NEWS  


NATIONAL MINIMUM WAGE AND OTHER SECTORS incl W&R AMENDED EFFECTIVE 01 MARCH 2021
2021/02/10

Dear Clients 

As some of you will recall we wrote about the national minimum wage some time ago.  The background to this was that the minimum wage was intended on being implemented on 01 May 2018 (workers day) and this did not happen. On Friday 23 November 2018 President Cyril Ramaphosa signed the Bill for the National Minimum Wage (“NMW”) into law.  A further background to this is the reason for the national minimum wage is to protect lower earning workers and provides a “platform for reducing inequality”. 

 

The Act set out a minimum of R20 per hour for the majority of workers which slightly increased in 2020.  on the 08th of February 2021 the Minister of Employment and Labour signed and gazetted the latest developments relating to the National Minimum Wage.  


New National Minimum Wage: 

 

The minimum hourly rate for any employee not governed by any other Sector where a Sectoral Determination is applicable is now set at R21.69 per hour (ordinary hours).  


Farm and Domestic Workers


Farm workers rate per hour has also increased to R21.69 per hour whereas Domestic workers rates have increased to R19.09 per hour.  


Public Works Programmes and Learnerships: 


Workers employed on an expanded public works programme are entitled to a minimum wage of R11.93 per hour and learnerships has also been updated as per Section 6(5).  (In the event that you need further information on learnerships or public works programmes please contact us).  


Contract Cleaning Sector: 


This sector has always consisted of two areas.  The first area being: Metropolitan Councils (City of Cape Town, Greater East Rand Metro, City of Johannesburg, Tshwane and Nelson Mandela Bay) and Local Council: (Emfuleni, Merafong, Mogale City, Metsimaholo, Randfontein, Stellenbosch, Westonaria).  These rates has increased to R23.87 per hour, whereas the Rest of the RSA is set at R21.77 (meaning if you do not form part of the Metropolitan or Local Councils mentioned above your rate will be \"the rest of the RSA rate).  


Wholesale and Retail Sector: 

There are further changes to the wholesale and retail sector, and due to the number of positions we will be sharing the gazette with all our Wholesale and Retail clients.  


For any further information please contact one of our consultants.  


Kind regards

Tanya Barnard 

tanyab@yourside.co.za (082 328 7101)

gavinm@yourside.co.za (082 891 7093)

kusile@yourside.co.za (Kusile Office - Nadia 011 609 2630) 






BCEA - Update on Earnings Threshold as at 01 March 2021
2021/02/10

Dear Clients 

Notice has been issued with regards to the recently released determinations made by the Minister of Labour.  The Minister of Labour has recently released the latest earnings threshold with effect from 01 March 2021 (the last change to the earnings threshold was in July 2014)  the earnings threshold for the purposes of the Basic Conditions of Employment Act No 75 of 1997 will be increased to R211 596.30 per annum. This amounts to R17 633.02 per month.


What do earnings mean?

Earnings are defined in the determination as being an employee’s regular annual remuneration before deductions. 


What does Earnings Threshold mean?

For practical purposes this means that with effect from 01 March 2021 only employees who earn in excess of R211 596.30 per annum will be excluded from the provisions of the BCEA pertaining to ordinary hours of work (Section 9), overtime (Section 10), Compressed working weeks (Section 11), averaging of hours of work (Section 12), meal intervals (Section 14), daily and weekly rest periods (Section 15 of the Act) pay for work on Sundays (Section 16), night work (Section 17(2)), and payment for public holidays on which the employee would not ordinarily work (Section 18 (3)). 


Will this affect my employees who earn less than R211 596.30 per annum?

No, Any employee who earns below this threshold amount will be entitled, by law, to continue receiving payments and or benefits provided for in these sections.  Also note that it is yet to be determined if the same threshold will be applied to Sectoral Determinations.  The figure does not apply to Bargaining Councils.  


Should you need any further assistance with the Earnings Threshold please do not hesitate to contact one of our Consultants! 


Kind Regards

Tanya Barnard 

tanyab@yourside.co.za (Tanya - 082 328 7101)

gavinm@yourside.co.za (Gavin - 082 891 7093)

kusile@yourside.co.za (Office - Nadia - 011 609 2630)

Kusile Consulting Services 




NEW CASE DEALS WITH EMPLOYEE WHO REFUSED TO RETURN TO WORK AFTER LOCKDOWN
2021/01/27

Dear Client

Please see article below that was reported on in the BusinessTech forum.  (Take note that this is a copy and paste of the actual article). 

Take note that this article refers to a case that we attended to on behalf of TVR Distribution (one of our clients) at the CCMA, which we successfully opposed the Applicants alleged unfair dismissal.  The matter specifically deals with an employee who refused to report to work after lockdown, with the Employer providing the necessary PPE, Travel Documentation etc.  

In short the Employee was charged with his unauthroised absence from work, his gross insubordination / gross insolent behaviour towards his employer and the CCMA found that the dismissal was substantively fair.  

The Commissioners reasoning for procedural unfairness was because the Appointed Chairperson (the matter was chaired internally) was the person who signed off the notification form / charge-sheet, even though this was not the same person who issued the employee with the notification form.  Purely an administrative error, other than that there were no irregularities in the matter.  You need to ensure that the Chairperson at all times remains impartial and has no knowledge about the case before the time.    

Should you have any questions on the case, on the CCMAs findings (as we have received the award ourselves, being appointed to deal with the matter) please contact Tanya on 082 328 7101 or send an email on tanyab@yourside.co.za

For training queries or quotations please contact our offices for a quote.  Note we do group training and individual training.  

Regards
The Kusile Team
011 609 2630

New case deals with a South African employee who refused to come into work during lockdown

Staff Writer23 January 2021

As South Africa moves into 2021, in the midst of another lockdown and with the spread and effects of the Covid-19 pandemic worse than ever, employers and employees find themselves caught in the balance of what is ‘reasonable’ in unprecedented circumstances.

This was highlighted in the recent CCMA case of Botha v TVR Distribution which showed that Covid-19 does not excuse a refusal to obey a lawful and reasonable instruction, said law firm Cliffe Dekker Hofemyr.

In this case Botha, a sales executive, was dismissed for gross insubordination and insolence after refusing to attend work during the Covid-19 lockdown. The commissioner found that the dismissal was substantively fair but procedurally unfair.

“During the level 5 lockdown, Botha was informed that the company had applied for a certificate from the Companies and Intellectual Property Commission (CIPC) to allow it to operate as an essential service during the lockdown and that he was required to work and present himself at the office to do so.

“Mr Botha refused and provided a laundry list of excuses as to why he could not attend work, these being, among other things, that he hadn’t been provided personal protective equipment, that he had not been given a permit, and that the level 5 lockdown regulations did not permit him to work and he would not break the law.”

Findings

These allegations were shown to be false, said Cliffe Dekker Hofmeyr.

The commissioner found that the company had taken safety precautions, had the necessary personal protective equipment and that the CIPC certificate was sufficient to allow Botha to travel. Ultimately, Botha simply had no intention to attend work.

In coming to the decision, the commissioner considered the evidence and stated with reference to various authors and the Labour Relations Act that:

  • Employees are obliged to respect and obey their employers because lack of respect renders the employment relationship intolerable and disobedience undermines the employer’s authority.
  • Item 3(4) of Schedule 8 Code of Good Practice: Dismissal states that “generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable”.
  • Item 3(5) of Schedule 8 states that “when deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct, consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself”. (Botha reportedly had a history of insubordination and insolence which contributed to the decision of dismissal.)
  • Botha had clearly refused to report for duty on 30 April 2020.

Given the above, the commissioner found that Botha had failed to obey a lawful and reasonable instruction, was insolent and insubordinate in doing so, and that his dismissal was therefore substantively fair.

However, the commissioner further held that the presiding chairperson and Botha had had previous “run-ins”. The presiding officer could therefore have formed a negative opinion of Botha prior to the hearing.

In addition,  Botha was not given an opportunity to provide mitigating factors for his conduct. In light of these findings, the commissioner ruled that the dismissal was not procedurally fair. Accordingly, the employer was ordered to pay one month’s salary to Botha as compensation.

Importance of case 

The takeaway from this case is that employees should not labour under the impression that Covid-19 gives them the automatic and unfettered right to choose which instructions to obey and ignore, said Cliffe Dekker Hofemyr.

“Should an employer issue a lawful and reasonable instruction, even in the midst of a pandemic, the employee is obliged to adhere to it and could face dismissal for failure to comply.

“Employers should, however, still be wary, ensuring that they follow a fair procedure in a disciplinary hearing as a procedural irregularity could result in the employer being ordered to pay compensation, even in instances where dismissal is warranted.”





CONSOLIDATED DIRECTIONS ON OCCUPATIONAL HEALTH AND SAFETY MEASURES IN CERTAIN WORKPLACES
2020/10/03

The Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces, issued on 04 June 2020 by the Minister of Employment and Labour (DEL), are replaced.  The new Direction was signed on 28 September 2020 and published on 01 October 2020.

 

The new Direction follows the content of the previous Direction but has important changes and additions, which are summarized below.

 

There is an emphasis on the collation and analysis of workplace data to prevent the spread and escalation of the pandemic.

 

More emphasis is placed on Risk Assessments and plans for protective measures, with this topic now being itemized as a separate Directive (as opposed to being captured under Plan for the re-opening workplaces, as it previously was).

 

The notable addition is that the plan must now provide for a procedure to resolve any issue that may arise from the exercise by an employee of the right to refuse to work in the circumstances contemplated in Directive 14(1). Directive 14(1) provides for the refusal to work due to exposure to Covid-19, where reasonable justification exists.

 

Under Administrative Measures there are reporting measures placed on employers with more than 50 employees.  Previously, the obligation to submit a record of the risk assessment and a written policy concerning the protection of health and safety of employees from Covid-19 to the company’s health and safety committee and to the DEL, only applied to employers employing more than 500 employees.  This submission must be made by 21 October 2020.

 

The obligation to provide screening and testing data previously only applied to employers employing more than 500 employees (in certain sectors).  All employers with more than 50 employees must now submit data to the NIOH (National Institute of Occupational Health) regarding, inter alia, each employee’s vulnerability status for serious outcomes of a Covid-19 infection, details of the daily symptom screening data, details of employees who tested positive, etc.  Excluding the vulnerability data, the data must be submitted weekly.

 

There is an obvious POPI exposure.  The Directions therefore say the employer must inform the employees of the disclosure.  Accordingly, the data appears to refer to employees only, although the definition of “worker”, as contained in the Directive, includes others working in the workplace.

 

Positive cases must now be reported to the NIOH.

 

The new Direction requires employers to inform the Compensation Commission whenever a “worker” is diagnosed positive.  (It seems as if “employee” should have been used).

 

In the event of an employee exhibiting symptoms the employer must isolate the worker and arrange transportation to a public health facility – namely a testing site.

 

Isolation and self-quarantine periods are reduced to 10 days.

 

Where the circumstances contemplated in Directive 14(1) apply (a refusal to work) the additional requirement is that where the matter cannot be resolved, the employer is obliged to notify an inspector (Section 28 OHSA) of the issue within 24 hours.  The inspector may, in terms of Section 30 of OHSA, issue a prohibition notice.

 

The provisions regarding cleaning of the workplace remain unchanged. Continuous shift systems may thus continue to be affected in terms of the time it takes to sanitize the workplace.

 

Risk assessments, plans and data reporting will require a meticulous method and procedure.


Please call us if assistance is required.

Gavin Mulvenna - 082 891 7093

John Povey - 082 891 7094 

Tanya Barnard - 082 328 7101




Protest Action, Stayaway 7 October
2020/09/30

Dear Clients 


It has come to our attention that COSATU is calling on different forms of protest action for the 7th of October 2020. This protest action / stayaway is protected as COSATU has follow all necessary procedures in terms of Section 77 of the LRA. 


Therefore this means that some of your employees may not be able to report for duty or even partake in this national stayaway / protest action.  What does this mean to the Employer?


Any protest action that complies with the provisions of the Labour Relations Act protects employees from disciplinary action for \"unauthroised absence\", however, there is protection to the employer as well. The employer is not forced to pay the employee who is not at work due to the protest action / stayaway or where an employee partakes in the protest action.  Therefore the rule no work no pay will apply where employees are absent from work.  


For more information on this, please contact one of our consultants. 



Regards 

Kusile Consulting Services 

Tanya: 0823287101

Gavin: 0828917093

John: 0828917094

Office: 0116092630 




COVID-19: South Africa - Extension of TERS benefit to 15 September 2020
2020/09/06

Dear Clients 

On Friday the 04th of September 2020 the Director General, Mr Thobile Lamati announced that the Temporary Employer / Employee scheme (TERS) would further be extended from 15 August 2020 until 15 September 2020.  Take note that the directive extending the benifit has not yet been published and we will advise you of this as soon as we receive it.  

The categories of employees that will claim is the same as those specified in the earlier directive extending the benefit until 15 August 2020. 

Therefore in the event that employers have not yet been permitted to commence operations (either partially or in full) (such as gyms or restaurants), employers who have implemented special measures in respect of vulnerable employees, or for those who are working from home and employees who are unable to render a service either fully or partially because of operational requirements (in particular the need to limit the number of employees in the workplace through, rostering, staggering working hours, shift systems and short time / reduced working time) will be allowed to claim. 

Please therefore contact us in the event that you have any further TERS claims for our offices to assist you with the claiming process.  For any further information on this topic please contact Tanya Barnard / Lauren Parker on 082 328 7101 / 011 609 2630 (tanyab@yourside.co.za // laurenp@yourside.co.za) 

Kind regards  

Kusile Consulting Services 
011 609 2630 
082 328 7101 
tanyab@yourside.co.za
laurenp@yourside.co.za 



Employment Equity updates - Amendment EEA Bill of 2020
2020/08/27

On 20 July 2020, amendments to the bill have been made with the intention to propose to National Parliament.

 

The Employment Equity Amendment bill proposes a number of substantial amendments to the Employment Equity Act, however, the main purposes are to allow the Minister of Labour to establish enforceable sectoral numerical targets to improve equitable representation on all levels of business, and to enhance the administration of the act with the proposed promulgation of section 53.

 

The following chapters are chapter with amendments:

 

Chapter 1  Definitions

 

In Section 1 of the act, the definition of a designated Employer (a company that, by law, has to comply with the EE Act) has been amended by deleting paragraph (b,) which classifies employers with less than 50 employees as being designated based on their annual turnover. This would suggest that the only factor on which we can determine designation is based on the number of employees (being 50 or more).

 

The Definition of the National Minimum wage commission is introduced suggesting that the duties of the Employment Conditions commission have been absorbed by the National Minimum wage commission.

 

 

A definition of the sector is included as an industry or service or part of any industry or service.

 

The Definition of “serve or submit” has been deleted. This definition refers to methods of communication, currently including sending communication in writing, delivering it by hand, delivering it by registered post, transmitting it by use of any electronic mechanism which allows for printing. This would allow the Minister to prescribe by regulation, the methods of communication, submission and service.

 

The definition of persons with disabilities now includes “intellectual and/ or sensory impairment” components which, in interaction with various barriers, can further be affected as a barrier to employment.

 

A definition of ‘the state’ is included as a national or provincial department as defined in the Public Finance Management Act. This is to ensure clarity with the application of section 53 which deals with state contracts.

 

Chapter 2  Prohibition of Unfair discrimination

 

Section 8 of the Act deals with Psychological testing and other assessments, this section is amended by excluding the requirement that psychological tests need to be certified by the HPCSA. This suggests that it is believed that the HPCSA does not have the capacity to certify these assessments/tests and any disputes of such assessments will be evaluated by the Labour Court.

 

Chapter 3  Affirmative Action

 

Section 14 of the act, which dealt with Voluntary Compliance to the EE Act, has been repealed. This suggests that an Employer who is currently deemed as “Non-Designated” cannot notify the Director-General that they will be complying with the act out of their own free will for any reason (such as for tender-related purposes). Chapter 3 will thus only be applicable to Employers with more than 50 employers under the amended definition.

 

Section 15 of the act, which deals with affirmative action measures, has been amended with the proposed inclusion of section 15A subsection 1 – 5.

 

The inclusion of 15A Subsection 1 will allow the Minister to identify and group national economic sectors for the purpose of administration of Employment Equity. Subsection 2 will allow the Minister to establish numerical targets (a headcount target) for Employers in these sectors to ensure equitable representation of suitably qualified people from designated groups. This suggests that Employers will no longer be setting their own targets in line with the Economically Active Population as it is believed that Employers are using self-imposed targets as a “shield” to evade the law by setting low targets and achieving same within a reasonable timeframe.

 

It is proposed in 15A subsection 3 that the Minister may issue a notice in terms of subsection 2 (above) which may set different numerical targets for the 6 occupational levels, or to set specific targets in regions within an economic sector, or, to set targets on the basis of any other relevant factor. Subsection 4 states that a draft of any notice needs to be gazetted and parties must be allowed at least 30 days to comment on the draft notice. This effectively allows the public 30 days per notice to voice their concerns with the proposed notices and/ or legislative changes. Subsection 5 will allow the minister to issue regulations prescribing criteria to be considered when determining a numerical target in terms of subsection 2 above. The minister of labour thus sets the bar for how stringent or radically transformative these targets are, and dispenses judgement on whether they were achieved or not.

 

The inclusion of section 15A is, in our opinion, the most aggressive amendment and seemingly included due to a perceived lack of commitment to transformation.

 

Section 16 has been amended in order to clarify who a designated employer is required to consult with. The proposed amendment is that where there is a representative trade union, the designated employer must only consult with the trade union.

 

Section 20 refers to the Employment Equity plan and has been amended with the proposed inclusion after subsection 2, (2A) “The numerical goals set by an employer in terms of subsection (2) must comply with any sectoral target in terms of section 15A that applies to the employer “. This will ensure that the goals and targets to be set in the Employment Equity plan, are in line with the “set” targets proposed in section 15A.

 

In Section 21, Reports, subsection (1) referring to the October deadline, has been replaced with a very vague section stating that a designated employer must submit a report once a year on such date and in such manner as may be prescribed. This doesn’t leave much room for planning as the deadline is not made clear in the amendment bill. In addition to this subsection 3 and 4 have been deleted and subsection 4A, failure to submit, has been amended to exclude the October deadline.


Section 27, Income Differentials, has been amended to propose a transfer of duties from the Employment Conditions Commission to the National Minimum wage Commission.

 

Chapter 5  Monitoring, Enforcement and Legal Proceedings

 

Section 36, which deals with an Undertaking to Comply has a proposed amendment to include the preparation of an employment equity plan as a criteria for issuing of a written undertaking to comply, should the designated employer fail to do so.

 

Section 37, which deals with Compliance Orders, has been amended to propose that the duties of a labour inspector may also be fulfilled by a person acting on behalf of a labour inspector, thus, permitting the Minister to prescribe the manner in which compliance orders are served. This could lead to an influx of new - labour inspectors.

 

Section 42, Assessment of Compliance, has been amended to clarify that an Employer’s implementation of affirmative action may be measured against the demographic profile of either the national or the regional economically active population (EAP), and to measure whether the employer has achieved any sectoral target set by the Minister in terms of the proposed section 15A. This indicates that if these Sectoral Targets are not met, the employer may be deemed Non-compliant with the act, and face the corresponding consequences.

 

Chapter 6  General Provisions

 

Section 53, State Contracts, is proposed to be promulgated as this section was not promulgated before. Section 53 is proposing that state contracts will only be awarded to Employers who have been certified as being compliant with the Employment Equity Act, an employer will be required to attach a certificate of compliance and/or a declaration by the employer that it complies with the relevant chapters of the act when applying for a contract with the state. A brand-new subsection (6) has been included in section 53 which regulates when the Minister may issue a certificate of compliance with the Employment Equity Act. As per the proposed subsection 6, the below criteria need to be met:

 

  • The Employer met the applicable sectoral targets in terms of section 15A or has provided reasonable and acceptable grounds for non-compliance

 

  • The Employer has submitted its most recent report (section 21)

 

  • The Employer has not been found (within the previous 36 months) to have breached the prohibition on unfair discrimination or failed to pay the national minimum wage in (National Minimum Wage Act, 2017)

 

Section 64, which allowed for the annual turnover thresholds in Schedule 4 to define employers with less than 50 employees as designated, has been repealed.

