuneration To provide a safe working environment To treat the employee fairly To adhere to the terms of the contract and relevant statutory duties  Duties of the employee To make his or her personal services available To maintain reasonable levels of performance To obey all reasonable and lawful instructions of the employer To promote the employer’s business and act in good faith To refrain from misconduct  Liability for delicts Employer may be held liable by a third party for wrongful conduct committed by employee during course and scope of employment  Termination of contract Upon expiry of fixed‐term contract Upon completion of task By giving due notice By cancellation due to material breach By illness of employee Redundancy of position By agreement By death of employee  Restraint of trade If the contract contains a restraint of trade, then upon termination, employee would be prevented from practicing his/her trade or profession, or from engaging in same business as employer, within a specified period and within a specified area  Labour Relations Act 66 of 1995 All employers and employees are covered, except : Members of the National Defence Force; Members of the National Intelligence Agency; and Members of the South African Secret Service. See s213 of LRA for definition of employee Also see s200A of LRA to determine whether a person is an employee or independent contractor  Objectives of LRA To give effect to and regulate the fundamental rights conferred by the Constitution To promote collective bargaining and collective agreements To promote worker participation at the workplace To promote effective dispute resolution Objective 1: To give effect to and regulate the fundamental rights Freedom of Association Employees are guaranteed the right to: participate in forming a trade union or trade union federation; and become a member of a trade union. Members of a trade union or federation of trade unions have the right to: participate in its lawful activities; participate in elections; and be elected or appointed as an office‐bearer, official, or trade union representative Objective 1: To give effect to and regulate the fundamental rights Employers are guaranteed the right to: participate in forming an employers’ organisation or federation of employers’ organisations; and join an employers’ organisation or federation of employers’ organisations. Objective 1: To give effect to and regulate the fundamental rights Members of an employers’ organisation or federation of employers’ organisations have the right to: participate in lawful activities of the employers’ organisation or federation of employers’ organisations; participate in elections; and be elected or appointed as an office‐bearer or official. Objective 1: To give effect to and regulate the fundamental rights Organisational rights A registered trade union, which is sufficiently representative, has the following organisational rights: Access to the workplace to recruit new members and to communicate with members to hold meetings with employees at the employer’s premises outside of working hours Objective 1: To give effect to and regulate the fundamental rights Organisational rights A registered trade union, which is sufficiently representative, has the following organisational rights: cont… Deduction of trade union subscriptions or levies from members' wages Reasonable paid leave for trade union activities for office bearers during working hours Objective 1: To give effect to and regulate the fundamental rights A majority union is entitled to the additional rights of: Disclosure of information Employer must disclose all relevant information which will assist a union representative to perform functions. Unless legally privileged, confidential, and may cause substantial harm to an employee or employer, or which is private personal information relating to an employee, unless that employee consents. Appointment of representatives at the workplace Where at least 10 union members are employed at a workplace. Objective 1: To give effect to and regulate the fundamental rights To obtain organisational rights: Union must give employer written notice that it seeks to exercise organisational rights The employer must meet with the union within 30 days and seek to conclude a collective agreement If a collective agreement is not concluded, the union or the employer may refer a dispute to the CCMA The CCMA appoints a commissioner who attempts to resolve the dispute through conciliation, and arbitration if necessary Objective 1: To give effect to and regulate the fundamental rights Unfair dismissal Every employee has the right not to be unfairly dismissed Unfair labour practice Every employee has the right not to be subjected to unfair labour practice Strikes and lock‐outs Employees have the right to strike and employers have recourse to lock‐out if the required procedures are followed Objective 2: To promote collective bargaining and collective agreements LRA promotes collective bargaining Mechanism by which employers bargain with trade unions regarding terms and conditions of employment Collective agreements Written agreements concluded between registered trade unions and employers or employers’ organizations that deal with terms and conditions of employment or any other matter of mutual interest. Objective 2: To promote collective bargaining and collective agreements Two types of collective agreements: Agency shop agreements Requires employer to deduct an agreed agency fee from wages of employees who are not members of the union and to pay into a separate account administered