PEMA5122 LU 9 Social Security (PPT)

PEMA5122 Learning Unit 9 – Social Security Legislation - UIA, COIDA and OHSA (READ PAGE 31 OF THE MO) Theme 1 – The Unemployment Insurance Act 63 of 2001 (UIA) PM: Chapters 18 &19 & 20...

PEMA5122 Learning Unit 9 – Social Security Legislation - UIA, COIDA and OHSA (READ PAGE 31 OF THE MO) Theme 1 – The Unemployment Insurance Act 63 of 2001 (UIA) PM: Chapters 18 &19 & 20 LEGISLATION: The Unemployment Insurance Act 63 of 2001 (UIF), The Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) and The Occupational Health and Safety Act 85 of 1993 (OHASA) [only in so far as it is necessary to meet the learn outcomes contained in this learning unit] CASE LAW: Gunter v Compensation Commissioner 2009 (30) ILJ 2341 (0), Twalo v Minister of Safety and Security and Another 2009 (30) ILJ 1578 (Ck); and Mahlangu and Another v Minister of Labour and Others 2021 (1) BCLR 1 (CC); 2 BLLR 123 (CC).  LO1: Discuss the rationale for and the application of the UIA.  The rationale for the UIA  in the instance that the employee can no longer work as a result of an illness, the UIA makes provision for such employees, the UIA created the UIF – read from Act for context  The application of the UIA  Almost all employees  Previously excluded but now included  Learners on learnership  Foreign nationals  Non-standard employees  Public servant  Domestic workers  Currently excluded  Employees working less than 24 hours p/m  Members of parliament, cabinet and ministers  Members of provincial legislatures  Municipal councils  See page 284 when members will be unable to claim  LO2: Discuss the requirements that must be met, as provided for in the applicable Act, in order to qualify to claim unemployment benefits.  Page 284 (para 2.3 – last line)  Employee must have contributed minimum 13 weeks prior to claim  Contributed 1% (capped at R212 539) of the salary to UIF, employer matches on contribution – monthly  Paid to UIF or to UIF through SARS  LO3: Discuss the categories of benefits as provided for by the UIA and differentiate between the circumstances in which one could claim the following benefits: Unemployment benefits  Becomes temporarily unemployed for more than 14 days, barring resignation  Reasons for unemployment:  Termination by employer  Expiration of fixed-term contract  Sec 186 dismissal excluding misconduct as a reason  Employer’s insolvency  Death of domestic worker’s employer LO3: Discuss the categories of benefits as provided for by the UIA and differentiate between the circumstances in which one could claim the following benefits: Illness benefits  Loss of ability to work for longer than 7 days  May not overlap with adoption/unemployment benefit  See example on page 286  LO3: Discuss the categories of benefits as provided for by the UIA and differentiate between the circumstances in which one could claim the following benefits: Maternity benefits  Employee on unpaid / partially paid maternity leave qualify to apply for payment for up to 17.32 weeks  Includes women who miscarried in third trimester or had a stillborn  Application made within 12 weeks of birth/miscarriage  LO3: Discuss the categories of benefits as provided for by the UIA and differentiate between the circumstances in which one could claim the following benefits: Parental benefits  Available for ten consecutive days when a parental employee who is:  A registered father  Prospective/parent of child below 2 in adoption order/application  Parent of child born of surrogate mother  See p286 for other relevant information  LO3: Discuss the categories of benefits as provided for by the UIA and differentiate between the circumstances in which one could claim the following benefits: Adoption benefits and Commissioning parental benefits  Apply for adoption benefit for a child younger than 2 years, if the leave is taken to look after the child  Adoption benefit recently extend to include prospective parent in adoption application who have child in their care even when a court order has not yet been granted  Same principle applies to surrogacy  Maximum period of claim is 10 weeks  LO3: Discuss the categories of benefits as provided for by the UIA and differentiate between the circumstances in which one could claim the following benefits: Dependents’ benefits  Claimed by dependents/nominated beneficiaries when breadwinner passes on  Within 18 months from date of death  Dependent:  Surviving spouse, life partner THEN child (under 21 years – adopted & stepchildren) LO4: Apply the legal principles governed by the UIA to a set of facts  Pay attention to the details, examples and retain technical terms  PEMA5122 Learning Unit 9 – Social Security Legislation - UIA, COIDA and OHSA Theme 2 – The Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) PM: Chapters 18 &19 & 20 LEGISLATION: The Unemployment Insurance Act 63 of 2001 (UIF), The Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) and The Occupational Health and Safety Act 85 of 1993 (OHASA) [only in so far as it is necessary to meet the learn outcomes contained in this learning unit] CASE LAW: Gunter v Compensation Commissioner 2009 (30) ILJ 2341 (0), Twalo v Minister of Safety and Security and Another 2009 (30) ILJ 1578 (Ck); and Mahlangu and Another v Minister of Labour and Others 2021 (1) BCLR 1 (CC); 2 BLLR 123 (CC).  