 

Schedule 4 – Turnover thresholds to determine if an employer is designated, has been repealed.

 

Conclusion:


The proposed bill has been, by far, the most radical and aggressively transformative move by the Department of Employment and Labour to force employers to change their respective employment profiles. The entire introduction of the document is laden with undertones of frustration and implies that employers have found methods of subverting the point of economic transformation, and goes so far as to mention the “Carrot and Stick approach” – signifying an intention to force transformation of junior management/ skilled technical and higher occupational levels in a drastic fashion.

 

  • Inspections will be more frequent due to the ability of inspectors to allow others to act on their behalf when determining compliance

 

  • Employers who are designated by virtue of turnover, with a staff complement numbering less than 50, who operate exclusively in the private sector, will no longer be required to comply with Chapter 3, however, the de-registration process will still apply

 

  • Employers will be forced to employ either a set number or set percentage of staff per level based on targets set by external forces or suffer the effects of being non-compliant

 

  • All Employers that deal with State-Owned Enterprises will require the equivalent of a letter of good standing for Employment Equity, which will entail that they get audited or verified



Draft Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the World of Work
2020/08/26

Labour minister Thembelani Nxesi has published a draft code of good practice on the prevention and elimination of violence and harassment in the workplace in South Africa.


The draft policy, which falls under the Employment Equity Act, and is currently open for public comment, covers a number of areas including Sexual Harassment and Bullying.


The code aims to protect workers and other persons in the world of work, as well as other workers irrespective of their contractual status.


It applies to all sectors, whether private or public, both in the formal and informal economy, and whether in urban and rural areas.

 

The code also applies to the world of work occurring in the course of, linked with or arising out of work, including, but not limited to:

·         In the workplace, including public and private spaces where they are a place of work;

·         In places where the worker is paid, takes a rest break or a meal or uses sanitary, washing and changing facilities;

·         During work-related trips, travel, training, events, or social activities;

·         Through work-related communications, including those enabled by information and communication technologies;

·         In employer-provided accommodation;

·         When commuting to and from work.

 

Some of the key policies included in the draft code are outlined in more detail below.

 

Sexual violence and harassment

The policy defines ‘sexual violence and harassment’ as directly or indirectly engaging in conduct that the perpetrator knows or ought to know is not welcome, is offensive to the complainant and makes the complainant feel uncomfortable and interferes with work, causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person.

 

This includes:

Following, watching, pursuing, or accosting of the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies, or happens to be;

Any unwelcome sexual attention, advances or proposals from a person who knows or ought reasonably to know that such attention is unwelcome;

Unwelcome explicit or implicit behaviour, suggestions, messages, advances, attention, proposals or remarks of a sexual nature that have the effect of offending, intimidating or humiliating the complainant or a related person in circumstances which a reasonable person, having regard to all the circumstances, would have anticipated that the complainant or related person would be offended, humiliated or intimidated, (implied or expressed), the promise of reward for complying with a sexually-orientated request, proposal, advances or attention;

Implied or expressed threat of reprisal or actual reprisal for refusal to comply with a sexually-oriented request, advance, attention, or proposals.

In addition to providing a number of examples, the code sets out a test to be applied for sexual violence and harassment.

The test states that the subjective feelings of the complainant should be evaluated against the objective standard of a “reasonable person /complainant” test which involves how the reasonable person would have reacted in the circumstances.

 

It notes that sexual attention becomes sexual violence and harassment when:

The behaviour is persistent, although a single incident of harassment can constitute sexual harassment;

The recipient has made it clear that the behaviour is considered offensive;

The perpetrator knows or ought to have known that the behaviour is regarded as unacceptable.

 

Racial violence and harassment

Racial violence and harassment is defined as unwanted conduct which is persistent or a single incident which is serious demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to a person’s membership or presumed membership of a group identified by one or more of the prohibited grounds or a characteristic associated with such group.

This includes direct or indirect behaviour which involves issues such as racist verbal and nonverbal conduct, remarks, abusive language, racist name calling, offensive behaviour gestures and racist cartoons, memes, or innuendos.

In applying a test, the code states that racial harassment has to be assessed objectively with reference to the reaction of the normal or reasonable person.

 

In addition, it has to be established on a balance of probabilities that the conduct of complaint was:

 

·         Was unwanted conduct, which

·         Was persistent or serious;

·         Demeaned, impaired dignity, humiliated, or created a hostile or intimidating environment or;

·         Was calculated to induce submission by actual or threatened adverse consequences and;

·         Was related to race, ethnic origin, or a characteristic with such group;

Whether a perpetrator would have spoken the words or behaved in the manner complained of towards the complainant but for the complainant’s race or ethnic origin;

How the alleged perpetrator treats other persons not of the complainant’s racial group or ethnic origin, even if the conduct complained of is race-neutral and whether language or other conduct is considered violence and harassment might depend on the circumstances; and the motives of the perpetrator;

 

The impact of the violence and harassment;

Whether the language or conduct is violence and harassment might depend on the circumstances of the particular circumstances and whether the language and conduct are directed at a particular person(s) and is insulting, abusive and /or derogatory.

 

For more details please contact us.




POPI Act Make sure you are compliant, effective 01 July 2020
2020/07/16

On the 22nd of June 2020 the President announced the POPI Act will come into effect on 01 July 2020, excluding the sections that have already commenced and those only due to commence 30 June 2021.  Organisations will have 12 months to comply with the conditions for the lawful processing of personal information.  An administrative fine or even imprisonment could be the penalty if you do not comply with the Act.  All businesses that process information must ensure that they comply with the POPI Act by the 01st of July 2021. 

 

The POPI Act was signed into law in 2013 but did not take full effect at the time.  The Act provides that everyone has the right to privacy. Individuals processing personal information need to understand the requirements of the Act, for example, externally would be how a client’s information is being processed and internally would refer to how employees personal information is being processed.  Companies will no longer be able to keep your personal information on their databases indefinitely.

 

We can assist you in making sure that you are compliant to the Act, please give us a call to assist you.

 

For more information contact the Kusile Team.

 

Gavin Mulvenna                     gavinm@yourside.co.za                     0828917093

John Povey                             john@yourside.co.za                         0828917094

Tanya Barnard                        tanyab@yourside.co.za                      0823287101




NEW CONSOLIDATED DIRECTIONS ON OCCUPATIONAL HEALTH AND SAFETY
2020/06/06

Dear Clients

 

Please be advised that the DEL has issued new, consolidated Directions on Occupational Health and Safety on 04 June 2020.

 

There are some significant additions regarding \"Worker Obligations\" and on exposure in the workplace to another worker who has been diagnosed with COVID-19.

 

The content thereof would need to be taken account of and policy and plans amended as necessary.

 

Please call if assistance is needed

 

Kind Regards

 

The Kusile Team

 

Gavin Mulvenna         gavinm@yourside.co.za                     0828917093

John Povey                 john@yourside.co.za                          0828917094

Tanya Barnard            tanyab@yourside.co.za                      0823287101




Level 3 - Employee Permit
2020/05/31

Dear Clients

With the commencement of Alert Level 3 please be advised that per clause 33 (4) (a) of the Regulations published under Section 27(2) of the Disaster Management Act,2002 an employee must still be in possession of a permit issued by the employer to attend at work (FORM 2 of Annexure A to the Regulations of 29 April 2020). At one stage the understanding appeared to be that no such permits would be required under Alert Level 3.

Kind regards
KCS 



Commission for Employment Equity
2020/05/15

Dear Employers 

See attached important information from the Department of Labour\'s website, (take note its a copy and paste).  


Attention:  All Assigned EE Senior Managers

 

Designated employers

IMPORTANT NOTICE: GUIDANCE REGARDING THE RESPONSE TO THE IMPACT OF COVID19 CORONAVIRUS PANDEMIC ON THE IMPLEMENTATION OF EMPLOYMENT EQUITY IN THE LABOUR MARKET

The Commission for Employment Equity (CEE) as per Section 30 of the Employment Equity Act of 1998 (the EEA), is mandated to advise the Minister on codes of good practice, regulations, policy and any other matter concerning the EEA.

The CEE recognises the catastrophic impact of the COVID19 on the various sectors of the economy, including the threat posed by the pandemic on the economic growth, job creation and retention.

The CEE acknowledges the fact that it will be business unusual as all organisations will be exploring various COVID19 Response and Recovery Plans with regard to Business Continuity.

Therefore, in the midst of all the organisational configuration processes, the CEE concedes that it would be inevitable that the achievement of the initially planned annual employment equity targets would not be left unscathed.

In response to the inevitable consequences of the COVID19 on organisations and in particular, on the implementation of employment equity in the various workplaces, the CEE request all designated employers to take into account the following guidelines:

1. All employers are reminded that they are still legally obligated to comply with all the provisions of all employment laws during their organisational restructuring/ configuration processes to ensure that there is no unfair treatment and unfair discrimination policies and practices against all employees.

2. All designated employers are requested to strive not to reverse the previously attained transformation gains, including to where reasonably practical, achieve their initially planned annual EE targets for 2020. In instances that it is practically not possible to maintain and achieve the initially planned EE targets, the employers may consider reviewing and amending their EE Plans in consultation with the EE Consultative Forums (Section 16 read with 17 of the EEA), but must document all the reasons for the changes as prescribed in the Employment Equity Regulations, 2014.

 

3. All designated employers are still required to submit their annual EE Reports as prescribed by Section 21 of the EEA and the EE Regulations, 2014 from 1 September 2020 until 15 January 2021. This EE data is critical in assessing the impact of the COVID19 on the transformation agenda of the labour market and society as a whole. There is no legal provision for exemptions, condonations or appeals in the EEA for submission of EE Reports.

4. However, in instances where the designated employer is unable to submit an EE Report as per Section 21 of the EEA, such an employer must notify the Director-General of Department of Employment and Labour in writing with reasons before the last working day of August of 2020 as prescribed by Section 21(4A) of the EE Amendment Act, 2013 and the EEA14 form in the EE Regulations, 2014.

The reasons that can be advanced as per the EEA14 form, include, Section 197 of the LRA; Mergers/ Acquisitions; Labour Court Order; Liquidations/ Judicial Winding; Insolvency; and Other reasons (e.g. employer no longer designated because of size and/ turnover, or company closed down because of retrenchments, or company under business rescue, etc.).

All completed EEA14 forms must be accompanied by supporting documents as proof ntsoaki.mamashela@labour.gov.za

lucia.rayner@labour.gov.za; tshililo.siobo@labour.gov.za;

 

Before the last working day of August 2020. Guidelines on how to process DG Notifications and the EEA14 form are available on www.labour.gov.za


(Report from the Commission of Employment Equity)




REQUIREMENTS FOR A TRADING CERTIFICATE CIPC
2020/05/07

Dear Client

Please see the CIPC website for the requirement for a certificate under Level 4. This is a separate requirement to FORM 2 issued by the CEO.

Kind regards

 

The Kusile Team

Gavin Mulvenna (IR/ER Consulting) -   gavinm@yourside.co.za;              082 891 7093

Tanya Barnard (IR/ER Consulting)   -    tanyab@yourside.co.za;              082 328 7101

Petronella Mofokeng (HR Consulting)   petronellam@yourside.co.za;      082 870 2402

Lauren Parker (Payroll) -                       laurenp@yourside.co.za;             084 840 2399 

John Povey (Senior Consultant)           john@yourside.co.za;                   082 891 7094

Nadia Pearce (Admin / Queries)           kusile@yourside.co.za;                071 986 4961




OHSA MATTERS - COVID-19 - POST-LOCKDOWN
2020/04/28

Compliance inspections are being conducted by Labour Inspectors during the lockdown, in businesses continuing to remain open as essential services. We have all seen the press releases on businesses being closed due to non-compliance.

 

It is anticipated that these inspections will, for many months, continue and be escalated post the lockdown, in respect of all businesses and sectors.

 

It is important to start preparing the necessary policy and procedure and putting plans in place so that when operations resume, the company is compliant and prepared for the inspections. Some processes, for example such as hazard identification and risk assessments, can only be conducted in consultation with health and safety committees but planning should commence now. The Directions are lengthy and onerous.

 

It appears that the Labour Inspectors are focusing on the Hazardous Biological Agents Regulations, Risk Assessments, Hygiene Protocols and Protocols on managing workplace testing, positive test results and related issues. 

 

The State of National Disaster of course continues beyond the end of the lockdown.  Accordingly all regulations, and amendments thereto, promulgated before and during the lockdown, continue to apply (until further amended or lifted).

 

The mind-set should thus always be of an ongoing pandemic and state of National Disaster – as opposed to a mind-set that everything hinges (or hinged) upon the lockdown.  In fact, post the lockdown, there will, with the opening of business and the interaction of people in the workplace, be even more need, not only to ensure compliance with all relevant laws and regulations, but to ensure, as far as reasonably practicable, the health and safety of all employees, and to be proactive in this regard, prior to the lifting of the lockdown.

 

The starting point is the Occupational Health and Safety Act and its relevant regulations.

 

But the regulatory framework does not end there.

 

Reference is required to be made to various regulations and directives issued by the Department of Employment and Labour, the Department of Health, the NICD, the WHO and, of course, the regulations promulgated under the National Disaster Act itself.

 

The impact of Covid-19 will manifest itself and impact on the employment relationship in a myriad of ways.

 

Employee wellness, various leave provisions, absence from work and the question of payment, testing, quarantine, reduced working time, restructuring, incapacity cases and potential closure of the business in the event of non-compliance and / or positive test results, are but some of the examples raising practical considerations and the need for informed, lawful and fair strategies and decisions.

 

 

Without a clear policy, as the foundation, there can be no plan.  Without a clear policy, the risk of non-compliance is obviously increased.

 

The nature of each employer’s business, the sector, and its workplace will determine the critical policy content and specific hygiene protocol, practice and procedure.

 

Being proactive in policy design is of paramount importance.

 

Please contact us.  We are available to assist in the assimilation of all the regulatory requirements, and in your policy compilation and implementation.

 

Please call us for a quotation.


 

Kind regards

 

The Kusile Team

Gavin Mulvenna (IR/ER Consulting) -   gavinm@yourside.co.za;              082 891 7093

Tanya Barnard (IR/ER Consulting)   -    tanyab@yourside.co.za;              082 328 7101

Petronella Mofokeng (HR Consulting)   petronellam@yourside.co.za;      082 870 2402

Lauren Parker (Payroll) -                       laurenp@yourside.co.za;             084 840 2399 

John Povey (Senior Consultant)           john@yourside.co.za;                   082 891 7094

Nadia Pearce (Admin / Queries)           kusile@yourside.co.za;                071 986 4961




COVID 19, DEL PPE REGULATIONS
2020/04/24

Dear Clients 


Further to the guidelines issued by the DEL on 17 March 2020 further measures that must be taken by employees to protect the health and safety of workers and members of the public who enter the workplace include the following.

 

The OHSA, and in particular the Regulations regarding Hazardous Biological Agents and the Environmental Regulations must be strictly complied with to ensure, as far as is reasonably practicable, a working environment that is safe.

 

  • · Risk assessments are to specifically focus on the hazard posed by Covid-19;
  •  
  • · Employees must be notified that if they are sick they must not come to work and must take paid sick leave;
  •  
  • · A manager must be appointed to address workplace Covid-19 concerns;
  •  
  • · As far as practicable minimizing the number of employees in the workplace through isolation, staggered shifts etc., in order to achieve social distancing;
  •  
  • · If a worker is diagnosed with Covid-19 the employer must advise the DOH and the DEL;
  •  
  • · Ensure social distancing to a minimum of 1.5 metres or where possible create a physical barrier;
  •  
  • · Supply PPE where necessary, free of charge;
  •  
  • · Implement screening mechanisms to ascertain if any employee, on arrival at work, shows any of the symptoms and require employees to report to the employer if they are experiencing the symptoms;
  •  
  • · If an employee presents with the symptoms or reports the symptoms, the employer must not permit the employee to enter the workplace, or if at work, isolate the employee and transport the employee for self-isolation or medical testing;
  •  
  • · Disinfect the work area in question and refer those employees who may be at risk for screening;
  •  
  • · Place the employee on sick leave or, if, sick leave is exhausted, utilize the UIF illness benefit.  This is novel in that it appears as if sick leave can be utilized without a medical certificate, which in the circumstances would be practical;
  •  
  • · An employee diagnosed with Covid-19 may only return to work if medically evaluated and tested negative;
  •  
  • · Supply adequate hand sanitizer;
  •  
  • · Regular surface cleaning and ablution cleaning;
  •  
  • · Employees interacting with the public are instructed to sanitize their hands between each interaction with the public;
  •  
  • · All employees to be issued with cloth masks free of charge and the employer should, if practicable, arrange for the laundry of the masks;
  •  
  • · Where appropriate undertake screening measures for members of the public accessing the workplace, and to wear masks;
  •  
  • · Keep the workplace well ventilated.

 

We will keep clients updated on the final regulations.


Kind regards 


The Kusile Team 





OHSA MATTERS COVID 19 POST LOCKDOWN
2020/04/23

Dear Clients 


Compliance inspections are being conducted by Labour Inspectors during the lockdown, in businesses continuing to remain open as essential services.

 

It is anticipated that these inspections will continue and be escalated post the lockdown, in respect of all businesses and sectors.

 

The employer is required to ensure a safe workplace, as far as is reasonably practicable.

 

Guidance as to the “level of risk”, as determined by, inter alia, the “Occupations at Risk”, as outlined in gazetted “Notice on Compensation for Occupationally-Acquired Covid-19”, under COIDA must be followed.

 

It is important to start preparing the necessary policy and procedure and putting plans in place so that when operations resume, the company is compliant and prepared for the inspections. Some processes, for example such as hazard identification and risk assessments, can only be conducted in consultation with health and safety committees but planning should commence now.

 

It appears that the Labour Inspectors are focusing on the Hazardous Biological Agents Regulations, Risk Assessments, Hygiene Protocols and Protocols on managing workplace testing, positive test results and related issues.

 

NATIONAL STATE OF DISASTER

 

The outbreak of the pandemic in South Africa led to the State President’s declaration of a State of National Disaster under the National Disaster Act, 2003.

 

With the replied spread of the coronavirus, the national lockdown was declared on 23 March 2020, from 26 March to 16 April 2020, and thereafter, extended to 30 April 2020.

 

The State of National Disaster of course continues beyond the end of the lockdown.  Accordingly all regulations, and amendments thereto, promulgated before and during the lockdown, continue to apply (until further amended or lifted).

 

The mind-set should thus always be of an ongoing pandemic and state of National Disaster – as opposed to a mind-set that everything hinges (or hinged) upon the lockdown.  In fact, post the lockdown, there will, with the opening of business and the interaction of people in the workplace, be even more need, not only to ensure compliance with all relevant laws and regulations, but to ensure, as far as reasonably practical, the health and safety of all employees and to be proactive in this regard, prior to the lifting of the lockdown.

 

THE REGULATORY FRAMEWORK

 

The starting point is the Occupational Health and Safety Act and its relevant regulations.

 

But the regulatory framework does not end there.

 

Reference is required to be made to various regulations and directives issued by the Department of Employment and Labour, the Department of Health, the NICD, the WHO and, of course, the regulations promulgated under the National Disaster Act itself.

 

EMPLOYMENT LAW

 

The impact of Covid-19 will manifest itself and impact on the employment relationship in a myriad of ways.

 

Employee wellness, various leave provisions, absence from work and the question of payment, testing, quarantine, reduced working time, restructuring, incapacity cases and potential closure of the business in the event of non-compliance and / or positive test results, are but some of the examples raising practical considerations and the need for informed, lawful and fair strategies and decisions.

 

POLICY DESIGN AND IMPLEMENTATION

 

Without a clear policy, as the foundation, there can be no plan.  Without a clear policy, the risk of non-compliance is obviously increased.

  

WE ARE HERE TO ASSIST

 

The nature of each employer’s business, the sector, and its workplace will determine the critical policy content and specific hygiene protocol, practice and procedure.