by the representative trade union Closed shop agreements Requires all employees covered by the agreement to be members of the majority trade union  Objective 2: To promote collective bargaining and collective agreements Bargaining and statutory councils make it attractive for employer organisations and unions to bargain at national sectoral level Bargaining councils Establishment of bargaining councils One or more registered trade unions and one or more registered employers' organisation may voluntarily establish a bargaining council for a sector and area. Powers and functions of bargaining councils to conclude and enforce collective agreements; to prevent and resolve labour disputes; to establish and administer a fund to be used for resolving disputes; to promote and establish training and education schemes; to establish and administer pension, provident, medical aid, sick pay, holiday and unemployment schemes or funds; to develop proposals for submission to NEDLAC on policy and legislation; to determine matters which may not be an issue in dispute for the purposes of a strike or a lock‐out; and to confer on workplace forums additional matters for consultation. Objective 2: To promote collective bargaining and collective agreements Statutory councils A registered trade union whose members constitute at least 30% of the employees in a sector and area or a registered employers’ organisation whose members employ at least 30% of the employees in a sector and area, may apply to the Registrar for the establishment of a statutory council in a sector and area where no bargaining council is registered. Objective 3: To promote worker participation Establishment of workplace forums Where there are more than 100 employees, a majority trade union may apply to the CCMA for the establishment of a workplace forum General functions of workplace forums The promotion of the interests of all employees at the workplace (not simply union members) as well as the enhancement of efficiency in the workplace The forum must be consulted by the employer on certain issues with a view to reaching consensus and, in some instances, the forum participates in joint decision‐making  Objective 3: To promote worker participation Consultation Employer must consult on the following: restructuring the workplace; changes in the organisation of work; partial or total plant closures; mergers and transfers of ownership in so far as they impact the employees; retrenchments; exemptions from any collective agreement or any law; job grading; criteria for merit increases or the payment of discretionary bonuses; education and training; product development plans; and export promotion. If employer and forum cannot reach consensus, employer must make use of the agreed upon procedure to resolve any differences before implementing the proposal.  Objective 3: To promote worker participation Joint decision making Employer must consult and reach consensus with a workplace forum before implementing any proposal concerning: disciplinary codes and procedures; rules relating to the proper regulation of the workplace (not relating to work performance); affirmative action measures; and changes to the rules regulating social benefit schemes. If no consensus, the employer may: refer the dispute to arbitration in terms of any agreed procedure; or if there is no agreed procedure, refer the dispute to the CCMA. Objective 3: To promote worker participation Information sharing An employer must disclose all relevant information that will allow the workplace forum to engage effectively in consultation and joint decision‐making Unless legally privileged, would cause substantial harm to an employee or employer, or which is private personal information relating to an employee Any dispute may be referred to the CCMA for conciliation and arbitration Objective 3: To promote worker participation Meetings There must be regular meetings of the workplace forum during working hours There must also be regular meetings of the forum and the employer at which the employer must report on: its financial and employment situation, its performance since the last report, and its anticipated performance. The forum must meet regularly with employees where it must report on its activities and on its dealings with the employer  Objective 4: To promote effective dispute resolution The CCMA All disputes not handled by private procedures or a bargaining or statutory council must be referred to the CCMA for conciliation before being referred to arbitration or adjudication Functions of the CCMA The CCMA must: attempt to resolve disputes referred to it through conciliation; arbitrate, if a dispute remains unresolved after conciliation, if the LRA requires the CCMA to arbitrate, or if parties consent; assist in establishing workplace forums; and compile and publish information and statistics about its activities.  Objective 4: To promote effective dispute resolution The CCMA may: if asked, advise a party on the procedure to follow and on how to obtain legal advice, assistance, or representation; offer to resolve a dispute that has not been referred to the CCMA through conciliation; conduct, oversee, or scrutinise any election or ballot of a registered trade union or registered employers’ organisation; publish guidelines in relation to any matter dealt with in the LRA; and conduct and publish research into matters relevant to its functions. Objective 4: To promote effective dispute resolution The Labour Court A superior court that has the same authority, inherent powers, and standing, in relation to matters under its jurisdiction, as a court of a provincial division of the High Court Labour Appeal Court The final court of appeal in labour matters, and has the same authority, inherent powers, and standing, in relation to matters under its jurisdiction, as the Supreme Court of Appeal  The Basic Conditions of Employment Act 75 of 1997 Prescribes minimum conditions of employment which parties may not contract out of Application of the BCEA Applies to all employees and employers except: Members of the South African Secret Service; Members of the National Intelligence Agency; Members of the National Defence Force; and Unpaid charitable workers.  