LO5: Discuss the rationale for and the application of COIDA  Section 24: right to safe working environment and environment promoting personal health and well-being  Common law duty to provide employees with safe working environment  If an employee gets ill/injured as a result of their work, they would be able to claim compensation – as per COIDA since 1 March 1994  The employee would therefore not be allowed to claim from the employer in that case  Application:  The Act applies to all employees and employers except:  Permanent members of SANDF and SAPS  Employed outside of South Africa for 12+ continuous months  Independent contractors  Domestic workers in private households  Mahlangu case – challenging the Constitutionality of exclusion of domestic workers  Higher income earners no longer excluded  Compensation capped at R458 520  p277  LO6: the requirements that must be met in order to qualify to claim from the Commissioner for work-related injuries (“Workman’s Compensation”).  The Commissioner may hold a formal hearing to determine if:  There was employment relationship at time of injury  Injury resulted from an accident  During course of employment – section 22(4) + 22(5) of COIDA  Revisit chapter 2 and 3 content to revise “course and scope of employment” (vicarious liability) and “employment relationship” requirements  p280 LO7: Apply the legal principles governed by the COIDA to a set of facts.  Pay attention to the details, examples and retain technical terms  PEMA5122 Learning Unit 9 – Social Security Legislation - UIA, COIDA and OHSA Theme 3 – The Occupational Health and Safety Act 85 of 1993 (OHASA) PM: Chapters 18 &19 & 20 LEGISLATION: The Unemployment Insurance Act 63 of 2001 (UIF), The Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) and The Occupational Health and Safety Act 85 of 1993 (OHASA) [only in so far as it is necessary to meet the learn outcomes contained in this learning unit] CASE LAW: Gunter v Compensation Commissioner 2009 (30) ILJ 2341 (0), Twalo v Minister of Safety and Security and Another 2009 (30) ILJ 1578 (Ck); and Mahlangu and Another v Minister of Labour and Others 2021 (1) BCLR 1 (CC); 2 BLLR 123 (CC). LO8: Discuss the rationale for and the application of OHSA.  Duty to provide safe and healthy working environment to employee  Protects the health and safety of the following:  Employees at work  Employees using plant machinery, exceptions on page 258 para 2  Non-employees against health and safety hazards arising from work done by employees  P257 p258  LO9: Discuss the general as well as the specific duties of both employers and employees as provided for in the OHSA.  Specific duties of employers (learn specifically listed words in the textbook):  Safe work equipment  Mitigate health and safety hazards  Provide health and safety measure  Ensure employees are educated about health and safety risks….  General duties of employers to other persons, excluding employee  No direct or indirect exposure to health and safety hazards  General duties of employers doing listed work – more hazardous nature  See page 262 for list of thing to consult Health and Safety Committee  General duties of employees p263-246 onwards  Reasonable care  Co-operation  Lawful orders  Reporting risks and incidents (p246) see Dorey case  Be sure to read entire chapter LO10: Discuss the functions of the health and safety representatives, health and safety committees and inspectors.  Monitor compliance with the Act, must be elected from employees  One is appointed for every 100 employees, all other workplaces, 1 per 50 employees  More than one, necessitates a health and safety committee  See 12.3 on page 266 – 267  Labour inspectors control whether employers comply with the Act  They have wide powers to ensure compliance  Unannounced inspections/  Question people  Require explanations from employers  Any other acts reasonably necessary to complete duties  Issue orders instructing employers to stop dangerous practice – compliance order  P266 para 12.2 – para 13 LO11: Apply the legal principles governed by the OHSA to a set of facts  Pay attention to the details, examples and retain technical terms