 

Being proactive in policy design is of paramount importance.  Please contact us.  We are available to assist.


Kind Regards 


The Kusile Team 


Gavin Mulvenna             gavinm@yourside.co.za        0828917093

John Povey                    john@yourside.co.za             0828917094

Tanya Barnard               tanyab@yourside.co.za         0823287101

 




Finally some clarity on the use of annual leave during Lockdown
2020/04/20

Dear Clients 

 

The quagmire of uncertainty as to whether “leave pay” equates to “pay”, for the purposes of the Covid-19 TERS application, and whether or not “set off” is permitted, has warranted a further Directive from the DEL. The fact that there was no clarity, is manifested in the very necessity to issue a further Directive (as at 16 April 2020).

 

Because of the uncertainty, and the view that if leave was utilized then the employee bore the brunt, so to say, of the effect of the pandemic (where the pandemic caused the closure, or partial closure, of the business) leave arrangements were reversed, or consideration was given to reversing leave arrangements and reinstating leave. Rightfully so, given the fact that the DEL’ sentiments came from the Minister of Employment and Labour.

 

The DEL’s (publicized) sentiment or message was that leave should not be utilized.  This despite the signed DEL Directive of 26 March 2020 confirming or reiterating the law that leave may be utilized at a time as determined by the employer. That sentiment implied that leave pay may not form part of “payment” as the use of leave itself was said to be “prohibited”. If there was such a prohibition, then leave pay would not feature, as there is no use of leave in the first place. The use of leave is, and has been, lawful-as is reiterated in the said Directive. It was only the (separate) question whether leave pay equals pay that was unanswered.

 

Section 5.3 of the Amended Covid-19 TERS Directive of 08 April 2020 clearly provides for an addition, not a set off. That addition is between pay (i.e. ordinary pay) and the value of the benefit.  Whatever the employer can afford to pay, and pays, as “ordinary” pay, then that “ordinary” payment does not disqualify the receipt of the benefit to the extent that the two added together do not exceed the employee’s remuneration, which would have been received if working, for the period in question.

 

Also, the words “remuneration” and “working” clearly suggest that leave pay is not contemplated by Section 5.3.

 

It could not, in the absence of the amendment, be said that set off is permitted, in terms of leave. The Directive as at 08 April 2020 speaks to neither leave/leave pay, nor to set off in terms of leave. Stating that leave can be used and the benefit claimed and set off, and hence that leave need not be reversed, when simultaneously stating that the clarity was in fact needed, is somewhat of a contradiction.  One can only say that set off is permitted in terms of leave pay – because of the clarity now provided.

 

We have, prior to the second Directive of 08 April, previously said leave pay is not equals to “pay” (on a literal interpretation). With the issuing of the second Directive, and in terms of an interpretation of Section 5.3, it was said that the use of leave should not disqualify the TERS claim, but only if “any additional payment” included leave pay. The uncertainty continued to prevail.

 

On a close analysis of the wording of Section 5.3, leave pay is indeed not equals to “pay”. The wording of Section 5.3 also, as noted, does not provide for set off.  It does not so provide because it (Section 5.3) talks to ordinary pay, not to leave pay.

 

Section 5.3 stays as it is – as it relates only to ordinary pay. The reason it stays as is, is because leave pay is not the equivalent of pay. Section 5.3, as noted, provides for an addition, in terms of ordinary pay, not for (any) set off.

 

Because of the clarity leave is now specifically and separately dealt with – because it is now “confirmed” that leave pay is not equals to pay, and that there may be set off in terms of leave.

 

In the absence of ability to set off where leave is used, the employee bore the brunt.  Set off only applies to the use of leave – per the new provisions – the leave used is credited to the extent of the benefit used.

 

The much needed amendment now (as at 16 April) thus allows for set off in terms of leave used – in the sense of crediting the leave used to the value of the benefit received in the future – i.e. the employer may retain (i.e. set off) the benefit, provided that it credits the employee with leave days proportionate to the value of the benefit.

 

Prior to the latest Directive, if leave was used (at 100% of the value – which is obviously the case, for as long as leave remained available) and if leave pay equalled pay (which it does not), then the employee would not be entitled to the benefit when having used leave. But, then the employee has forfeited leave.  Hence the amendments, to specifically allow for set off, where leave has been utilized, which Section 5.3 does not (since 08 April) permit, and does not need to permit.  Leave, accrued and negative, runs out.  The new directive does not talk to negative leave.  By deduction the Directive applies to both.

 

Leave therefore had to be provided for and dealt with separately in the latest Directive, outside of Section 5.3.

 

The new clause 2.1.1(a) provides for the payment of benefits to contributors who have lost income OR who have been required to take annual leave, due to the pandemic.

 

The new clause 3.3 describes the reason for closure of the business as the need for social distancing, as opposed to “as a direct result of the pandemic\\\\\\\". The criterion is thus even broader.

 

Clause 5.4 is added, specifically to deal with leave-where the employer has required the employee to take leave during the lockdown in terms of Section 20(10) of the BCEA then the employer may set off any amount received from the UIF in respect of the employee’s benefit against the amount paid to the employee in respect of annual leave, provided that the employee is credited with the proportionate entitlement to paid annual leave in the future.

 

The amendment means there is no need to reinstate leave and make the period unpaid leave, (rather impractical if the leave pay is already paid).

 

The idea of using leave came into the picture from a pragmatic stance-on the eve of the lockdown, when the luxury of time did not exist. It was either no (ordinary) pay, or the use of leave. The first Covid-19 TERS benefit (25 March 2020) said if the employee receives any pay then the benefit is disqualified. Even more reason to use leave at the time (if the employer was taking account of the (first) Directive). The second TERS benefit (08 April 2020) permits ordinary pay, with the addition of the benefit if the ordinary pay is not 100%, and to the extent permitted. The TERS benefit of 08 April provided for no set off. Leave arrangements had been put in place long before 08 April 2020-when the debate as to whether leave pay equals pay arose.

 

Where leave arrangements have, because of the uncertainty and the general sentiment against the use of leave, been reversed in favour of a loan, the use of a loan is still a very “clean” option and there is no need to now consider reversing loan arrangements back to leave arrangements.

 

The latest Directive urges employers to pay the benefit in advance (which implies that the employer knows how to calculate the benefit for each employee) and then retain those amounts when payment is received.

 

On a tax note there has been uncertainty if the TERS benefit is exempt from income tax. SARS has confirmed that because TERS payments are made in terms of the UIA, they are exempt from income tax. The employee is the recipient of the benefit. The employer merely processes the benefit on behalf of the UIF. The benefit does not constitute in remuneration and TERS payments should not be reflected as remuneration on the payslip and should also not be included in PAYE submissions to SARS.


(Note that this update constitutes in information and not in legal advice).

 

Kind regards

 

The Kusile Team

Gavin Mulvenna (IR/ER Consulting) -   gavinm@yourside.co.za;              082 891 7093

Tanya Barnard (IR/ER Consulting)   -    tanyab@yourside.co.za;              082 328 7101

Petronella Mofokeng (HR Consulting)   petronellam@yourside.co.za;      082 870 2402

Lauren Parker (Payroll) -                       laurenp@yourside.co.za;             084 840 2399 

John Povey (Senior Consultant)           john@yourside.co.za;                   082 891 7094

Nadia Pearce (Admin / Queries)           kusile@yourside.co.za;                071 986 4961





FURTHER GAZETTED CHANGES
2020/04/08

Dear Clients

Further to our snippet dated 07 April 2020 herewith further changes that were gazetted today.  As previously advised a further gazette was anticipated either today or tomorrow.  Significant clarity has now been obtained. 

 

LATEST CHANGES

We have previously advised that the National Disaster Benefit was absorbed into COVID-19 TERS.  Given the new definition of “Scheme”, which means the Covid-19 temporary relief scheme, this would still appear to be the case.  (We will update here if necessary).

 

The previous clause 3.1 referred to the employer closing as a “direct result” of the Covid-19 pandemic.  The new clause 3.1 refers to “as a result of” the Covid-19 pandemic.  The omission of the word “direct” is significant.

 

Also, the new clause 3.1 refers to the business closing, or “part of its operations” closing for three (3) months or a lesser period- then such employer may apply in terms of COVID-19 TERS.  It is significant in that not the entire business need be closed. This is further borne out be the new definition of “temporary lay-off” which means… a reduction in work following a temporary closure of business operations, whether total or partial, due to Covid-19 pandemic for the period of the National Disaster.  (This may render the Reduced Working Time benefit unnecessary).

 

Furthermore, the reference to “distress” in clause 3.1 has been removed. Distress therefore is no longer a requirement.

 

Further clarity is that the previous reference to “salary benefits”, when calculating payments, has been replaced by “salary”. (Clause 3.4). It is therefore clear that the salary utilised to calculate the benefit, will be capped at a maximum amount of R17712.00, IE 38% of R17712.00=R 6730.00.

 

One of the first Easy-Aid guides indicated that the national minimum wage of R3500.00 would be payable as the minimum. This then changed to a “sector minimum”, and thereafter this was changed to a minimum of R166.08 per day in all “other sectors”. The latest gazette reverts to the minimum of R3500.00, regardless of the “sector minimum”. 

 

The gazette now states that “an employee shall receive a benefit of R3500.00”.  Therefore, the minimum that would be received is R3500.00. 

 

The latest gazette now confirms that where an employer falls under a Bargaining Council (which has made application to the Unemployment Insurance Fund on behalf of its members, in terms of a collective agreement) then such employer may not make an application itself and may not receive money directly.  Such applications will be made via the Bargaining Council.

 

Clause 5.3 of the directive has also been changed.  Previously the directive provided that “an employee who is being paid by the employer during this period is not entitled to this benefit”. The latest gazette permits payment by the employer, insofar as the payment the employer makes, plus the payment received from the benefit, is not more than the ordinary remuneration that the employee would have received. Making a payment is thus no longer a disqualifying factor. 

 

The issue of the use of annual leave has been most confusing.  A directive dated 26 March 2020 indicated that annual leave could be used, however, the directive also stated that employers were not encouraged to use annual leave.  Our interpretation, given the new clause 5.3, is that where an employer has required an employee to take annual leave, then the claim under Covid-19 TERS would not be disqualified.  Where the employer has paid (be that “pay” or, in our view, leave pay) the employer may retain the benefit, to the extent of the value paid to the employee.

 

We are assisting numerous clients with the submission of the claiming process in terms of COVID-19 TERS and would gladly assist with your application to.  Please contact Tanya 0823287101 or Lauren on 084 840 2399.

 

(Note that this update constitutes in information and not in legal advice).

 

Kind regards

 

The Kusile Team

Gavin Mulvenna (IR/ER Consulting) -   gavinm@yourside.co.za;              082 891 7093

Tanya Barnard (IR/ER Consulting)   -    tanyab@yourside.co.za;              082 328 7101

Petronella Mofokeng (HR Consulting)   petronellam@yourside.co.za;      082 870 2402

Lauren Parker (Payroll) -                       laurenp@yourside.co.za;             084 840 2399 

John Povey (Senior Consultant)           john@yourside.co.za;                   082 891 7094

Nadia Pearce (Admin / Queries)           kusile@yourside.co.za;                071 986 4961

 




COVID 19 TERS BENEFITS VERSUS REDUCED WORKING TIME (SHORT TIME)
2020/04/07

Dear Clients

 

We are in the process of assisting clients with their Covid-19 TERS applications. We have decided to provide you with some detail to the two processes involved.

 

Covid-19 TERS Benefit

 

As previously communicated Covid-19 TERS is the temporary employer / employee relief scheme introduced where companies close as a direct result of Covid-19. This scheme has (or seems to have) absorbed the NDB (National Disaster Benefit). The NDB was established as a direct result of the pandemic, but before the lockdown. Covid-19 TERS was launched as a result of the lockdown-but it talks to a period linked to the pandemic, not only linked to the period of the lockdown.

Both the NDB, and thereafter the Covid-19 TERS benefit, apply to closure of the business, as a direct result of Covid-19, during and outside of the national lockdown. It is thus not a case of one benefit applying at times outside the lockdown and one applying during the lockdown. Furthermore there is no online application facility for NDB separate from the Covid-19 TERS online application facility. The Covid-19 TERS application must therefore be utilized.

An employer in financial distress may apply to the Unemployment Insurance Fund in terms of Covid-19 TERS for a “wage subsidy”.  The criterion is that the business is closed. The Department of Employment and Labour (DEL) would determine the amount payable to each employee affected by the national state of disaster. 

The UIF works on a sliding scale and higher earning employees may receive a benefit based on 38%, whereby lower earning employees may receive a benefit based on 60%.  Higher earning employees’ claims will be capped at R17712. Therefore, by way of example, if the employee earns R20 000 per month, the claim will be calculated with the employee’s highest earning being R17712 per month. On this figure and using the calculation at 38%, the maximum payment would be R6730.00 It has further been published that the lowest rate that will be payable will be the “minimum per sector”.

 

This has been established to be R166.08 per day (lower earning employees)-for all sectors (excluding domestic workers, farm workers and special public works). In other words statutory minimum rates, as are for example provided for in bargaining council agreements, do not apply.  The R 166.08 per day, equates to R 3598.95 per month. The new NMW is R20.67 per hour. R20.67X40X4.333 equals R 3598, 39. (The difference in cents is not material as it depends on the number of recurring decimals).

 

The NDB used R3500.00 per month as the minimum rand figure claimable under the NDB benefit. Clearly therefore the R3500.00 no longer features in the equations, and, furthermore, it decidedly does not feature in the sense that one can claim R3598.95 and R 3500.00 (i.e. R 7098.95).

 

Reduced Working Time / “Short time”

 

Where the employer has to implement a reduced working time, also known as “short time”, then a claim may be made under the Reduced Working Time benefit, which benefit has existed for some time prior to the pandemic and is thus not because of the pandemic. The Reduced Working Time benefit is not contingent upon the pandemic or the lockdown. It is applicable where the “short time” or closure of the business is due to economic reasons. Of course these economic reasons could in turn have been caused by the pandemic-before, during and after the lockdown.

If the company is closed as a direct result of the pandemic (the criterion is not as a direct result of the lockdown) and it does apply under Covid-19 TERS, then for this period, which period is a maximum of 3 months, and which period is NOT necessarily the duration of the lockdown (a lockdown is a restriction on movement which in turn causes the business to close for a specific period under the Disaster Management Act and because of State action), the Reduced Working Time benefit may not be applied for.

This is because the Easy-Aid Guide on the NDB says that the employer cannot apply for the NDB (in our view now Covid-19 TERS) and any other UIF benefit (like the Reduced Working Time benefit) simultaneously. On this basis the Reduced Working Time benefit cannot be applied for where the Covid-19 TERS benefit has been applied for. The converse would also apply. If the business needs to implement short time or to close, and has not utilized the Covid-19 TERS benefit, then the Reduced Working Time benefit can be used, as it applies to not only reduced working hours, but also to closure of the business-per se, and not contingent upon the pandemic. The Reduced Working Time benefit thus applies regardless of the lockdown and before, during and after the lockdown-if the Covid-19 TERS application has not been made. Employers must make a choice. They cannot claim under both benefits at the same time. In the circumstances and given the Covid-19 TERS online application facility, and the fact that the Covid-19 TERS benefit is delinked from the credit system under the UIF Act, whereas the Reduced Working Time benefit is linked to the credit system under the Act, Covid-19 TERS seems to be the best option given the intended turnaround time.

What is not clear is whether the Reduced Working Time benefit would apply where the business is closed, and the Covid-19 application has been made, but some employees continue to work, but on short time. From a practical stance (and in the absence of any Covid-19 application) the Reduced Working Time benefit should apply to these employees. However, for the reasons given above, the Reduced Working Time benefit cannot be applied for, as then the applications would run simultaneously.

The Reduced Working Time benefit is a manual submission as opposed to the online facility for the Covid-19 TERS application.  The forms include UI19, UI2.7, UI2.1, UI2.8 (where possible alternatively proof of the employee’s bank account), a letter from the Employer regarding reduced work time and a copy of the Employee’s ID.  


For further information please contact Gavin 0823287101 / Tanya 0823287101 or Lauren on 0848402399.    

 

We will keep our clients up to date with the changes in legislation as soon as we receive any information.  


Kind Regards

Kusile Consulting Services 




TERS APPLICATION (TEMPORARY EMPLOYER/EMPLOYEE RELIEF SYSTEM)
2020/03/27

Dear Client 

 

In terms of Section 8 of the National Disaster Regulation 10 the Minister of Employment and Labour issued a directive to address, prevent and combat the spread of the COVID-19.  One of the steps in terms of the National Disaster Regulation is to assist through the Department of Labour – the Unemployment Insurance Fund in terms of the Employer / Employee Relief Scheme. 

 

Whilst a state of disaster was declared and a national lock-down the instruction to all of South Africa, many small businesses are affected by this national lock-down. Whilst Employers were encouraged to pay Employees during the lock down period (where possible), it proved difficult.  As a result, employees were compelled to take leave in an attempt not to lose income. The Department of Labour, acknowledging that it is not economically possible for Employers to continue paying Employees whilst they are not working, the Department of Labour then created a special benefit under the Unemployment Insurance Fund called TERS.  

 

Employers under lockdown who might require financial assistance form UIF should access information regarding available funding through a dedicated mailbox being covid19ters@labour.gov.za

 

How the scheme works 

 

Ø  Should an employer as a direct result of Covid-19 pandemic close its operations for three months or lesser period and suffer financial distress, the company shall qualify for a Covid-19 Temporary Relief Benefit (TERS);

Ø  The benefit shall be delinked from the UIF’s normal benefits and therefore the normal rule that for every four days worked, the employee accumulates a one-day credit and the maximum credit days payable is 365 for every four years will not apply;

Ø  The benefits will only pay for the cost of salary for the employees during the temporary closure of the business operations;

Ø  The salary benefits will be capped to a maximum amount of R17,712 per month, per employee and an employee will be paid in terms of the income replacement rate sliding scale (38%-60%) as provided in the Unemployment Insurance Act;

Ø  Should an employee’s income determined in terms of the income replacement sliding scale fall below the minimum wage of the sector concerned, the employee will be paid a replacement income equal to the minimum wage of the sector concerned;

Ø  For the company to qualify for the temporary financial relief scheme, it must be registered with the UIF, must comply with the application procedure for the financial relief scheme, and the company’s closure must be directly linked to the Covid-19 pandemic.

 

Once this email is sent an automated email will be received asking for the following information. 

 

Step 1: (Key Documents required)

Ø  Letter of authority, on an official company letterhead granting permission to an individual specified to lodge a claim on behalf of the company

Ø  MOA (completion of the agreement between UIF, Bargaining Council and Employer)

Ø  Prescribed template that will require critical information from the employer

Ø  Confirmation of bank account details in the form of certified latest bank statement

Ø  Evidence / payroll as proof of the last three months employee(s) salary(ies)

 

Step 2: (Submission Process)

 

All documents must be attached to the email and should be sent to: Covid19UIFclaims@labour.gov.za

 

Further, ensure correct completion of documents needed and take care when indicating the National Minimum wage. This is crucial and incorrect stated values might result in serious delays in the processing of the benefit payments. 

 

The means to payment is critical and provide banking details as per the mode selected, for example, if the payment should go to the employer, then the employer special banking account should be given.

 

However, proof of payment is required to satisfy that the payments indeed went to the employees. This is also critical, if further payments are required.   There is a prescribed template that needs to be completed. 

 

The file should be exported in CSV format (with pipe delimiter) from the payroll system showing the following:

 

Ø  UIF Reference number;

Ø  Shut down period from (date);

Ø  Shut down period to (date);

Ø  Trade Name;

Ø  PAYE Number;

Ø  Contact numbers;

Ø  Email address:

Ø  ID Number;

Ø  First Name;

Ø  Last name;

Ø  Remuneration monthly;

Ø  Employee start date;

Ø  Employment end date;

Ø  Sector / minimum wage per month;

Ø  Leave income (during shut down period);

Ø  Bank Name;

Ø  Branch code;

Ø  Account type;

Ø  Account number;

 

This file needs to be saved as follows:

UIREEFERENCENUMBER_ddmmmyyyy_uniquesequence.csv

 

00000012_25mar2020_01.csv

 

##File should have a header record (1st line) as follows: Header| DATE DDMMMYYYY UNEMPLOYMENT INSURANCE ACT 63 0F 2001. EMPLOYERS DECLARATION FOR SHUT DOWN/SHORT TIME DUE CORONA VIRUS FOR MONTH OF - ------ . APPLICATION UNDER NATURAL DISASTER BENEFICIARY FUND

 

 ## each file should have footer record as under - Footer| 2050

 

(Here 2050 is the actual number of record to be loaded into database, between header line and footer line) If file doesn’t have header/ footer record then it will be considered as discarded as incomplete dataset.