BCEA Partial exclusions: Provisions regarding the regulation of working time do not apply to: senior managers; those earning more than amounts prescribed by the Minister; sales staff who travel to their customers and regulate their own working hours; and employees who work less that 24 hours per month. Provisions regarding leave, particulars of employment and remuneration, and termination of employment do not apply to: employees who work for less that 24 hours per month  BCEA Variation: Certain provisions of the BCEA may be varied by agreement between the parties either in the individual contract of employment or by way of a collective agreement. Also, the Minister may make a determination to replace or exclude any condition provided for in the BCEA. The Minister may make a sectoral determination which establishes basic conditions of employment and minimum wages for employees in a particular sector and area.  BCEA Ordinary hours of work Maximum of 45 ordinary hours in any week. If an employee works for 5 days or less per week: 9 hours per day; if an employee works for more that 5 days per week: 8 hours per day.  BCEA Overtime Overtime may only be worked by agreement No limit on overtime hours per day But employee may not work for more than 12 hours a day (includes ordinary hours & overtime) Maximum of 10 hours overtime per week Remuneration: 1½ hourly rate; or Can agree to normal hourly rate plus paid time off at the rate of 30 minutes for every hour of overtime; or Can agree to no pay and only paid time off at rate of 90 minutes for every hour of overtime  BCEA Compressed working week Written agreement may allow employee to work maximum of 12 hours per day without receiving overtime pay Provided employee does not work more than 45 ordinary hours or more than 10 hours’ overtime in any week or on more than 5 days in any week  BCEA Averaging of hours of work In terms of a collective agreement, ordinary hours of work and overtime may be averaged over a maximum period of 4 months Subject to the average ordinary hours not exceeding 45 hours per week & average overtime not exceeding 5 hours per week  BCEA Meal intervals Entitled to meal interval of 1 hour after 5 hours continuous work By agreement parties may reduce meal interval to 30 minutes, or to dispense with it if employee works less than 6 hours per day Meal interval is unpaid, but must be remunerated if required to be available for work during this period  BCEA Rest periods Daily rest period of at least 12 consecutive hours between ending and recommencing work Weekly rest period of at least 36 consecutive hours which must include a Sunday unless otherwise agreed Rest periods may be varied by written agreement May provide for a weekly rest period for 60 hours every 2 weeks; or Can reduce weekly rest period by 8 hours in one week and extend it by 8 hours the following week Daily rest period can be reduced to 10 hours in the case of an employee who lives on premises & whose meal intervals last at least 3 hours  BCEA Sunday work If employee ordinarily works on Sundays – remuneration is 1½ times hourly rate If does not ordinarily work on Sundays – double pay Employee must at least receive ordinary day’s wages or the rates referred to, whichever is the greater Can agree on ordinary rate plus time off  BCEA Public holidays Employee must agree to work on public holiday If employee works, entitled to greater of: At least double pay; or Normal daily rate plus amount for actual time worked  BCEA Night work “Night work” between 18:00 and 06:00 Employer must pay allowance, which may be a shift allowance or which may take form of reducing working hours Transportation must be available to and from work  BCEA Annual leave Full pay 12‐month leave cycle Minimum of 21 consecutive days May conclude agreement granting at least 1 day for every 17 days completed work or 1 hour for every 17 hours worked Extended by 1 day for every public holiday which falls within leave period  BCEA Sick leave Full pay 36‐month leave cycle Entitled to number of days paid sick leave equal to number of days he would normally work in a 6‐week period Eg: 30 days if employee works 5 days per week Entitled to all sick leave at any time during leave cycle, provided first 6 months of employment completed During first 6 months, limited to 1 day’s paid sick leave for every 26 days worked  BCEA Can agree to reduce pay to no less than 75% of pay (then number of days sick leave increased proportionately) Medical certificate required if absent for more than 2 days But if employee absent on more than 2 occasions in 8‐week period, medical certificate required (even for 1 day absence)  BCEA Maternity leave 4 consecutive months (unpaid) Commences any time from 4 weeks prior to birth or on date advised by medical practitioner May not work for 6 weeks after birth, unless medical practitioner certifies she is fit to do so Miscarriage during 3rd trimester or stillborn child, entitled to 6 