 

Step 3: (Conclusion of MOA)

 

Payment will only be made after MoA has been signed off between the fund and the Employer. 

 

Should you require any further information on TERS please do not hesitate to contact one of our consultants. 

 

The Kusile Team

Gavin Mulvenna (IR/ER Consulting) -   gavinm@yourside.co.za;              082 891 7093

Tanya Barnard (IR/ER Consulting)   -    tanyab@yourside.co.za;              082 328 7101

Petronella Mofokeng (HR Consulting)   petronellam@yourside.co.za;      082 870 2402

Lauren Parker (Payroll) -                       laurenp@yourside.co.za;             084 840 2399 

John Povey (Senior Consultant)           john@yourside.co.za;                   082 891 7094

Nadia Pearce (Admin / Queries)           kusile@yourside.co.za;                071 986 4961

 




Covid 19 NATIONAL DISASTER FUND FOR LOCKDOWN
2020/03/25

Dear Clients 

Following our updates / snippets on the relief offered by the Department of Labour in the last week herewith some information on the way forward during the national lock-down. 


The Unemployment Insurance Fund has (as at the time of sending this snippet / update) not made available any further regulations dealing with the lock-down.  The information prior to the announcement of the lock-down was that the National Disaster Fund will assist with compensating affected workers through UIF.  This benefit is naturally only for employers and employees already registered for UIF. NB: Please take note that if anything changes or is gazetted we will be the first to inform you. 

 

THE WAY FORWARD

We have been advised by the Department of Labour that Employers should embark on the following measures:

  • Annual leave – although this is not a legal requirement employers and employees may agree on the use of annual leave during this period;
  • Working from home – where it is possible for employees to work from home issue a clear directive as to what the expectation is for working from home. 
  • No work no pay – in the case where there is either no agreement to use annual leave or where an employee does not have annual leave and no other arrangement can be made then the principle no work no pay will apply. 
  • UIF – In the case where no work no pay will be applied then Employers should make an application on behalf of their employees online (UFiling) for UIF benefits.  The following forms would need to be completed:
    • Normal UI19 form together with UI2.7;
    • UI2.1 – Application form;
    • UI2.8 (form completed by the bank);
    • A letter from the Employer confirming that the Company is shutting down / facing a temporary lay-off due to COVID-19;
    • Copy of the Employee’s identity document. 

 

Benefits would be calculated and paid based on the requirements met in terms of provisions of the Department of Labour, however, benefits payable may not be lower than the national minimum wage (R3500.00) - there is at this stage no clear indication how such calculations will be made. Also note that this benefit will delink any other benefits claimable from the Department of Labour (such as a short time claim). 

 

There are specific forms that need to be complied with, and the process itself might seem simple. However, we can assist you to ensure compliance.  Contact one of our consultants to assist in the short time / lay off process as well as assist you with the required UIF documentation forms that need to be complied with.  Consultations can be done face to face alternatively vis Skype or Zoom (electronically). 

 

Kind regards

 

The Kusile Team

Gavin Mulvenna (IR/ER Consulting) -   gavinm@yourside.co.za;              082 891 7093

Tanya Barnard (IR/ER Consulting)   -    tanyab@yourside.co.za;              082 328 7101

Petronella Mofokeng (HR Consulting)   petronellam@yourside.co.za;      082 870 2402

Lauren Parker (Payroll) -                       laurenp@yourside.co.za;             084 840 2399 

John Povey (Senior Consultant)           john@yourside.co.za;                   082 891 7094

Nadia Pearce (Admin / Queries)           kusile@yourside.co.za;                071 986 4961

 




SA ON LOCKDOWN
2020/03/24

Dear Clients

Following our latest communication to you last night, things took a drastic turn at 20:00 when President Cyril Ramaphosa announced a National Lockdown.  As you will appreciate KCS provides you with factual information based on gazetted information and not on fake news or assumptions.  We are in the process of drafting a circular regarding the lockdown, payment information etc.  

As you will appreciate this can only go out once all the correct information has been made available via the Department of Labour / the Minister of Labour.

We understand and appreciate the clients are nervous and want answers immediately please bear with us as to obtain the necessary information as soon as possible.

Kind regards
The Kusile Team 




Updated UIF Information available today - 23 March 2020
2020/03/23

Dear Clients


Following our snippet on the relief offered by the Department of Labour yesterday, herewith some further information made available today. 

 

The Unemployment Insurance Fund will compensate affected workers through a new “National Disaster Benefit”.  This assistance will be over and above the already existing benefits relating to illness, reduced working time and unemployment benefits.  Take note that the  “National Disaster Benefit” (and any other UIF benefits) is only applicable to already registered employers. 

 

What does the National Disaster Benefit propose?

Where an employer decides, as a direct result of the COVID-19 pandemic to close for a period of time or to send employees home, then this is seen as a “lay-off”.  Where employers cannot pay employees during this period of time, the employer can apply for the National Disaster Benefit, to claim UIF. 

 

Where the employer itself makes the decision to close, as a direct result of the Corona virus, then that is rather simple. However, where the employer closes, because its client or customer closes, the result of which staying open is rendered impossible, then it remains to be seen if the criterion “directly” affected will be considered to have been met.

 

Where an employer applies for benefits under the “National Disaster Benefit Fund” then this will be the only benefit the employee will be able to receive-two benefits cannot be applied for simultaneously. The Department of Labour would will pay a flat rate of R3500.00 per employee for the duration that the company is closed / shut down or for a maximum period of three (3) months (whichever is shorter). 

 

What about short time / reduced work time?

Where a company shuts down for a short or certain period of time then benefits claimable here would be the difference between what the employer normally pays the employee versus the amount the employee would have received from the Department of Labour (UIF) under normal unemployment benefits. No reference is made to the period of the reduced working time. 

 

What do you do in the event that one of your employees has fallen ill or has been quarantined for a period of 14 days or longer? 

Per our previous communication to our clients, here the normal Illness benefits from the Department of Labour would apply.  When this occurs various requirements has to be met for e.g. where there is no specific medical certificate in place, rather the employee has been placed in quarantine then a specific letter would be required between employer and employee.  Benefits would be paid based on the requirements met in terms of provisions of the Department of Labour. 

 

There are specific forms that need to be complied with, and the process itself might seem simple. However, we can assist you to ensure compliance.  Contact one of our consultants to assist in the short time / lay off process as well as assist you with the required UIF documentation forms that need to be complied with.  Consultations can be done face to face alternatively vis Skype or Zoom (electronically).  


Kind regards 

The Kusile Team 


Gavin Mulvenna (IR/ER Consulting) -   gavinm@yourside.co.za;              082 891 7093

Tanya Barnard (IR/ER Consulting)   -    tanyab@yourside.co.za;              082 328 7101

Petronella Mofokeng (HR Consulting)   petronellam@yourside.co.za;      082 870 2402

Lauren Parker (Payroll) -                       laurenp@yourside.co.za;             084 840 2399 

John Povey (Senior Consultant)           john@yourside.co.za;                   082 891 7094

Nadia Pearce (Admin / Queries)           kusile@yourside.co.za;                071 986 4961





COVID 19 AND UIF RELIEF
2020/03/22


!!NEWS FLASH!!

Much confusion has prevailed with, for example, the phrases “special leave”, “self isolation”, “compulsory quarantine”, “lay-off” and, even “supervening impossibility of performance”.  This update focuses on Government’s intervention and assistance – in terms of various UIF provisions. 


It is not the purpose of this update to deal with the complicated topics of “lay-off” and “supervening impossibility of performance” (vis major).  As previously noted, each case has to be considered on its merits to determine the applicability and the lawfulness of these legal principles and further advice should be sought. 


The confusion has been fueled by the impression created as to what is actually available under UIF, versus talk about things like “special leave” and “what is to be soon done”


The best clarity is achieved by listing and distinguishing between those benefits which already exist (and have for some time) versus those now actually introduced as new provisions or clarified provisions.    


“Unemployment” benefits for an “employed” person is, in itself, a contradiction in terms, at least on face value. However, unemployment benefits for employed persons have existed (for a long time). 

 

WHAT ALREADY EXISTS?

Unemployment benefits for illness, for an employed person have existed for a long time. 


Sections 19 and 20 of the UIF Act have long provided for “unemployment” benefits for a sick employee.  Section 20(1) (a) provides for illness benefits.  The contributor is entitled to illness benefits if unable to perform work on account of illness.  The benefit for illness is calculated in accordance with Schedule 2 of the UIF Act. 

 

Absence due to illness is a relatively simple scenario – the employee is sick and because of the illness is rendered incapable of working.  It’s a case of incapacity: illness.

 

However, in the midst of a national disaster, the scenarios are more difficult. 

 

THOSE SCENARIOS INCLUDE: - 

Ø  SELF-ISOLATION – use of annual leave;

Ø  COMPULSORY QUARANTINE – at the behest of the employer… to date, other than using annual leave as a possibility, so-called “special leave” has been referred to;

Ø  COMPLETE CLOSURE – a lay-off (no work, no pay);

Ø  Reliance on vis major (the contract of employment is suspended given complete impossibility to continue-eg because of State action).  

 

To date there has been no clear provision, or no clearly communicated provision, for so-called “special leave” and what UIF benefit exists in this regard.


Special Leave” does not exist in law (under the BCEA).  It is entirely at the employer’s discretion to grant “special leave”.  In essence all the employer is doing is paying the employee for the employee’s absence. 

 

WHAT IS NEW?

On the 17th of March 2020 the Minister of Employment and Labour announced the use of the Temporary Employer / Employee Relief Scheme (TERS), with the view to avoiding retrenchments.  Mention was also made of “special leave”. No real clarity on what was being considered, versus that already available, was provided.

 

As at 22 March 2020 –

Ø  A specific EMPLOYER DECLARATION UNDER UIF ACT, specifically in respect of the corona virus requiring quarantine of an employee- which then entitles an application for UIF benefits.  (Contact us for the declaration form);

Ø  Specific clarity on “REDUCED WORK TIME” benefits.  This applies to where the company “shuts down or implements reduced or short time”.  (Schedule 3 to the UIF Act previously and prior to amendments in 2018 excluded short time and lay off for the purposes of UIF benefits);

Ø  QUARANTINE FOR 14 DAYS – the illness benefit will apply (through UIF);

(For clarity on the above contact us for the “Easy-Aid Guide”).

 

A further development is the provision of clarity on TERS.  TERS can be utilised for a “WAGE SUBSIDY” and for additional financial support, the latter involving CCMA adjudication, together with UIF officials.  For more information on how to apply for a wage subsidy in terms of TERS please contact one of our consultants.  


Finally, under COIDA (Commission for Occupational and Injuries, Diseases Act - Section 6A) provision is made for occupationally – acquired novel corona virus disease.  In simple terms workman’s compensation now specially covers claims for compensation for COVID-19 as an occupational disease. 

 

For any clarity on this UIF update or assistance with any of the information in this update please do not hesitate to contact Gavin Mulvenna (0828917093) or Tanya Barnard (0823287101) for further assistance.  Take note that Kusile’s staff are available on their cell phones and emails in the next few weeks. 

 

Kind regards

The Kusile Team

Gavin Mulvenna (IR/ER Consulting) -   gavinm@yourside.co.za;              082 891 7093

Tanya Barnard (IR/ER Consulting)   -    tanyab@yourside.co.za;              082 328 7101

Petronella Mofokeng (HR Consulting)   petronellam@yourside.co.za;      082 870 2402

Lauren Parker (Payroll) -                       laurenp@yourside.co.za;             084 840 2399 

John Povey (Senior Consultant)           john@yourside.co.za;                   082 891 7094

Nadia Pearce (Admin / Queries)           kusile@yourside.co.za;                071 986 4961

 




WE ARE STILL CONSULTING!
2020/03/21

To all our Clients, 

With everything that is going on around the world, companies closing temporarily, some permanently, some working from home and hopefully all Employers out there taking the necessary precautionary measures to keep themselves and their staff safe.  

Take note that Kusiles staff will work from home for the next few weeks and thus our landline diverted to Nadias cell phone.  Please note that all consultants are working and is contactable per cellphone and email.  

Thankfully with all other electronic measures available it is still possible to chair hearings, have meetings and consult with our clients via Skype or Zoom.  Therefore please do not hesitate to contact any one of our consultants for assistance.  There are many challenges Employers face with the COVID-19 pandemic, however, we are here to assist you, albeit be asking for advice, consulting with your staff to place them on short time, retrenchments etc.  

Take note that the CCMA will be closed until the 14th of April 2020 (at this stage) and should you receive any notifications for CCMA matters please forward to us to keep track of these cases.  You may still receive automatic email responses reminding you of a matter, however, if it falls within the period 18 March 2020 until 14 April 2020 these matters will not be heard and will be rescheduled.  

For ease of reference herewith our consultant\\\'s contact details: 

Gavin Mulvenna (IR/ER Consulting) -   gavinm@yourside.co.za;             082 891 7093
Tanya Barnard (IR/ER Consulting)   -    tanyab@yourside.co.za;             082 328 7101
Petronella Mofokeng (HR Consulting)   petronellam@yourside.co.za;     082 870 2402
Lauren Parker (Payroll) -                       laurenp@yourside.co.za;            084 840 2399 
John Povey (Senior Consultant)           john@yourside.co.za;                  082 891 7094
Nadia Pearce (Admin / Queries)           kusile@yourside.co.za;                071 986 4961

For any queries, assistance with COVID-19 Policies (Natural Disaster Policies), assistance with short time, retrenchments, hearings etc please contact us.  

Kind regards 

Kusile Consulting Services 



COVID 19 - HOW IT IMPACTS ON THE WORKPLACE
2020/03/16

 

A “pandemic” (an epidemic across geographical areas) is the formal status of the WHO given to the COVID-19 (Coronavirus) outbreak.  On 15 March 2020 the state president declared a National State of Disaster in terms of the Disaster Management Act, 2002.

 

From an employment law point of view the considerations are as follows.

 

Practical considerations

 

The employer should formally communicate to all employees what the symptoms are and what they hygiene precautions are.

 

Business travel bans / restrictions to be enforced (local and international).

 

Restrictions on meetings (use technology).

 

The employer should formally communicate the “rule” or requirement that any employee who has travelled to a high-risk area, or has come into close contact with a person who is infected or suspected of being infected, must positively make a declaration to this effect.  (The incubation period is between 2 and 11 days).

 

The employer to then consider sending the employee to be tested, to assist in this regard (available public and private facilities) and to consider if the employer makes payment for the test.  (The costs of prolonged absence of employees, or even a lay-off or shut-down, way exceed the costs of the test.  Various medical aids have publicized specific payment arrangements in this regard).

 

The provision of hand soaps and hand sanitizers – to be communicated that washing of hands should be at the commencement and end of every work interval, and every entry and exit from the workplace.

 

A daily work environment surface clean.  Protective clothing (masks, gloves) to be provided to those employees involved.

 

A consideration of less employees on longer shifts, alternating per week with strict self quarantine for week off.

 

Legal considerations

 

The obvious starting point is the obligation on the employer to ensure a safe workplace, which is free of risk as far as is practicable (OHSA).  Section 8 of the Occupational Health and Safety Act, 1993 (OHSA) requires every employer to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risks to the health of its employees.

 

This duty includes (i) taking steps to eliminate or mitigate any hazard or potential hazard, before resorting to personal protective equipment; (ii) providing information, instructions, training and supervision that may be necessary to ensure the health and safety of employees at work; and (iii) enforcing such measures as may be necessary in the interests of health and safety. Section 9 extends these duties towards persons other than those in employment affected by the employer’s activities.

 

The General Safety Regulations published under the OHSA prohibit an employer from permitting a person to enter a workplace where the health and safety of such person is at risk. Again, the yardstick is “as far as is reasonably practicable”.

 

Employers may accordingly impose rules on their employees in order to ensure a safe working environment and, in addition, it may place conditions on entry into its premises. Employers may exclude persons from their premises if they do not abide by those rules. All employees must declare any risk they may have been exposed to.  All employees must declare if they are experiencing the stated medical symptoms of Covid-19.

 

A legitimate entry requirement may be requiring the disclosure of recent international travel or exposure to a person of high risk and subjecting individuals to a temperature test, if necessary. Any such test must be conducted with due regard to the individual’s privacy and the individual’s informed consent should first be obtained.

 

If an individual refuses to be subjected to a temperature test, the employer may rely on other available information, such as persistent coughing or sneezing, and must then take appropriate measures, in respect of denying access and further precautionary measures in terms of medical testing and attention.

 

The Environmental Regulations issued in terms of the OHSA provide, inter alia, that the employer must ensure that its workplace premises are ventilated in such a way that the air breathed by the employees does not endanger their safety.

 

Where there is a danger of unsafe air the employer must provide the employees (and must ensure that they correctly use) respiratory protective equipment of a type that reduces exposure.

 

The Facilities Regulations require employers to provide (free of charge) sanitary facilities, soap or a similar cleansing agent as well as hot and cold water. The employer is also required to maintain rooms and facilities that are clean and hygienic. Door handles, hand rails, surfaces, tools and equipment and computer keyboards should be given particular attention and be cleaned regularly.

 

“As far as is practicable” really involves the practical considerations.  But an employee also has obligations in terms of occupational health and safety – hence the aforesaid compulsory declarations required (more so in the case of private travel to a high risk area).  The OHSA also imposes a duty on employees to take reasonable care for their own health and safety and that of other persons who may be affected in the workplace. Employees who act in violation of an employer’s health and safety rules or who disobey reasonable and lawful instructions in this regard may be subjected to appropriate disciplinary action. Blatant disregard for such rules or instructions could potentially be grounds for dismissal on the basis of misconduct.

 

If an employee becomes aware of a situation that is unsafe or unhealthy, the employee must report such a situation to the employer as soon as practicable. In the context of Covid-19, this may include a suspicion that a fellow-employee or service provider or delivery service or customer exhibits flu-like symptoms. The employer should then take appropriate steps, such as requesting the individual concerned to submit to a temperature test, and to require the person concerned to leave the premises if considered necessary. Again, such testing may only be conducted with the individual’s informed consent.

 

Where the employee contracts Covid-19 and is declared unfit to work in terms of a medical certificate then sick leave applies.  If the sick leave is exhausted then the remainder of the period for which the employee is booked off would be unpaid sick leave.  The WHO has indicated that a person should be in quarantine for a period of 14 days.

 

The employer should require of the employee, prior to returning to work, to provide the employer with a medical certificate confirming that the employee can return to work. If the employee is not medically booked off, but has either traveled to a high risk area, or is displaying symptoms of the illness whilst at work, then the question is can the employer insist on the employee not rendering services – i.e. a type of “forced sick leave”.

 

Sick leave only applies on the basis of medical certification. The phrases “self-quarantine” (or “self isolation”) and “compulsory-quarantine” are being utilized.

 

If the employee chooses him or herself to “self-quarantine”  then the no work no pay rule would apply. Obviously employees would not necessarily readily do this when they know  there will be no pay.  Accordingly the use of accrued annual leave could be considered in these circumstances.

 

Compulsory quarantine (ie quarantine required and enforced by the employer) does not automatically mean the no work no pay rule applies.  Sick leave does not apply in the case of compulsory quarantine by the employer – there is no medical certificate.

 

Annual leave cannot be enforced, as the compulsory quarantine is being enforced by the employer.  By agreement, annual leave can of course be utilized.

 

But if the employee refuses annual leave (and is told that he or she may not render services) then what?  The employer is of course at liberty to simply grant “special leave” for compulsory quarantine.  The situation is of course one of the unknown in terms of duration and is also obviously open to potential abuse. At common law the employee is remunerated against the tendering (not rendering only) of the service.

 

Special (paid) leave will therefore, purely from a practical point of view, have to be considered for cases of self-quarantine (ie where the employee voluntarily requests to be quarantined).  If the employee can properly work from home then no special leave (or any form of leave) is required.

 

Self (voluntarily) quarantine would need to be strictly monitored.  It is here that the employer should develop a policy statement that it will arrange and possibly pay for testing.

 

It is doubtful that an employer could, in the case of any individual employee, argue force majuere (ie supervening impossibility of performance).  In the case of an individual employee, where the supervening impossibility is linked to the employee, ie illness or suspected illness, incapacity:  ill-health guidelines would be required to be followed.

 

However, what if temporary closure of the business is contemplated?  

That closure could be purely a preventative measure, or it could be due to forces or circumstances beyond the control of either the employer or the employee.

 

Where the business decides to close, or partially close, as a precautionary measure then it is unlikely that “force majeure” can be relied upon not to pay those employees who are not required to render services.

 

Where the business is however forced to close as business has ended or decreased, due to something beyond its control, for example a travel ban (on persons but also per se, ie flights and imports) then the contract of employment becomes impossible to be performed (which means no work, no pay).

 

The basis of the impossibility is then the inability to do business, which impossibility emanates from, but is not directly because of the disease.  Impossibility must be absolute.

 

The result is a temporary suspension of the operation of the contract, caused by the uncontrollable circumstances, like legitimate State action, or a complete shutdown on either the supply side or the demand side.

 

Further advice must be sought when contemplating any reliance on the principle of supervening impossibility of performance.  Reasonableness will count all round – in the absence of a temporary closure or lay off (which can in fact be agreed to), then dismissals for operational reasons may flow.

 

In fact the most pragmatic approach is to engage urgently with employee representatives – with the view to collectively agreeing the terms and conditions that will apply to quarantine, to lay offs, etc.


For any further information or assistance in this regard please contact Gavin Mulvenna (0828917093) or Tanya Barnard (0823287101)


Kind regards


Kusile Consulting Services 

011 609 2630 

Email: kusile@yourside.co.za 




Employment Equity Update
2020/02/22

 Dear Clients 

Cabinet has approved the submission of the Employment  Equity Amendment (EEA) Bill of 2020 to Parliament.  The amendments will empower the Minister of Employment and Labour, in consultation with sector stakeholders, to introduce enabling provisions for the setting of sector-specific Employment Equity numerical targets. It also reduces the regulatory burden on small employers. It will also ensure that an employment equity certificate of compliance becomes a precondition for access to state contracts. 

What impact will this have on Business?
As the  Employment Equity Amendment Bill makes its way to  Parliament  for  deliberation, the Department of Employment and Labour has set the ball in motion for the introduction of sector-specific  Employment Equity numerical targets.  Negotiations with different sectors are already underway regarding setting of numerical targets.  South African Government and State of the Nation (SONA).

Mr Thembinkosi Mkhaliphi, Chief Director of Labour Relations said on the SA News interview: “The bill will also reduce the regulatory burden on small employers. The Bill promotes equal opportunity and fair treatment in employment through the elimination of unfair discrimination. Employers with less than 50 employees will no longer have to report on their employment equity targets, irrespective of their turnover. It is important that we give a break for small business in terms of regulations. While [this bill] is strengthening enforcement in terms of targets set, it also makes it easy for a business to operate by lessening the regulatory burden, he said”

Should you have any further queries please contact us.  

Kusile Consulting Services 
Tel:  011 609 2630



Do you have your Laminated Wall Charts?
2019/05/24

Dear Clients 

We have had a few queries in terms of the new laminated wall charts.  Take note of the following before you buy from anywhere. 

  • The Basic Conditions of Employment Act was updated in January 2019 and thus you may need a new 2019 version; 
  • The Tobacco Act was also updated and you may need a new 2019 version; 
  • The Employment Equity Act - no changes as yet so there is no 2019 version, however, we have the latest version; 
Costs for these wall charts range as follows: 

  • Basic Conditions of Employment Act - R50.00
  • Tabacco Act - R50.00
  • Employment Equity Act - R50.00
  • Occupational Health and safety Act (incl Regulations) R270.00

You are welcome to place your orders at kusile@yourside.co.za, alternatively to contact Tanya or Loren at the office 011 609 2630.  In case of email orders please let us know how many sets of each do you require. 

Regards 
Ms Tanya Barnard 
011 609 2630
Email: tanyab@yourside.co.za 



Update on the BCEA Changes
2019/04/16

Dear Members

 As most of you know the start of 2019 has shown a significant increase in the change to Labour Legislation.  In this snippet we introduce you to the changes to the Basic Conditions of Employment Act read with the National Minimum Wage Act. 


As a brief introduction the Basic Conditions of Employment Amendment Act (BCEAA) introduced the national minimum wage (NMW), and as a result certain provisions of the Basic Conditions of Employment Act, No 75 of 1997 (BCEA) have been affected. Therefore, the BCEAA, inter alia, incorporates certain provisions of the NMWA.


An Employer’s failure to pay in accordance with the provisions of the NMWA (now dealt with in the BCEAA) will be subject to a fine. The fine is calculated per employee as the greater amount of twice the value of the underpayment or twice the employee’s monthly wage. The National Minimum Wage Commission has replaced the Employment Conditions Commission. Over and above these changes the Basic Conditions of Employment Act now provides that an employee who is not paid in accordance with the NMWA / BCEAA may now institute a claim in the Commission for Conciliation, Mediation and Arbitration (CCMA) for such failure. (Please refer to further comments below regarding this subject). 

 

The BCEAA includes section 9A which deals with “daily wage payment”.  This section provides that an employee (an employee now includes an employee in terms of the NMWA definition) who works for less than four hours on any day must be paid for four hours of work (regardless of whether the four hours was worked or not).  This section specifically deals with employees earning below the national earnings threshold.  (The current earnings threshold as per Section 6(3) of the BCEA is R205,433.30). 

 

The BCEA further provides that if any sectoral determination at the date of the promulgation of the NMWA, prescribes wages that are higher than the national minimum wage, the wages in that sectoral determination and the remuneration and associated benefits based on those wages must be increased proportionally to any adjustment of the national minimum wage.

 

The BCEA, as stated above, provides that any employee may now refer a dispute to the CCMA for the failure of an Employer to pay any amount referred to in the BCEA.  The BCEA also amended the functions of a labour inspector which now provides that “any payment” refers to payments dealt with under the BCEA, the NMWA and the Unemployment Insurance Act (UIA) and/or the Unemployment Insurance Contributions Act (UICA).  The rights of an inspector have been amended to such an extent where the inspector may appear on behalf of the Director-General in any proceedings in the CCMA or Labour Court concerning a failure to comply with the legislation referred to above.

 

The general “written undertaking” and “compliance order” by an employer to comply with any undertaking regarding provisions of the BCEA (Sections 68 and 69) has been amended to also include non-compliance with the NMWA, the UIA and the UICA. Any failure by an employer to comply with any undertaking can now be referred to the CCMA and made an arbitration award. What this means is that, in the event of any further non-compliance with such undertaking, a Sheriff may be appointed to attach.  

 

As a result of the above provisions a new Section 73A has now been added to the BCEA which deals with “Claims for failure to pay an amount”.  This section sets out the provisions of any employee or worker (as defined in the NMWA) who may refer a dispute to the CCMA concerning the employer’s failure to pay any amount owing to that employee or worker in terms of the Act.  “Any amount” may include, earnings, wages, leave pay etc.  The process has been simplified to the extent that the matter will be dealt with by the CCMA as a Con/Arb (Conciliation and Arbitration) and neither party may object to the process of Con/Arb. The appointed Commissioner must commence arbitration of the dispute immediately after certifying that the matter was unresolved.  Where an employee proves any amount owed to the employee and the employer fails to substantiate this amount an award will be issued and the employer will be bound by the award. 

 

Section 73A is specifically for employees earning below the prescribed threshold (R205,433.30), and deals with any amounts owing in terms of the BCEA, the NMWA, a contract of employment, a sectoral determination or a collective agreement.  

 

If an employee refers an unfair dismissal dispute the employee may now, in terms of Section 74 of the BCEA (which deals with the consolidation of proceedings), request that the arbitrator (CCMA) deal with the failure of the employer to pay any amount which is due in the same process as the unfair dismissal dispute (even if the employee earns above the national minimum wage). 

 

Furthermore, the payment of interest by an employer on any amount due and payable to an employee, as provided for in section 75 of the BCEA, as well as proof of compliance detailed in section 76 of the BCEA, is incorporated to reference the NMWA.

 

An employer may now be liable to fines in terms of section 76A if the employer paid an employee less than the national minimum wage. The amount of the fine will be the amount that is the greater of twice the value of the underpayment, or twice the employee\'s monthly wage. In cases where an employer has failed for a second time (or thereafter) to pay the employee the national minimum wage, the employer will be liable to a fine of three times the value of the underpayment or three times the employee’s monthly wage. Not only does the CCMA now enjoy jurisdiction to deal with these matters, but the matters may be referred to the Labour Court, the High Court, the Magistrates Court or the small claims court.  All employers are therefore advised to ensure that all employees are paid in accordance with the NWMA and further that any monies due to employees are paid out on termination. 

 

To schedule a Labour Legislation update please feel free to contact us. 

 

Regards

Tanya Barnard 

Kusile Consulting Services 

011 609 2630

0823287101




The use of Cannabis (Dagga) in the workplace
2019/04/08

Dear Clients 


The much-publicised Constitutional Court case of Prince v Minister of Justice and Constitutional Development and others, which legalizes the private use of Cannabis, has raised conflicting arguments in the workplace between employer and employee.

 

The employee will simply argue that Cannabis use is lawful, when testing positive. The employer will respond that Cannabis is an intoxicating substance, and if tested positive, constitutes in a disciplinary offence.

 

In the arbitration of Mthembu and others, v NCT Durban Wood Chips (KNDB4091-18 delivered 2018-09-24) the CCMA had the opportunity to deal with the issue post the Con Court ruling.

 

The quandary is that the main psychoactive part of Cannabis, tetrahydrocannabinol (THC), can stay in the body for days or even weeks. The employee may therefore not even dispute having consumed Cannabis but argue that he/she is not intoxicated.

 

An analogy can be drawn with the consumption of alcohol. The employee tests positive but maintains that he/she is not intoxicated (or drunk).

 

Most company rules and regulations provide for rules regulating consumption of alcohol whilst on duty and, more to the point, being under the influence of alcohol whilst on duty.

 

Section 2A of the General Safety Regulations, OHSA provides that the employer may not permit the presence of any person at the workplace where that person is/appears to be under the influence of an intoxicating substance.

 

In the case of alcohol a breathalyser test proves the consumption of alcohol. It is the clinical evidence that determines whether or not the employee is, in fact, under the influence of alcohol.

 

That clinical evidence includes the smell of alcohol. With Cannabis, the overt evidence of consumption may be more difficult to observe.

 

Where the employee tests positive, admits to the consumption of Cannabis but denies he/she is intoxicated, and furthermore asserts that consumption of Cannabis is lawful, then what recourse does the employer have?

 

The employee asserts that he/she has done nothing wrong. If the employer proffers disciplinary charges of the like “under the influence (of Cannabis) or intoxicated” then the question is how is (a) the intoxication (not the mere consumption) proven and (b) how is possible dismissal justified? – i.e how is the employee’s (obvious) defence rebutted?

 

On the first part of the question, one may not need to prove (actual) intoxication (by reference to clinical evidence (like reduced cognitive ability) if it is accepted that a positive test equates to intoxication.

 

This seems to have been the approach in the Mthembu matter.

 

The arbitrator appears to have accepted that a positive test means or equates to “working under the influence of alcohol or drugs”. The headnote to the award was worded in broader terms – “…… employers are still entitled (despite the private use of Cannabis being legal) to discipline employees who use cannabis (my emphasis) or are under its influence (my emphasis) during working hours”.

 

This ratio decidendi means that actual intoxication, or proof thereof, is not required. Conversely what it means is that (merely) testing positive is all the evidence that is required.

 

A critical part of the Mthembu award was the nature of the employer’s business and the job functions of the applicants. The use of dangerous machinery was undisputed.

 

The bottom line is that where safety could be genuinely compromised (given especially the nature of the employee’s job functions) dismissal may be justified (for a first offence). The deduction is that, if this is not the case, then progressive discipline may be more appropriate.

 

Also important is that the employer in the case had specifically communicated its zero tolerance policy towards substance abuse.

Clients are therefore advised to reword their substance abuse policies, so as to specifically refer to Cannabis, the (mere) consumption thereof and to testing positive whilst on duty. It is also recommended that any tests be conducted by qualified occupational nursing staff.

 

The zero-tolerance message needs to be made unequivocally clear to all employees.

 

Should you require any further assistance, or a review of your current policies please contact us.  


Regards 

Kusile Consulting Services 

011 609 2630

kusile@yourside.co.za 


Gavin Mulvenna - 082 891 7093

Tanya Barnard - 082 328 7101




PARENTAL RIGHTS
2019/02/07

Dear Clients 

The commencement of 2019 has seen a number of changes in various pieces of labour legislation, including the National Minimum Wage Act, the Basic Conditions of Employment Act and the Unemployment Insurance Fund Act. In this snippet we will tell you about the changes relating to the Basic Conditions of Employment Act which deal with Parental leave, as introduced and inserted by the Labour Laws Amendment Act, 10 of 2018.

 

The Act was approved and signed on the 23rd of November 2018 and became effective on the 02nd of January 2019.  Various changes will be included in the Basic Conditions of Employment Act (hereinafter referred to as BCEA) and we will give you a summary of those changes below:

 

Ø  Section 1 (Definitions) of the BCEA has been amended by the Labour Laws Amendment Act, 10 of 2018 to insert definitions in Section 1. The following are of importance to employers:

o   “adoption order” – which means an adoption order as envisaged in terms of the Children’s Act;

o   “adoptive parent” – has the same meaning as the meaning per the Children’s Act;

o    “prospective adoptive parent” means a person who complies with the requirements set out in the Children’s Act. 

 

Ø  The Act has also been changed in respect of new sections 25A, 25B and 25C

 o   Section 25A – Parental Leave

Section 25 A has been included in the Act to make provision for “Parental leave”. 

Ø  What this section means is that an employee who is a parent of a child is entitled to ten (10) consecutive days Parental leave. 

Ø  The section further states that leave may commence on the day the employee’s child is born; or on the date that an adoption order has been granted; or when a child is placed in the care of a prospective adoptive parent by a court pending the finalisation of an adoption order in respect of that child (whichever date occurs first). 

Ø  The Act also states that the employee must notify the employer in writing (unless the employee is unable to do so) when the employee intends to commence Parental leave and when the employee intends returning to work after Parental leave. 

Ø  The notice must be given at least one month before the employee’s child is expected to be born, or at least one month before any adoption order will be granted. 

Ø  Payment in terms of Parental leave will be through the Unemployment Insurance Act 63 of 2001. 

 

o   Section 25B – Adoption Leave

Ø  Section 25B has been included to deal with Adoption leave. 

Ø  An employee who is an adoptive parent of a child, below the age of two years, is entitled to Adoption leave of at least ten (10) consecutive weeks alternatively to the Parental leave referred to in Section 25A. 

Ø  An employee may commence Adoption leave on the date that the adoption order is granted; or the date a child is placed in the care of the prospective adoptive parent by a court, pending the finalisation of the adoption order in respect of the child (whichever date occurs first). 

Ø  The Act also states that an employee must notify the employer in writing (unless the employee is unable to do so) when the employee intends on commencing with the Adoption leave, and returning to work after the Adoption leave. 

Ø  The notice must be given at least one month before the adoption order is granted. 

Ø  Payment in terms of Adoption leave will be through the Unemployment Insurance Act 63 of 2001. 

Ø  What if there are two adoptive parents?  Where an adoption order is made in respect of two adoptive parents, or where a court orders that a child is placed in the care of two prospective adoptive parents pending the finalisation of an adoption order, one of the adoptive parents may apply for Adoption leave and the other may apply for Parental leave.  The Section is silent on whether or not the two adoptive parents work for the same employer. The deduction therefore is that if they do then both employees are entitled to either Adoption leave or Parental leave – the selection being made by the two adoptive or prospective adoptive parents.  Where the two persons concerned work for different employers then it is difficult to see how the choice of leave will be regulated – the two employers would need to be aware of the respective leave applications i.e. for Parental or Adoptive leave.

 

o   Section 25C – Commissioning Parental Leave

Ø  Section 25C deals with a commissioning parent who is in a surrogate motherhood agreement.  The Act states that the employee is entitled to Commissioning Parental leave of at least ten (10) consecutive weeks leave, or parental leave referred to in Section 25A. 

Ø  The employee may commence Commissioning Parental leave on the date a child is born as a result of the surrogate motherhood agreement.  

Ø  The employee must notify the employer in writing (unless the employee is unable to do so) of the date the employee intends on commencing with Commissioning Parental leave and also when the employee intends returning after Commissioning Parental leave. 

Ø  Notification to the employer must be given at least one month before the expected date of birth of the child. 

Ø  Payment in terms of Commissioning Parental leave will be through the Unemployment Insurance Act 63 of 2001. 

 

What is a Commissioning Parent? 

“A commissioning parent is a person who enters into a surrogate motherhood agreement with a surrogate mother” (Per the Children’s Act 38 of 2005). 

 

What is a surrogate motherhood agreement?

“This means an agreement between a surrogate mother and a commissioning parent in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent and in which the surrogate mother undertakes to hand over such a child to the commissioning parent upon its birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent”.  (Per the Children’s Act 38 of 2005). 

 

Ø  Section 27 of the BECA - Family Responsibility Leave

The Amendment Act removes section 2(a) “when the employee’s child is born” meaning that the employee’s Family Responsibility leave will now only be “(b) when the employee’s child is sick; or (c) in the event of the death of (i) the employee’s spouse or life partner; or (ii) the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

 

Ø  Section 49 of the BECA – Variation by Agreement

A collective agreement concluded in a bargaining council may not reduce any employee’s entitlement to any of the above forms of leave. 

 

What do you need to go going forward?

Human Resources policies and contracts of employment will need to be revised and updated.  The new forms of leave are indeed extensive.  Absence from work, albeit lawful, will impact on labour requirements, contingency plans, and the availability of a pool of appropriately skilled labour.  The use of fixed term contracts of employment, which is justifiable on the basis of the absence of an employee (Section 198B(4)(a) of the LRA), will increase and careful attention must be paid to the wording of these limited duration contracts. 

 

“Parental leave” is generally considered as a generic term including maternity, paternity and adoption leave.  The amendments, however, provide for “Parental leave” as a species of (Parental leave), along with Adoption leave and Commissioning Parental leave.  Accordingly, a question that arises is, is a female employee entitled to “Parental leave” when she is (already) entitled to maternity leave.  Section 25A says “an employee who is a parent…” – it does not refer to only a male (or female) employee (who is the parent).  The wording is gender neutral. A strict interpretation is therefore that any employee, regardless of gender, is entitled to “Parental leave”.  But it makes no practical sense – if the mother (who is the female biological parent) goes on maternity leave.  Surely a female employee, who is the biological mother of the child, is only entitled to maternity leave?  But, it makes more sense if civil unions between parties of the same sex are considered.  Here the one parent, who assumes the role of mother, would be entitled to maternity leave (even if a male) – see MIA vs State Information Technology Agency Ltd (LC) and the other to Parental leave, regardless of gender. 


Another area where the changes to “Parental leave” (as a generic term) will have an impact is that of equal pay (or benefits) for equal work, as it will of course in respect of employee costs, per se.  If a company has chosen or agreed to pay for maternity leave (or a percentage thereof), then the question will be why should other forms or “Parental leave” (as a generic term) not be paid?  If the answer given by the employer, for example, is that a male employee is not entitled to paid Parental leave (as a species of “Parental leave”) because the employee is male, then that would no doubt be found to be discriminatory, as the basis of differentiation is a listed arbitrary ground.  It seems that gender cannot form the basis of any distinction between employees when they become entitled to any form of “Parental leave” (as a generic term).  Again, policies and contractual terms will have to be revisited. 