weeks  BCEA Family responsibility leave 3 days’ paid leave per annual leave cycle Birth, illness, death of child or death of spouse, life partner, parent, grandparent, grandchild or sibling Only employees who work at least 4 days per week, and must have been employed for at least 4 months Proof may be required Unused days do not accrue  BCEA – Employment and remuneration particulars Particulars of employment Employer must provide certain information in writing to employee upon appointment Particulars of employer and employee Employee’s occupation and place of work Date of commencement Hours and days of work Wages and overtime pay Any payment in kind Intervals of payment Deductions Leave Notice period or date of termination (if fixed period) Any council or sectoral determinations BCEA – Employment and remuneration particulars Employer required to keep certain records Employee’s name and occupation Time worked Remuneration Date of birth if under 18 Must keep records for 3 years from date of last entry Rights of employees must be displayed in all official languages spoken in workplace (except where fewer than 5 employees)  BCEA – Employment and remuneration particulars Payment of remuneration Either daily, weekly, fortnightly, or monthly, at the workplace unless agreed otherwise Remuneration particulars Employer’s name and address Employee’s name and occupation Period for which payment is made The amount of the remuneration in money terms Amount and reasons for any deductions Actual amount being paid If relevant: rate of remuneration and overtime rate; number of ordinary and overtime hours worked; number of hours worked on a Sunday or public holiday; if an agreement to average working time exists, the total number of hours worked in the period BCEA – Employment and remuneration particulars Deductions S34 prohibits deductions unless employee agrees or unless deduction is required or permitted by law; collective agreement; court order or arbitration award Employee may agree to a deduction to reimburse employer for loss of damage only if: Loss / damage occurred in course of employment & due to employee’s fault Employer followed fair procedure & given employee opportunity to show why deduction should not be made Total amount of debt does not exceed actual amount of loss or damage Total deductions do not exceed ¼ of remuneration BCEA – Employment and remuneration particulars Notice periods: 1 week if employed 6 months or less 2 weeks if employed more than 6 months, but less than 1 year 4 weeks if employed 1 year or more Notice to or by farm & domestic workers may not be less than 4 weeks once they have completed 6 months employment BCEA – Employment and remuneration particulars Must be given in writing (except if employee illiterate) Employee may still challenge lawfulness / fairness of dismissal Parties may still terminate without notice for any cause recognised by law Employers may offer payment in lieu of notice  BCEA – Employment and remuneration particulars Upon termination, employer must pay Overtime not yet paid or any paid time off in respect of overtime or Sunday work Remuneration for annual leave not taken Notice pay if notice period not worked Any outstanding wages / salary Severance pay if retrenched or employer insolvent At least 1 week’s remuneration for each completed year of service Not entitled to severance pay if unreasonably refuse offer of alternative employment BCEA – Employment and remuneration particulars Upon termination, employee entitled to certificate of service: Employee’s full name Name & address of employer Date of commencement and termination of employment Title of job or brief description of job Remuneration Reason for termination (if employee requests) Unemployment Insurance Act 63 of 2001 Provides for payment of benefits in instances of unemployment, illness, maternity and adoption Must read together with Unemployment Insurance Contributions Act 4 of 2002 Provides for the payment of contributions for the benefit of the Unemployment Insurance Fund and procedures for collection of such contributions Fund derives income from contributions made by employers and employees Unemployment Insurance Act 63 of 2001 Applies to all employers and employees, excluding: Employees who receive a state pension Employees who receive remuneration under a learnership agreement Employees employed less than 24 hours per month Government employees Migrant workers who must be repatriated at the conclusion of their contracts of service  Unemployment Insurance Act 63 of 2001 Benefits are not calculated according to a fixed percentage of remuneration, but according to a graduated benefit scheme Employer is obliged to register employees with the UIF and make the required contributions Employees contribute 1% of gross earnings with employer also contributing 1%. The Occupational Health and Safety Act 85 of 1993 Duties of the employer: The Act provides a list of duties that the employer must comply with in order to provide a safe working environment which is without risk to the health of employees Duties of the employee: The Act also imposes certain duties on employees to ensure that they also take responsibility for health and safety at the workplace The Occupational Health and Safety Act 85 of 1993 Employer with more than 20 employees must appoint, after consultation with workforce, 1 or more full‐time employees as health & safety representatives In shops & offices: 1 representative for every 100 employees In other workplaces: 1 representative for every 50 employees  The Occupational Health and Safety Act 85 of 1993 