For more information on the changes relating to the Basic Conditions of Employment Act please do not hesitate to contact one of our experienced consultants. 


Kind regards

Ms Tanya Barnard

Email: tanyab@yourside.co.za – Cell – 082 328 7101 // Email: gavinm@yourside.co.za – Cell – 082 891 7093 




Codes of Good Practice for Handling Sexual Harassment Cases in the Workplace
2019/02/05

Dear Clients 


One of the many very recent changes to labour legislation has been the issuing of a notice by the Minister of Labour on 19 December 2018 regarding the Codes of Good Practice for Handling Sexual Harassment Cases in the Workplace.

 

On 17 July 1998 (Government Notice R1367) the first code in this regard was issued.  However, on 04 August 2005 this code was amended by the issuing of a second notice.

 

Many thought that the amended code repealed the previous code.  However the first code was in fact never repealed.  This meant that both codes remained in force and applied.

 

As noted in Campbell Scientific Africa (Pty) Ltd v Simmers and others, the amended code did not replace the existing code, which had never been withdrawn.

 

The significance is that the new code introduced a new definition of “sexual harassment”, with far more emphasis or factors, other than, for example, merely or only if the sexual advances were welcomed, and whether or not they were unequivocally rejected.  Given the facts and circumstances of any case, the application of the wrong emphasis, or code, could have resulted in unfairness.

 

On 19 December 2018 the Minister issued a notice repealing and replacing the 1998 code with the 2005 code. The risks associated with any incorrect emphasis or application, have thus been removed.


For more information on this please dont hesitate to contact one of our experienced Consultants.  


Regards


Kusile Consulting Services 

gavinm@yourside.co.za // 082 891 7093

tanyab@yourside.co.za // 082 328 7101 




Control of Tobacco Products and Electronic Delivery Systems Bill
2018/11/29

Dear Clients 


The above mentioned Bill was published for public comment on 09 May 2018, until 08 August 2018. The legislature will consider the public comments received and then decide if the Bill is to be amended or not. The Bill will repeal the Tobacco Products Control Act 83 of 1993 in its entirety.  The Bill aims to align statute and regulations to the World Health Organization’s Convention on Tobacco Control.

 

The Bill has far wider reaching implications for the tobacco industry and has been met with mixed reactions. From an employment law point of view, smoking is far more strictly controlled.  No person may smoke in an enclosed place or workplace.  “Enclosed”, in essence, means any place, whether temporary or permanent, which has a roof or a ceiling, but also areas or spaces which do not have a roof.

 

The employer may designate the whole or any part of any outdoor space where smoking is prohibited. The provisions apply equally to an “electronic delivery system”, meaning an electronically operated cigarette.  It is the employer’s responsibility to ensure that no person smokes in a prohibited area.  Fines and imprisonment are provided for offences.  

 

Section 2(6) of the Bill provides that the employer must ensure that -

 

·                employees may object to smoking in the workplace in contravention of the Act, without retaliation;

 

·                employees who do not want to be exposed to tobacco smoke, are not so exposed;

 

·                it is not made in condition of employment that any employee is obliged to work in an area where smoking is lawfully permitted.

 

Smoking policies will have to be revisited and revised.  One burning question of course remains when may smokers smoke – during working hours, and if so should this time be managed by the likes of a clocking mechanism, or only during meal / rest intervals?  For more information, or to have your current policy reviewed please contact one of our Consultants. 


Gavin Mulvenna 

Kusile Consulting Services 

011 609 2630





NATIONAL MINIMUM WAGE IS NOW LAW
2018/11/28

Dear Clients 

As some of you will recall we wrote about the national minimum wage some time ago.  The background to this was that the minimum wage was intended on being implemented on 01 May 2018 (workers day) and this did not happen.  


Finally, on Friday the 23rd of November 2018 President Cyril Ramaphosa signed the Bill for the National Minimum Wage (“NMW”) into law.  A further background to this is the reason for the national minimum wage is to protect lower earning workers and provides a “platform for reducing inequality”. 

 

The Act now sets a minimum of R20 per hour for the majority of workers.  The NMW is set to become effective after 30 days and the actual effective date is accordingly 01 January 2019.  On an average month with an 8-hour day at R20 an hour the national minimum wage is set at R3500 per month. 

 

The minimum hourly rate may be set at R20 per hour, however, this is not the only minimum that Employers must apply.  There is also a minimum pay of at least 4 hours per day.  The NMW is said to be reviewed within 18 months as there were various cries that the NMW is in fact an insult to the working class.  Although there may be exemptions that may be applied for exemptions will only be considered up to 10% of the NMW and the exemption will also only be for a period of 12 months. 

 

The NMW will be a phased in process for specific sectors which will include: farm workers, forestry workers, domestic workers, welfare sector and care workers.  It must also be noted that majority of the mentioned sectors above fall within a Sectoral Determination e.g. farm workers and we expect the Sectoral Determinations to be amended and republished in Government Gazettes soon. 

 

The NMW Levels at this stage will look like this:

 

Sector

                      Minimum rate per hour 

 

 

Domestic Workers & Gardners  

                      R15.00 per hour

Farm Workers

                      R18.00 per hour

Other Workers

                      R20.00 per hour

 

Learnerships will depend on the NQF Level and on the credits already earned by a learner.  For more information on the learnerships or on the National Minimum Wage Act please do not hesitate to contact one of our experienced and informed consultants.


Kusile Consulting Services 

011 609 2630




Watch this space.....
2018/11/28

Dear Clients 
We are working on important developments in Labour Legislation that is of utmost importance to all Employers and will be sending out some important information on the National Minimum Wage and changes to Labour Legislation soon...

Tanya 



PROPOSED AMENDMENTS TO THE EMPLOYMENT EQUITY ACT AND THE REGULATIONS
2018/10/18

It has been twenty years since the promulgation of the Employment Equity Act 55 of 1998. (“EEA”).

 

In recent times the Commission for Employment Equity (established in terms of Section 28 of the EEA) has escalated its monitoring and enforcement of the Employment Equity Act provisions via labour inspectors, whose powers are provided for in Section 35 of the EEA.

 

The drive has been to focus on substance over form.  The evidence reported on, in the statutory Section 21 Report (EEA2) is not the focus – from a mere compliance (reporting) point of view.  The focus is on meaningful consultation, as evidenced in signed minutes of the forum / committee established in terms of Section 16 of the EEA, a thorough and accurate analysis (EEA12) and employment equity plan (EEA13) which demonstrate the extent to which the employer has implemented employment equity, taking into account, inter alia, the extent to which suitably qualified people (as defined) from amongst the different designated groups are equitably represented within each occupational level in relation to the demographic profile of the national and regional economically active population, the reasonable steps taken by the employer to implement its employment equity plan, the extent to which the employer has made progress in eliminating employment barriers that adversely affect people from designated groups, and the reasonable steps taken by the employer to appoint and promote suitably qualified people from designated groups.

 

Many an employer has been held to be non compliant, simply because its own analysis, plan and report (which are all separate requirements) contradict each other.

 

In tandem with the increased and in-depth scrutiny, Cabinet has now approved the proposed amendments to the EEA and its regulations.

 

For the last twenty years the EEA and its regulations have not provided for any numerical targets or quota system.  It was left to each designated employer to set its targets and goals.

 

Given the diversity between industries and sectors it always seemed logical that  targets or quotas would be difficult to set.  The assumption was that self-imposed numerical targets and goals would work.

 

The question of course is have they worked?

 

Given the proposed amendments the answer is an obvious no.

 

In the build up to the proposed amendments, the Commission for Employment Equity, in its key findings released in June 2018, revealed the status quo (after twenty years).

 

In summary –

 

Ø   white people occupy 67.7% of top management jobs.

 

Ø   males occupy 77.1% of these jobs.

 

Ø   white people occupy 71.1% of these positions in the private sector

 

Ø   persons with disabilities occupy 1.3% of these jobs.

 

Ø   black people (as defined)  occupy 83.5% of positions at the unskilled level.

 

Ø   in senior management males occupy 66.2% of the jobs.

 

Ø   white people occupy 56.1% of these positions.

 

One of course cannot generalize when asking if employers have made reasonable progress.  Some employers may have (more so in the public sector), others not.

 

Whatever the differing opinions are government is clearly of the view that progress has been completely insufficient.

 

This view is patently evidenced in the fact that the proposed amendments now provide for sector – specific numerical targets.

 

The Minister of Labour, in consultation with the stakeholders of a particular sector, will set employment equity sector – specific targets. The commission stated that sector – specific targets were necessary because business was not achieving the demanding targets determined on the basis of the nationally economic population (EAP).

 

From this one could surmize that the statutory targets will not necessarily be pegged against the EAP data.  The Commission has indicated that it may use current statistics as to what has already been achieved in certain sectors.  It is envisaged that eighteen sectors will be identified.  Publication of the sectors and sector – specific targets is imminent.

 

Public hearings are being conducted into the proposed legislative amendments and the regulations.  The focus is on the introduction of the regulatory requirements for the promulgation of the new Section 53 (to ensure that companies who contract with the state comply in full with the EEA), and on the setting of numerically based sector targets.  A template for the submission of public comments (by 21 November 2018) is available on the Department of Labour’s website.

 

The Employment Equity Amendment Bill, 2018 was published on 21 September 2018.

 

In the executive summary thereto it is stated that “employers tend to only use EAP distribution as a long term benchmark for the setting of self-imposed targets….there is not short-to-medium term benchmarks for the setting of numerical targets and goals…”

 

“…..in the light of this it became prudent to promulgate Section 53 of the Act, which was never previously promulgated”, (albeit that it appeared since inception of the EEA).  In essence, the state will not contract with an employer which is not certified to be compliant.

 

In support of the proposal of sector – specific targets, Section 14 (voluntary compliance) of the EEA is proposed to be deleted, and the proposed new Section 15 A reads as follows –

 

15A Establishment of sectoral targets

 

(1)       The Minister may publish a notice in the Gazette identifying national economic sectors for the purposes of this Act, having regard to any relevant code contained in the Standard Industrial Classification of all Economic Activities published by Statistics South Africa.

 

(2)   The Minister may, after consulting the relevant sectors and with the advice of the Commission, for the purpose of ensuring the equitable representation of suitably qualified people from designated groups at all occupational levels in the workforce, by notice in the Gazette set numerical targets for any sector or part of a sector identified in terms of subsection (1).

 

(3)   A notice issued in terms of subsection (2) may set different numerical targets for different occupational levels, or regions within a sector or on the basis of any other relevant factor.

 

(4)   A draft of any notice that the Minister proposes to issue in terms of subsection (3) must be published in the Gazette and interested parties must be permitted at least 30 days to comment on the draft notice.

 

(5)   The Minister may issue regulations prescribing the criteria to be taken into account in determining a numerical target in terms of subsection (2)”.

 

Section 20 (employment equity plan) is proposed to be amended to record -

 

Section 20 is amended by the insertion of the following after subsection (2) –

 

 “(2A) The numerical goals set by an employer in terms of subsection (2) must comply with any sectoral target in terms of section 15A that applies it. “

 

 

Section 42 (Assessment of Compliance) is proposed to be amended to read –

 

“42 Assessment of compliance

(1)    In determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General or any person or body applying this Act may, in addition to the factors stated in section 15, take the following into account:

(a)   The extent to which suitably qualified people from and amongst the different designated groups are equitably represented within each occupational level in that employer\\\'s workforce in relation to the demographic profile of the national [and] or regional economically active population;

(aA)  whether or not the employer has achieved any sectoral target set in terms of   section 15A applicable to that employer;

(b)    reasonable steps taken by a designated employer to train suitably qualified people  from the designated groups;

(c)   reasonable steps taken by a designated employer to implement its employment equity plan;

(d)   the extent to which the designated employer has made progress in eliminating employment barriers that adversely affect people from designated groups;

(dA)  reasonable steps taken by an employer to appoint and promote suitably qualified  people from the designated groups; and

(e)       any other prescribed factor.”

 

For more information on the proposed changes, contact one of our experienced consultants.  


Kusile Consulting Services 

011 609 2630

kusile@yourside.co.za 

 




SAHRC FINDINGS ON AFFIRMATIVE ACTION
2018/10/17

Dear Clients 


On 14 September 2018 the Minister of Labour noted that the SAHRC had made various recommendations regarding its findings that the country’s affirmative action and employment equity policies were unconstitutional.

 

The SAHRC gave government six months to report back to the SAHRC and to provide recommendations.

 

The SAHRC considered the definition of “designated groups” and South Africa’s system of data disaggregation, which it said are not in compliance with constitutional and international labour law obligations.

 

The SAHRC stated that “Governments failure to measure the impact of various affirmative action measures on the basis of need and disaggregated data, especially the extent to which such measures advance indigenous peoples and people with disabilities is also a failure of international legal conventions”.

 

The SAHRC outlined its findings as follows:


  • The definition of designated groups as contained in the Employment Equity Act, and the current system of disaggregation of data could give rise to new imbalances in the labour market.

  • Affirmative action measures must be targeted at groups and individuals who are subject to unfair discrimination, to eventually achieve substantive equality and a society based on non-racialism and non-sexism.

  • Decisions based on insufficiently disaggregated data fail to target persons or categories of persons who have been disadvantaged by unfair discrimination, as required by the three-pronged test for affirmative action.

  • Without first taking the characteristics of groups into account, varying degrees of disadvantage and the possible intersectionality of multiple forms of discrimination (based on race, ethnicity, gender or social origin) faced by members of vaguely categorised groups, cannot be identified.

  • As such, the SAHRC’s finds that the (EEA) be amended to target more nuanced groups on the basis of need and should take into account social and economic indicators.

  • Once the objective of affirmative action, namely substantive equality, is achieved, temporary special measures should cease. However, given the persistence of gross inequality in South Africa – and despite policies aimed at radical socio-economic transformation – much remains to be done before this goal is reached. Currently, special measures in the employment equity context raise several concerns in respect of the requirement for affirmative action to promote equality.

  • It is therefore clear that affirmative action and reasonable accommodation are designed to both provide initial economic opportunities to disadvantaged groups by prioritising their appointment but continue to apply once people from such groups have entered the workforce.
  •  

The SAHRC’s findings came out just before the publication of the proposal amendments to the Employment Equity Act, more specifically the proposed sector – specific numerical goals.

 

With the SAHRC findings pending it remains to be seen if the proposed amendments to the Employment Equity Act will be delayed, subject to the findings of the SAHRC having been taken account of.


For more information on this topical discussion, please do not hesitate to contact one of our experienced consultants.  


Kusile Consulting Services 

Tel:  011 609 2630




Decriminalisation of Dagga
2018/10/03

Dear Clients 


Recently the Constitutional Court decriminalised the personal and private use of cannabis aka dagga by adults and Employers seems to be in a frenzy about the use of dagga in the workplace.

 

As an employer you probably have many questions, some of these questions may well be: How do I deal with an employee who is under the influence of dagga, or, what do I do when one of my employees appears to be under the influence of dagga? or, may an employee use dagga whilst on duty? Does it mean because the Constitutional Court decriminalised the personal use of dagga that it is now accepted in a workplace? 

 

When considering the above questions, the first point that needs to be dealt with is that personal and private use has been decriminalised.  Does this mean an employee may now during working hours or at the company’s premises make use of dagga, the answer is NO.  When dealing with narcotics in general (including dagga) the dangers must be considered. When considering a factory environment, the risk is even more.  What about when operating moving machinery?  We are of the view that the use of the substance has been decriminalised, not legalised and the Constitutional Court has given Parliament two (2) years to ensure that the necessary legislation is in place.  Public use has not been decriminalised or legalised for that matter.

 

What is the requirements placed on the Employer?


In simple terms, the use of dagga and any other substance must be treated as is with the use of alcohol.  This means that if an employee has a dependency problem this must a) be reported to the employer and b) the employer may have to provide assistance, like in a case of an alcoholic.  The employer should include the use of substances and or specifically dagga in their policies and ensure that all employees are well aware of such policies.  In the event of employers not having such policy in place, the suggestion is to create a substance abuse policy and to ensure this is brought to the attention of all employees.  This policy will then deal not only with the private and personal use of dagga but also with the use of substances in general in the workplace and also reporting for duty under the influence.  All employees, after being made aware of the policy will then also be advised of the formal disciplinary measures if and when such a policy is breached.

 

Do you have such a policy?  If not contact one of our experienced consultants to either draft such a policy or to review your current and existing policies to ensure that you are covered. 


Kusile Consulting Services 

Tel:  011 609 2630




What does the Con Court Judgment on TES really mean?
2018/08/06

ON YOUR MARKS, GET TES…GO…!


ASSIGN CONSTITUTIONAL COURT JUDGEMENT (26 JULY 2018)


Misconceptions abound.  Initially the private employment sector stated that the judgment “went against the industry” – quoting (from the judgment) that after the three (3) month period the client becomes the sole employer.  To the layperson, or most, this does suggest that the client “becomes the employer” (per se). 

Other headlines read…..

“Labour brokers have been dealt a major blow after the Constitutional Court ruled on Thursday that they were not dual employers when their clients absorbed contract workers as permanent staff”.  To most, “absorbed” suggests “transferred”.

“clients of labour brokers have to hire contractors who earn below R205,433.30 annually, after three months”……”the court ruled that clients of labour brokers were sole employers…..”

“…the highest court in the land has confirmed …that the client becomes the sole employer of the worker by virtue of Section 198A (3) (b) …”

“..subsequently (after the three (3) months) the client becomes the sole employer….. “

“the death knell of labour brokers”

“effectively the client becomes the sole employer after three (3) months…..”

“the court favours the view that once the deeming provision kicks in the temporary employees are effectively “transferred” to the client …”

“the constitutional court has confirmed that temporary workers  employed through labour brokers are permanent employees of the main employer after three months’ work…..”

“the constitutional court favoured the first approach and, therefore, effectively means the company or business where a worker is placed by a labour broker becomes the sole employer of that worker upon completion of three months of service, if that employee earns below R205 433.30 a year….”

“…..the court ruling pulls the wind out of the hated labour broker practice and puts an end to a precarious situation….(of) a dual relationship…”

“after that period the company, where the employee was placed by the labour broker, becomes the “sole employer”.  This means companies are obligated to provide former temporal employees with permanent contracts after the three-month period lapses…”

“an employee contracted through a labour broker to a client firm for more than three months, becomes an employee of the firm…..”

The crisp issue is whether, under the Labour Relations Act, and after the kicking in of the deeming provision (Section 189 A (3) (b)), a situation of sole employment exists (the placed staff member being employed by the client to the exclusion of the TES), or whether a situation of dual employment exists (the staff member being employed concurrently by the TES and the client).

The court phrased the issue as… “The issue before us is what happens to the employment relationship under the Labour Relations Act between the placed employee and the TES once this deeming provision kicks in …. does Section 198 A (3) (b) give rise to a dual employment relationship…or does it create a sole employment relationship between the employee and the client for the purposes of the Labour Relations Act?”

The (narrow) issue before the court was thus only this question.

The emphasis is on “under the/for the purposes of the Labour Relations Act”.

With reference to Section 198 (4A) (joint and several liability) the court stated that “the section provides that while the client is the deemed employer, the employee may still claim against the TES as long as there is still a contract between the TES and the employee.  This is eminently sensible considering that the TES may still remunerate the employee” (my emphasis).

Paragraphs 63 and 64 of the judgment read as follows:-

“In other words, before the 2014 Amendments, a claim had to be brought against the TES first.  The client would be held liable by operation of law if the TES failed to comply with its obligations.  Under section 198(4A), however, the client’s liability ceases to be “default liability”.  The client is deemed the employer of the placed worker and can thus be sued directly in the CCMA or the Labour Court.  In this way, section 198(4A) offers placed workers more protection than section 198(4)’s joint and several liability protection.  It also allows an employee to sue a TES directly, despite it not being an employer.

A TES’s liability only lasts as long as its relationship with the client and while it (rather than the client) continues to remunerate the worker.  Nothing in law prevents the client and the TES from terminating their contractual relationship upon the triggering of section 198A (3) (b), with the client opting to remunerate the placed employees directly.  If this happens, the TES that placed the worker will cease to be a TES in respect of that worker because it will no longer meet the requirement in section 198(1) of remunerating the worker.  The TES will then fall out of the relationship entirely.”

Post the deeming provision therefore, and for as long as the TES continues to remunerate the employee, only the client may be sued, in terms of or under the Labour Relations Act, the TES being excused from liability, in terms of or under the Labour Relations Act.

At paragraph 75 of the judgment the court states that “there is no transfer to a new employment relationship but rather a change in the statutory attribution of responsibility as employer within the same triangular relationship.”  The fact that the client becomes the sole employer, for the purpose of the Labour Relations Act, does not mean or imply a transfer.

The TES may post the deeming provision continue to employ the employee in terms of the law of contract and continue to remunerate the employee.  For as long as the TES continues to remunerate the employee, the TES’s liability continues.

It is thus only on a statutory level (ie under the Labour Relations Act) that the relationship between the TES and the employee is changed or removed.

Accordingly the client does not become the sole employer (other than for the purposes of the Labour Relations Act), there is no transfer of the employment relationship to the client, and the client is not required to employ (contractually speaking) the employees, permanently or otherwise.

Effectively the client becomes the sole employer, but for the purposes of the Labour Relations Act only.

What is thus clear is that the client is or will be the sole employer in law in respect of any matter regulated under the Labour Relations Act, whether it be of an individual labour law nature or of a collective labour law nature.

On the individual labour law front this means, inter alia, that the client will be required to act fairly – significantly procedurally so in that in the past the TES would normally conduct the required employment relations procedures.  This would pertain to all forms of unfair labour practices (like the provision of benefits, suspension, promotion, demotion and disciplinary action short of dismissal).  It also pertains to all dismissals whether for reasons of misconduct, incapacity or operational requirements (of the client).

On the collective labour law front, and whilst Sections 21 (8) (b) (v) and 21 (8D) (12) at present, and somewhat incongruently, consider the employee to be the employee of the TES, the client will be required to respond to and comply with the provisions of the Labour Relations Act regarding an approach by a trade union or trade unions to exercise organizational rights (eg the deductions of union dues (which is, again, incongruent with the judgement recognising that the TES may continue to remunerate the employee and administer payroll), access, election and recognition of trade union representatives (shop stewards)).  Likewise the client would by the employer in terms of collective bargaining, mutual interest disputes declared and strike action.

The Basic Conditions of the Employment Act makes specific reference to a TES, but the judgment did not deal with the question or dispute at hand in so far as the Basic Conditions of the Employment Act is concerned.  The Basic Conditions of the Employment Act defines a TES in the same (or very similar) words to the Labour Relations Act. Sectoral Determinations are provided for under the Basic Conditions of the Employment Act. Some Sectoral Determinations provide that the TES and the client are jointly and severally liable to comply with the determination in respect of its employees (its meaning the TES). Litigation under the Basic Conditions of the Employment Act is thus anticipated.

The judgment also does not traverse the provisions of the Employment Equity Act (the court was not required to).

Section 57 (1) of the Employment Equity Act has always provided that, for the purposes of affirmative action, the employees of the TES are deemed to be the employee of the client where that employee’s employment with the client is of indefinite duration or for a period of three months or longer.

If the judgment is applied to the Employment Equity Act then logic says that Section 57 would be required to be interpreted to mean that the client is the sole employer, under the Employment Equity Act, and accordingly its affirmative action measures, numerical goods per all occupational levels and employment equity plans would (genuinely) apply to TES employees, as if they were employees of the client.

Section 57 (2) of the Employment Equity Act clearly distinguishes between the TES and client as separate employers.  When the sole employer interpretation under the Labour Relations Act becomes operative then one would ask what happens to Section 57 (2), which provides that where the TES, on the instructions of a client, commits an act of unfair discrimination, both the TES and the client are jointly and severally liable.  Logic, but not the current text, says that the client would be solely liable, under the Employment Equity Act.

The 2015 amendments to the Employment Equity Act provide for the meaning of unfair discrimination to include a difference in terms of conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any arbitrary ground.

If the employee (notwithstanding and despite the provisions of Section 198 A (5) of the Labour Relations Act-which provides that after the three month period the deemed employee must be treated on the whole not less favourably than an employee of the client performing the same work) claims as much then, again, logic says that the client is liable once the deeming provision (as interpreted under the Labour Relations Act) becomes operative.  Otherwise litigation in this regard would conceivably be against the TES – ie the opposite of under the Labour Relations Act.

Likewise the question is against whom do allegations of sexual harassment, which is a specific form of discrimination under the Employment Equity Act, lie?  Logic, but not the text, says the client.

If and when the client, after the deeming provision becomes effective, terminates its relationship with the TES then there are a number of unanswered questions.

For example, what happens to the employee’s accrued leave or any other accrued benefits?

Also what happens to the employee’s length of service – is it recognized or “transferred” to the client?  An implication down the line could be the client defending a claim of unequal pay for equal work on the basis of length of service, based on the date of termination of the relationship with the TES, the employee arguing that service with the TES should be recognized (unless the employee had resigned from employ of the TES and entered into a new contract of employment with the client).

Also, the client may embark on a retrenchment exercise.  If the relationship with the TES had been terminated, then again the questions is what is the employee’s length of service – in respect of both fair selection for retrenchment (LIFO) and the calculation of severance pay.  Severance pay is provided for in the Labour Relations Act in that it is required to be consulted on  The Basic Conditions of  Employment Act, however, regulates the calculation of severance pay (as  do many bargaining council agreements and which agreements have their source in the Labour Relations act, not the Basic Conditions of the Employment Act). The client would want to rely on the statutory minimum provision in the Basic Conditions of the Employment Act when calculating severance pay.  The employee may however insist on the client’s agreements or policy on severance pay provisions, where they are more favourable.  Also, the employee may demand severance pay from the TES at the point of the deeming provision – not that this is legally correct. The TES may then ask the client to foot the bill as it (the TES) has not accrued for it.

From the above the obvious question is what are the benefits of continuing to utilize the services of a TES post the deeming provision?

Other than payroll administration there would appear to be few.  The question of course is what is the cost of payroll administration, versus the traditional mark-up charged by the TES.

The TES may have access to the requisite pool of labour and skills.  It could thus procure persons in accordance with the genuine flexibility requirements of the client.  If the business circumstances and current practices are such that the three month period will always be exceeded, then the deliberate rolling of employee contracts to avoid the deeming provision will no doubt be frowned upon.  Section 198 A (3) (b) of the Labour Relations Act does not talk to three consecutive months or to three months in the aggregate / in total.  It is unlikely that any mechanism to avoid three months will pass muster.

Genuine flexibility requirements are the foundation of the legitimate use of a TES.  Traditionally the employees of the client are not employed on an as and when required basis. With the sole employer interpretation under the Labour Relations Act, and where the relationship with the TES has been terminated, it would no longer be a given that ex TES employees can be engaged on terms, different to that of the client, whereby  the employee is automatically  on some variable time arrangement or subject to unilaterally imposed short time. This would have to be agreed, at least consulted on. If the relationship with the TES continues then these type of flexibility arrangements continue in respect of the employee’s contract of employment with the TES, at least before the deeming provision kicks in.  Post the deeming provision it is conceivable that the employee may rely on the provisions of Section 198 A (5) to argue that working on a variable time basis is less favourable.

There are thus many unanswered questions. The business model requires to be revisited and various questions asked. What are the core staffing requirements? What are variable time requirements and variable time contract options? What are the casual labour requirements? Where can fixed term contracts be legitimately utilized and managed? And, of course, what are the cost implications in terms of increased pay rates and employee benefits – either as contractual employees of the client, or by virtue of the provisions of Section 198 A (5)?


A strategic workshop and action plan is required.  No hasty decisions, like “transferring” all TES employees and employing them “permanently” on the “same terms and conditions”, must be taken, nor do they need to be.

 

Gauge the distance of the race before you jump the start.

For further information please do not hesitate to contact one of our experienced Consultants. 

 

Kind regards

Kusile Consulting Services

Tel: 0116092630

Email: kusile@yourside.co.za

 




Labour Brokers - Section 198A(3)(b)... dual vs sole employer
2018/07/26

Dear Clients 

Today (26 July 2018) the Constitutional Court found that the interpretation of Section 198A(3)(b) is that a SOLE EMPLOYER relationship exists.  

Below please refer to the media summary issued by the Constitutional Court on this specific section.  For more information or to receive the full judgment please do not hesitate to contact tanyab@yourside.co.za / kusile@yourside.co.za.  


Media Summary: 

The following explanatory note is provided to assist media in reporting this case and is not binding on the Constitutional Court or any member of the Court. 

On 26 July 2018 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against an order of the Labour Appeal Court (LAC).  The case concerned the interpretation of Section 198A(3)(b) of the Labour Relations Act 66 of 1995 (LRA) and whether this deeming provision resulted in a sole employment relationship between a placed worker and a client or a dual employment relationship between a Temporary Employment Service (TES), a placed worker who has worked for a period in excess of three months is no longer performing a temporary service and the client, as opposed to the TES, becomes the sole employer of the worker by virtue of Section 198A(3)(b) of the LRA.  

In 2015, Assign Services, a TES, placed 22 workers with Krost Shelving and Racking (Pty) Ltd (Krost), a number of whom were members of the National Union of Metalworkers of South Africa (NUMSA).  The placed workers provided services to Krost for a period exceeding three months on a full time basis.  Assign Services\'  view was that section 198A(3)(b) created a duel employer relationship, while NUMSA contended that a sole employer relationship resulted form this section.  The Commission for Conciliation, Mediation and Arbitration (CCMA) supported NUMSAs sole employer interpretation.  

In the Labour Court it was held that a proper reading of the section could not support the sole employer relationship, in which both the TES and the client have rights and obligations in respect of the workers.  In an appeal, by NUMSA, to the LAC it was found that the sole employer interpretation best protected the rights  of placed workers and promoted the purpose of the LRA.  

Writing for the majority of the Constitutional Court, Dlodlo AJ, held that the purpose of Section 198A must be contextualized within the right to fair labour practices in Section 23 of the Constitution and the purpose of the LRA as a whole.  The majority found that, on an interpretation of Sections 198(2) and 198A(3)(b), for the first three months the TES is the employer and then subsequent to that time lapse the client becomes the sole employer.  The majority found that the language used by the legislature in Section 198A(3)(b) of the LRA is plain and that when the language is interpreted in the context, it supports the sole employer interpretation.  In the result, the Constitutional Court granted leave to appeal but dismissed the appeal with costs.    

For more information please do not hesitate to contact one of our experienced consultants.  

Kusile Consulting Services 
Tel: 011 609 2630
Email: kusile@yourside.co.za 




Strike Action - 25 April 2018
2018/04/24

Dear Clients 

During the month of April 2018 Gauteng and other areas has seen a lot of protest action.  On 27 March 2018 notice was served by SAFTU and affiliated Registered Trade Unions of intended protected strike action to take place on Wednesday the 25th of April 2018 commencing at 10h00.

 

According to reports thousands of workers are expected to take to the streets and to “make the country ungovernable”.  On 12 April 2018 the federation handed over a memorandum of demands to parliament in support of the strike action. 

 

It is noted that Section 77 of the Labour Relations Act allows employees to partake in protected strike action and the processes were followed hence the strike being protected.  Because the strike is protected, employees may partake in the strike action whether they are part of SAFTU or non-unionised. 

 

What does this mean for business

 

Firstly the principle ‘no work, no pay’ will be enforced.  Employers therefore have to decide what they are to do.  If they decide to close for the day then, in the absence of any agreement between employer and employee, employees are entitled to pay for the day on the basis that they (or some of them) are tendering their services.  Those employees who tell the employer they are going to be absent do so on the basis of “no work no pay”- unless the employer simply turns a blind eye, which is not recommended.  There may be individual cases where employees claim they wished to come to work but where prevented from doing so. If the decision is to close then the employer should discuss and agree the arrangements.  For example it could be agreed that employees take leave or unpaid leave.  In the absence of any agreement it is business as usual for all companies and all cases dealt with separately

 

 

Why are SAFTU taking to the streets?

 

Firstly Parliament is currently considering amendments to the Labour Relations Act, the Basic Conditions of Employment Act and the National Minimum Wage Bill which was gazetted some time ago.  Some of these changes is focusing on strike action and how strike action will become more difficult to institute.  It is furthermore proposed that the Labour Relations Act may allow for the CCMA to intervene in strikes that are a) deemed to be too lengthy and b) violent. 

 

The next issue is, as covered briefly above, is the National Minimum Wage.  Various organisations has agreed with NEDLAC on the proposed minimum wage of R20.00 per hour and SAFTU now objects to this claiming that the rate is simply too low.  Although it is noted that the National Minimum Wage is a mechanism to start a process of implementing a National Minimum Wage it is claimed to be an “insult” to members of SAFTU and others. 

 

The third and final issue (that we are aware of) is NEDLAC membership.  As is common knowledge to some SAFTU remains to be excluded on membership for NEDLAC.  It is noted that SAFTU does not comply with the requirements for membership with NEDLAC in that these requirements include audited membership figures and financial statements.  SAFTU claims that because the union is still “quite new” they are unable to provide the required information. 

 

It is further noted that organisations such as COSATU, NACTU and FEDUSA will not be partaking in the strike for various reasons.  Whilst some agree that the R20.00 per hour minimum wage is “inadequate it is a starting point to improve worker’s lives”, others agree that at least 40% of South African workers are earning below the R20.00 per hour figure and this will be a benefit to many employees and a benefit to South African Labour.  Furthermore that “the amendments to the Labour Relations Act is not a dramatic change to the labour landscape” as they have already been provided for in legislation it’s simply a case of enforcement.  


Should you require any further assistance or information on this please feel free to contact one of our experienced consultants.  


Kind regards

Tanya Barnard 

For and on behalf of Kusile 

Tel: 011 609 2630

Cell: 082 328 7101

Email: tanyab@yourside.co.za / kusile@yourside.co.za 




Domestic Sector Minimum Wages
2018/01/10

Notice has been issued with regards to Sectoral Determination 7 (Domestic Worker Sector of South Africa).   On 15 December 2017 the Minister issued the minimum wages for the Domestic Worker Sector.  When referring to the Government Gazette (No. 41326) two Tables are provided for, “Table 1” and “Table 2”.


WHAT’S THE DIFFERENCE BETWEEN THESE TWO TABLES?

Table 1 refers to Domestic Workers who work more than 27 ordinary hours per week and Table 2 refers to Domestic Workers who work 27 ordinary hours or less per week. 

 

TABLE 1 – MINIMUM RATES: (EMPLOYEES WORKING MORE THAN 27 ORDINARY HOURS PER WEEK) 

The minimum rates are set as follows:

Hourly Rate                           R    13.05

Weekly Rate                          R  587.40

Monthly Rate                         R 2545.22

 

TABLE 2– MINIMUM RATES: (EMPLOYEES WORKING 27 ORDINARY HOURS OR LESS PER WEEK)

 The minimum rates are set as follows:

Hourly Rate                           R    15.28

Weekly Rate                         R  412.60

Monthly Rate                        R 1787.80

 

The minimum rates differ per geographical area.  The above rates are for the areas of: Bergrivier Local Municipality, Breederivier Local Municipality, Buffalo City Local Municipality, Cape Agulhas Local Municipality, Cederberg Local Municipality, City of Cape Town, City of Johannesburg Metropolitan Municipality, City of Tshwane Metropolitan Municipality, Drakenstein Local Municipality, Ekurhulen Metropolitan Municipality, Emalahleni Local Municipality, Emfuleni Local Municipality, Ethekwini Metropolitan Unicity, Gamagara Local Municipality, George Local Municipality, Hibiscus Coast Local Municipality, Karoo Hoogland Local Municipality, Kgatelopele Local Municipality, Khara Hais Local Municipality, Knysna Local Municipality, Kungwini Local Municipality, Kouga Local Municipality, Langeberg Local Municipality, Lesedi Local Municipality,  Makana Local Municipality, Mangaung Local Municipality, Matzikama Local Municipality, Metsimaholo Local Municipality, Middelburg Local Municipality, Midvaal Local Municipality, Mngeni Local Municipality, Mogale Local Municipality, Mosselbaai Local Municipality, Msunduzi Local Municipality, Mtubatu Local Municipality, Nama Khoi Local Municipality, Nelson Mandela, Nokeng tsa Taemane Local Municipality, Oudtshoorn Local Municipality, Overstrand Local Municipality, Plettenbergbaai Local Municipality, Potchefstroom Local Municipality, Randfontein Local Municipality, Richtersveld Local Municipality, Saldanha Bay Local Municipality, Sol Plaatjie Local Municipality, Stellenbosch Local Municipality, Swartland Local Municipality, Swellendam Local Municipality, Theewaterskloof Local Municipality, Umdoni Local Municipality, uMhlathuze Local Municipality and Witzenberg Local Municipality.

 

Should you or your organisation not fall within any of the above mentioned areas contact Ms Tanya Barnard (082 328 7101) or Mr Gavin Mulvenna (082 891 7093) to find out what the applicable minimum rates for your area would be.


Kusile Consulting Services

Tel: 011 609 2630 

Email: tanyab@yourside.co.za / kusile@yourside.co.za 

Your partner in strategic employee relations.  





New Year - New proposed Legislation - Parental Leave
2018/01/01

Is it fair for only biological mothers to receive maternity leave or should “other types of parents” also have the right to “special leave”.  What about same sex partners?  Read our snippet below on the proposed changes contained in the Labour Laws Amendment Bill, specifically in relation to “Parental Leave”

 

Recently the Labour Court highlighted shortfalls within the Basic Conditions of Employment Act regarding “protection to all categories of employees who are parents”.  It is a known fact that the Basic Conditions of Employment Act only makes provision for maternity leave for female employees and Family Responsibility Leave for any employee when a child is born (amongst other provisions). The debate was is should “any type of parent” be entitled to some form of leave. The Labour Laws Amendment Bill has thus been drafted for public comment. 

 

The Bill includes the following new definitions and meanings:  

a)         “Adoptive parent” which means a person who has adopted a child in terms of any law, as prescribed in Section 1 of the Children’s Act;

b)         A “Prospective adoptive parent” which means a person who complies with the requirements set out in Section 231 (2) of the Children’s Act;

c)         A “commissioning parent” is any person who enters into a surrogate motherhood agreement with a surrogate mother, as prescribed in terms of Section 1 of the Children’s Act;

d)         A “surrogate motherhood agreement” means an agreement between a surrogate mother and a commissioning parent in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent and in which the surrogate mother undertakes to hand over such a child to the commissioning parent upon its birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent as prescribed in terms of Section 1 of the Children’s Act. 

 

What does the Bill propose?

 

Essentially the Bill introduces and distinguishes between “Parental Leave” and “Adoption Leave” as proposed amendments to the Basic Conditions of Employment Act.  The Bill proposes that an employee is entitled to at least ten (10) consecutive days parental leave from the day that the employee’s child is born, the day that an adoption order is granted or the day that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child, whichever occurs first. The Bill further proposes that all reference to Family Responsibility Leave for the birth of a child be removed and that Family Responsibility will now only apply when a child is sick (other than the normal provisions for Family Responsibility Leave).

 

Secondly the Bill proposes that an employee who is an adoptive parent of a child below the age of two years is entitled to adoption leave of at least ten (10) weeks consecutively OR parental leave referred to above (i.e. ten (10) days).  Leave may commence on the date the adoption order is granted, or that a child is placed in the care of the prospective adoptive parent by a competent court, pending finalisation of an adoption order in respect of that child, whichever occurs first.

 

The Bill provides in terms of Section 25B(7) that if a child is placed in the care of two prospective adoptive parents then one of the adoptive parents may apply for parental leave (i.e. 10 days) and the other for adoption leave (i.e. 10 weeks). 

 

The Bill further provides for “Commissioning Parental Leave” which provides for an employee who is a commissioning parent in a surrogate motherhood agreement.  The commissioning parent is entitled to ten (10) weeks commissioning parental leave or parental leave of 10 days.  Leave may commence on the date the child is born. 