Employer who has appointed 2 or more health & safety reps must establish 1 or more health & safety committees Employer obliged to consult with committee regarding measures to ensure health & safety Minister appoints labour inspectors who may: Enter premises and conduct inspections Prohibit employer from performing act which will threaten health & safety of employees Conduct investigations and enquiries into incidents  The Compensation for Occupational Injuries and Diseases Act 130 of 1993 Provides for the compensation of employees injured in accidents which occur during their normal course of employment or who contract occupational diseases. Irrespective of whether the injuries or diseases were caused by their own fault, the employer’s negligence, or that of any other person 3 categories of benefits: temporary disability, permanent disability and to dependents of deceased employees  The Compensation for Occupational Injuries and Diseases Act 130 of 1993 Duties of employer: Register with Compensation Commissioner and furnish details of business Keep records for 4 years of all employees, wages paid and time worked Submit annual statement to Commissioner setting out wages paid Commissioner then determines amount to be paid to Compensation Fund by employer  Employment Equity Act 55 of 1998 The purpose of the EEA is to achieve equity in the workplace by: promoting equal employment opportunity and fair treatment in employment through the elimination of unfair discrimination; and implementing affirmative action measures by designated employers EEA – Eliminating unfair discrimination An employer cannot discriminate against employees, including job applicants, on the basis of race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, HIV status, religion, conscience, belief, political opinion, culture, language, birth or any arbitrary ground Harassment is also considered to be a form of unfair discrimination EEA – Eliminating unfair discrimination Recruitment and selection procedures and criteria may only distinguish, exclude or prefer job applicants on the basis of an inherent requirement of a job or on the basis of affirmative action plans consistent with the EEA and not on any of the discriminatory grounds noted in the EEA Employer must consider not only the person’s actual ability, but also his/her potential ability to do the job EEA – Eliminating unfair discrimination Compensation policies should not discriminate between employees on any of the discriminatory grounds, and promotion, transfers, training and development opportunities should not be denied on any of the discriminatory grounds 2014 Amendment “right to equal pay for work of equal value” The work environment should be free of discriminatory practices and any form of harassment EEA – Eliminating unfair discrimination Should there be an allegation of unfair discrimination against employer, employer must establish that it is in fact fair Disputes about unfair discrimination must be referred to CCMA for conciliation, and if conciliation unsuccessful, to Labour Court for adjudication Labour Court may order compensation or payment of damages, or direct employer to take steps to prevent the same unfair discrimination or similar practice occurring in the future in respect of other employees  EEA – Implementing affirmative action Designated employers must implement affirmative action measures for suitably qualified people from the designated groups (Africans, Coloureds, Indians, women, and the disabled) “Designated employer” includes: A person who employs 50 or more employees, or a person who employs fewer than 50 employees, but has a total annual turnover equal to or above the applicable minimum annual turnover of a small business EEA – Implementing affirmative action Designated employers must, in consultation with unions and employees: Conduct an analysis of employment policies, practices, procedures, and the working environment to identify employment barriers which adversely affect people from designated groups Formulate a profile of the workforce within each occupational level to determine the degree of under‐ representation in various occupational levels Prepare and implement an employment equity plan to achieve reasonable progress towards employment equity Report to the Department of Labour on the implementation of employment equity at regular intervals  EEA Medical testing prohibited unless: legislation permits or requires such testing; or it is justifiable in the light of given medical facts, employment conditions, social policy, the fair distribution of employee benefits, or the inherent requirements of the job HIV testing is prohibited unless justifiable by Labour Court Psychological testing prohibited unless the test used: has been scientifically shown to be valid and reliable; can be applied fairly to all employees; is not biased against any particular employee or group; and has been certified by the Health Professions Council of SA or other certified body  Other relevant legislation Pension Fund Act 24 of 1956 Medical Schemes Act 131 of 1998 Tobacco Products Control Amendment Act 12 of 1999 Promotion of Access to Information Act 2 of 2000 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 Protected Disclosures Act 26 of 2000 Electronic Communications and Transactions Act 25 of 2002 Regulation of Interception of Communications and Provision of Communication‐related Information Act 70 of 2002 Protection of Personal Information Act 4 of 2013 Extension of Security of Tenure Act 62 of 1997 The National Credit Act 34 of 2005 Immigration Act 13 of 2003