 

What does “OR” mean between the different types of leave?  In the event that two parents (whether commissioning parents or adoptive parents) apply for leave in terms of the provisions above then this means that one parent may take 10 days parental leave and the other parent may take 10 weeks adoption / commissioning parental leave.  This will become a regulatory issue in terms of the relevant departments in the Department of Labour, however, as an employer you may receive a request from the Department of Labour requesting to report on what “type” of leave a parent has applied for i.e. parental leave or adoption / commissioning parental leave. 

 

How would an employee receive payment for the above mentioned leave?

 

If an employee is a UIF contributor then payment for parental, adoption and commissioning parental leave benefits will be claimed from the UIF.  Parental, adoption and commissioning parental benefits must be paid at a rate of 66% of earnings of the beneficiary at the date of application subject to the maximum income threshold. A Collective Agreement in terms of unionised employers may not reduce an employee’s entitlement to any of the above mentioned leave. 

 

The proposed commencement date of the Labour Laws Amendment Act is June 2018.

 

There are certain requirements for employees to qualify for the above mentioned leave as well as UIF payments. For more information on the requirements please contact one of our experienced consultants.  



Kusile Consulting Services 

Tel:      011 609 2630
E-mail: kusile@yourside.co.za 

Your partner in strategic employee relations.  

Kusile Consulting Services’ origins date back to its establishment in 1980 as a pioneer management consultancy in the ever changing and dynamic field of employee relations. Our expertise is founded on years of experience at the forefront of strategic labour relations in a diverse array of industries and sectors.  The value of our proposition encapsulates the human resources value chain from recruitment to termination of the employment relationship. Our ability to align your people management and development to your strategic business objectives and to provide practical solutions guarantees you bottom line results. Our quality, integrity and array of customised, integrated and accredited services distinguish us as your preferred business partner. Experience effective hands on management of your human resources - invest now and be assured - we are your partner in strategic employee relations.




Your perception is our reality... our payroll knowledge… your peace of mind!
2017/12/01

Dear Clients 

Businesses face many challenges on a daily basis, and business owners are often looking for ways to streamline processes and focus on the tasks that will have the greatest impact on their goals. One of the way in which a business owner can keep focused on what s/he does best, is to outsource their payroll.


At Kusile Consulting Services we offer a professional payroll outsourcing service. Our service is conducted by payroll specialists who instill knowledge into every project, big or small.


Kusile Consulting Services offers Payroll services including:


  • Processing of Weekly, Fortnightly or Monthly Payrolls;
  • Monthly SARS returns – EMP201;
  • Payroll and related services including IRP5s and bi-annual EMP501 Reconciliations;
  • Employee leave;
  • UI19 and Certificate of Service;
  • WCA - Return of earnings;
  • Month end Reports;
  • Confidential payslips delivered prior to payday or sent electronically.  

For more information about our outsourced payroll offering, please feel free to contact:  Lauren Parker at laurenp@yourside.co.za or call (011) 609 – 2630.  For further information visit our website:  www.kusileconsultingservices.co.za


Kusile Consulting Services 

Your partner in strategic employee relations.  

Kusile Consulting Services’ origins date back to its establishment in 1980 as a pioneer management consultancy in the ever changing and dynamic field of employee relations. Our expertise is founded on years of experience at the forefront of strategic labour relations in a diverse array of industries and sectors.  The value of our proposition encapsulates the human resources value chain from recruitment to termination of the employment relationship. Our ability to align your people management and development to your strategic business objectives and to provide practical solutions guarantees you bottom line results. Our quality, integrity and array of customised, integrated and accredited services distinguish us as your preferred business partner. 

Experience effective hands on management of your human resources - invest now and be assured - we are your partner in strategic employee relations.




Strike Action - 27 September 2017
2017/09/26

COSATU general secretary Bheki Ntshalintshali confirmed that a national strike is planned for the 27th of September 2017.  The strike is to stand up against state capture, corruption and job losses linked to the President and the controversial Gupta family. Ntshalintshali believes there is no need to wait for the public protector’s report with regards to state capture.    COSATU believes that they have necessary support not only from COSATU members but from the public as well. 


It is important to note that Section 77 of the Labour Relations Act 66 of 1995 makes provision for NEDLAC to be notified, relevant procedures followed and 14 days’ notice to be given in order for the strike to be protected.  The background to COSATU’s strike is that on 17 July 2017 COSATU submitted a Section 77 (1) (d) notice confirming its intention to proceed with a socio-economic protest strike action on 27 September 2017 against State capture and corruption.  It has further been confirmed by NEDLAC that the strike will be protected. 


How does this affect you as an employer? 

In the event that employees decide to partake in the strike or to stay away from work then an employee’s absence from work becomes that of “no work no pay”.  An employer may agree to having an employee apply for annual leave for the participation in protest action, however, disciplinary action will not be fair (unless one deals with misconduct during the protest action). 

 

Should you wish to receive any further advise on the planned protest action please do not hesitate to contact either Gavin on 0828917093 or Tanya on 0823287101. 

 




National Minimum Wage
2017/05/27

Dear Clients 

 

For some time now the national minimum wage has been looming and with great uncertainty to say the least, finally some proposals have been received from the so called “appointed panel”.  The panel’s recommendation is that a national minimum wage be implemented at R3500 per month on a set rate of R20 per hour, calculated on a 40 hour week. The minimum number of hours per day, at this stage, is set at 4 hours per day however, an opposing party argues that the minimum hours per day be set at 6 hours per day.   

 

It was expected that the national minimum wage would be announced in December 2016 and thereafter implemented before the end of June 2017. Unfortunately legislation has not yet been enacted, and the appointed Panel expects this to be done by the 01st of July 2017.

 

The intention is that the national minimum wage must be implemented on the 01st of July 2017 and the last date for compliance would be the 30th of June 2019.  Small businesses will have a further grace period until 30 June 2020.  It is however noted that the proposed law has not yet been signed into law by Parliament.  The implementation of the minimum wage will thus be 01 May 2018.  The 01st of July 2017 should however not be ignored.  More detail in terms of implementation dates will be provided as it becomes available. 

 

Why comply now?

 

One would ask yourself the question “Why comply now if it is only enforceable in 2018?”.  The simplest answer is that one would only comply with a ‘rule’ once it becomes law, at present compliance is not mandatory.

 

What does this mean to you as an individual? 

 

Well… basically that domestic workers and farm workers will be covered in this national minimum wage.  Domestic workers are required in the first year of implementation, to earn 75% of the national minimum wage.  Thereafter the “phasing in” will commence, until such time that a domestic worker earns the national minimum wage (and / or any increases added to the minimum wage). 

 

The “phasing in” period should not be seen as indefinite.  It will be commented on in more detail once the relevant legislation has been enacted.  With regards to farm workers, a minimum of 90% of the national minimum wage needs to be implemented in the first year prior to “phasing in”. 

 

Who will monitor compliance and how?

 

The Panel recommends that the two existing bodies (the Employment Conditions Commission and the Employment Equity Commission), as well as a newly appointed body known as the DWC (Decent Work Commission) be incorporated into one “department” for ensuring compliance with the new legislation. 

 

There will thus be no specific Sectoral Determination to monitor the national minimum wages for e.g. the Metal and Engineering Industries Bargaining Council.  The Basic Conditions of Employment Act 75 of 1997 will be amended in order to accompany this new proposed legislation. 

 

What will happen if I do not comply with these minimum requirements once it becomes law?

 

Provisions have already been made in terms of penalties for non-compliance.  It is not certain as to the amounts at this stage.  We are however led to believe that the penalties will not vary between business and individuals.  Penalties will be calculated on a pro-rata basis from the date of enactment, until compliance with the national minimum wage. 

 

For more information on the national minimum wage please contact one of our experienced consultants. 

 

Kusile’s Offices – 011 609 2630

Or Email: kusile@yourside.co.za




FURTHER PROTEST ACTION PLANNED FOR 12 APRIL 2017
2017/04/11

Dear Clients 

 

Following our snippet on protest action which took place on Friday the 07th of April 2017 we want to bring it to your attention that there are further protests planned for the 12th of April 2017.  

 

Certain news articles indicate that these protests might become weekly protests until President Zuma steps down.  

 

The 12th of April 2017 marks President Zuma\'s 75 birthday and various organisations, including civil societies and political parties, have called for protest action in response to the most recent cabinet reshuffle.  The march destinations vary.

 

Below please find important information sent out to all employers regarding 07 April 2017 which is still applicable in any further protest action.  

 

From an employment point of view protest action is regulated by the Labour Relations Act.  Because the provisions of Section 77 have not been invoked the protest action will be unprotected, in that the matter had to be referred to NEDLAC and 14 days notice should have been provided before any protest action can start.  This means that it is not only a case of “no work no pay” but also a form of misconduct.  If the protest action was protected it would only be a case of no work no pay.

 

Employers therefore have to decide what they are to do.  Employers may feel they want to support the protest, but they need to be aware of the legal consequences of such action.

 

If they decide to close for the day then, in the absence of any agreement between employer and employee, employees are entitled to pay for the day on the basis that they (or some of them) are tendering their services.  Those employees who tell the employer they are going to be absent do so on the basis of “no work no pay”- unless the employer simply turns a blind eye.  

 

If they decide not to close then those employees who are absent make themselves guilty of misconduct.  (The “no work no pay” rule obviously applies – the question of discipline needs to be addressed). There may be individual cases where employees claim they wished to come to work but where prevented from doing so. 

 

If the decision is to close then the employer should discuss and agree the arrangements.  For example it could be agreed that employees take leave or unpaid leave. 

 

In the absence of such agreement then the obvious question which will arise is why did the employer not react to the situation in the same manner as it did previously when there was labour generated protest action, or as it may in the future.  In the past the majority of employers would have chosen to ignore the misconduct element, but would have still enforced the no work no pay rule.  

 

 

If the intended blockades materialise then, from a purely pragmatic point of view, businesses may decide to close.  But then they need to have considered the consequences and ramifications of how they implement their decision. 

 

The employer needs to be aware of any and all blockades in their area in order to determine the way forward with such situations. 

 

For more information call one of our experienced consultants.  

 

Kind Regards
Kusile Consulting Services 

Tel:      011 609 2630
E-mail: kusile@yourside.co.za 

 

Your partner in strategic employee relations.  

Kusile Consulting Services’ origins date back to its establishment in 1980 as a pioneer management consultancy in the ever changing and dynamic field of employee relations. Our expertise is founded on years of experience at the forefront of strategic labour relations in a diverse array of industries and sectors.  The value of our proposition encapsulates the human resources value chain from recruitment to termination of the employment relationship. Our ability to align your people management and development to your strategic business objectives and to provide practical solutions guarantees you bottom line results. Our quality, integrity and array of customised, integrated and accredited services distinguish us as your preferred business partner. Experience effective hands on management of your human resources - invest now and be assured - we are your partner in strategic employee relations.

 




PROTEST ACTION PLANNED FOR FRIDAY 07 APRIL 2017
2017/04/05

Dear Clients 


Various organisations, including civil societies and political parties, have called for protest action in response to the most recent cabinet reshuffle.  The march destinations vary.

 

From an employment point of view protest action is regulated by the Labour Relations Act.  Because the provisions of Section 77 have not been invoked the protest action will be unprotected, in that the matter had to be referred to NEDLAC and 14 days notice should have been provided before any protest action can start.  This means that it is not only a case of “no work no pay” but also a form of misconduct.  If the protest action was protected it would only be a case of no work no pay.

 

Employers therefore have to decide what they are to do.  Employers may feel they want to support the protest, but they need to be aware of the legal consequences of such action.

 

If they decide to close for the day then, in the absence of any agreement between employer and employee, employees are entitled to pay for the day on the basis that they (or some of them) are tendering their services.  Those employees who tell the employer they are going to be absent do so on the basis of “no work no pay”- unless the employer simply turns a blind eye.  

 

If they decide not to close then those employees who are absent make themselves guilty of misconduct.  (The “no work no pay” rule obviously applies – the question of discipline needs to be addressed). There may be individual cases where employees claim they wished to come to work but where prevented from doing so. 

 

If the decision is to close then the employer should discuss and agree the arrangements.  For example it could be agreed that employees take leave or unpaid leave. 

 

In the absence of such agreement then the obvious question which will arise is why did the employer not react to the situation in the same manner as it did previously when there was labour generated protest action, or as it may in the future.  In the past the majority of employers would have chosen to ignore the misconduct element, but would have still enforced the no work no pay rule.  The question is why would this Friday be any different.

 

If the intended blockades materialise then, from a purely pragmatic point of view, businesses may decide to close.  But then they need to have considered the consequences and ramifications of how they implement their decision. 

 

The employer needs to be aware of any and all blockades in their area in order to determine the way forward with such situations. 

 

For more information call one of our experienced consultants.  


Kind Regards
Kusile Consulting Services 

Tel:      011 609 2630
E-mail: kusile@yourside.co.za 


Your partner in strategic employee relations.  

Kusile Consulting Services’ origins date back to its establishment in 1980 as a pioneer management consultancy in the ever changing and dynamic field of employee relations. Our expertise is founded on years of experience at the forefront of strategic labour relations in a diverse array of industries and sectors.  The value of our proposition encapsulates the human resources value chain from recruitment to termination of the employment relationship. Our ability to align your people management and development to your strategic business objectives and to provide practical solutions guarantees you bottom line results. Our quality, integrity and array of customised, integrated and accredited services distinguish us as your preferred business partner. 

Experience effective hands on management of your human resources - invest now and be assured - we are your partner in strategic employee relations.





Happy 2017!
2017/01/04

To all our valued clients 

Welcome back and wishing you a happy new year and all the success for you, your family and your business during the 2017 year.  According to the experts 2017 will be a tough year, however, we are happy to remind you that We are your partner in Strategic Employee Relations and we are always @yourside whenever you need us.   

Our offices are open for business and our consultants a call away! 

Kind regards
The Kusile Team 
Your partner in strategic employee relations.  
Kusile Consulting Services’ origins date back to its establishment in 1980 as a pioneer management consultancy in the ever changing and dynamic field of employee relations. Our expertise is founded on years of experience at the forefront of strategic labour relations in a diverse array of industries and sectors.  The value of our proposition encapsulates the human resources value chain from recruitment to termination of the employment relationship. Our ability to align your people management and development to your strategic business objectives and to provide practical solutions guarantees you bottom line results. Our quality, integrity and array of customised, integrated and accredited services distinguish us as your preferred business partner. 

Experience effective hands on management of your human resources - invest now and be assured - we are your partner in strategic employee relations.




New Domestic Workers Minimum Wages
2016/11/08

Dear Clients

 

We hereby wish to inform you of the new domestic worker minimum wages.  The new rates would be in place from the 01st of December 2016 until the 30th of November 2017. 

 

South Africa’s Domestic Worker Sector is to have a new upwardly adjusted minimum wage with effect from 1 December 2016.  The latest relief ahead of the festive season will be applicable until 30 November 2017. The minimum wage adjustment is in line with the Basic Conditions of Employment Act which is regulated through the Sectoral Determination. Domestic Workers are by law classified as vulnerable, hence the Sectoral Determination governing minimum wage and conditions of employment.

 

The new sectoral determination of domestic workers prescribes that the minimum wages for domestic workers who work more than 27 ordinary hours per week will earn as follows:

 

*Area A (those in major metropolitan areas) will earn:

·         R12.42        - hourly rate, 

·         R559.09      - weekly rate, and 

·         R2422.54    - monthly rate.

 

*Area B (those not mentioned in Area A) will earn:

·         R11.31            - hourly rate, 

·         R508.93          - weekly rate, and 

·         R2205.17        - monthly rate.

 

In terms of Sectoral Determination Area A includes:

 

Bergrivier Local Municipality, Breederivier Local Municipality, Buffalo City Local Municipality, Cape Agulhas Local, Municipality, Cederberg Local Municipality, City of Cape Town, City of Johannesburg Metropolitan Municipality, City of Tshwane Metropolitan Municipality, Drakenstein Local Municipality, Ekurhulen Metropolitan Municipality, Emalahleni Local Municipality, Emfuleni Local Municipality, Ethekwini Metropolitan Unicity, Gamagara Local Municipality, George Local Municipality, Hibiscus Coast Local Municipality, Karoo Hoogland Local Municipality, Kgatelopele Local Municipality, Khara Hais Local Municipality, Knysna Local Municipality, Kungwini Local Municipality, Kouga Local Municipality, Langeberg Local Municipality, Lesedi Local Municipality, Makana Local, Municipality, Mangaung Local Municipality, Matzikama Local Municipality, Metsimaholo Local Municipality, Middelburg Local Municipality, Midvaal Local Municipality, Mngeni Local Municipality, Mogale Local Municipality, Mosselbaai Local Municipality, Msunduzi Local Municipality, Mtubatu Local Municipality, Nama Khoi Local Municipality, Nelson Mandela, Nokeng tsa Taemane Local Municipality, Oudtshoorn Local Municipality, Overstrand Local Municipality, Plettenbergbaai Local Municipality, Potchefstroom Local Municipality, Randfontein Local Municipality, Richtersveld Local Municipality, Saldanha Bay Local Municipality, Sol Plaatjie Local Municipality, Stellenbosch Local Municipality, Swartland Local Municipality, Swellendam Local Municipality, Theewaterskloof, Local Municipality, Umdoni Local Municipality, uMhlathuze Local Municipality and Witzenberg Local Municipality.

 

Domestic workers include housekeepers, gardeners, nannies, domestic drivers among others.  For more information please contact one of our experienced consultants. 

 

Kusile Consulting Services

011 609 2630

Email: kusile@yourside.co.za

Your partner in strategic employee relations 




Legal Representation in the CCMA
2016/10/19

Dear Clients 

For years there has been an argument whether or not legal representation should be allowed in the Commission for Conciliation, Mediation and Arbitration (“CCMA”).  The norm is that registered employers’ organisations and trade unions are allowed to represent provided that the necessary credentials can be proven at the commencement of any proceedings in the CCMA.  In misconduct cases generally an application for legal representation must be made to the presiding commissioner in terms of Rule 25 of the CCMA rules.  Factors that would normally be argued are:

 

a)    - The nature of the questions of law raised by the dispute;

b)   -  The complexity of the dispute;

c)    -  The public interest; and

d)   -   The comparative ability of the opposing parties or their representatives to deal with the dispute. 

 

With this rule in place the sole discretion whether or not to allow a legal representative to represent rested with the commissioner. 

 

However, recently the Labour Court issued an order under case number J645/16 in which it instructed the CCMA to issue a Practice Note in which it advised CCMA Commissioners to use their discretion when being approached by a Non-Profit Organisation like the CWAO (The Casual Workers Advice Office) “or any other party” to represent an Applicant in a dispute.  The CCMA’s Practice Note states that a Commissioner “may condone non-compliance with the provisions of Rule 25 on good cause shown and in the spirit of the LRA to represent a party at CCMA proceedings”.

 

What does this mean?

 

This means that any applicant may be represented by a non-profit entity or “any other person” because the discretion is with the Commissioner.  The likelihood of this request being denied by a Commissioner is slim, especially in cases where for e.g. a qualified Human Resources Manager or someone of the like represents the employer (respondent). 

 

For further information on the practice notes published or detail regarding the right to representation and how this will affect your organisation please contact one of our experienced consultants. 

 

Kusile Consulting Services 

Your partner in strategic employee relations.  
Kusile Consulting Services’ origins date back to its establishment in 1980 as a pioneer management consultancy in the ever changing and dynamic field of employee relations. Our expertise is founded on years of experience at the forefront of strategic labour relations in a diverse array of industries and sectors.  The value of our proposition encapsulates the human resources value chain from recruitment to termination of the employment relationship. Our ability to align your people management and development to your strategic business objectives and to provide practical solutions guarantees you bottom line results. Our quality, integrity and array of customised, integrated and accredited services distinguish us as your preferred business partner. 



Possible Mass Action - National Minimum Wage
2016/06/08

MASS ACTION AFTER MINIMUM WAGE TALKS COLLAPSED

 

The Business Day has reported that Unions are allegedly gearing up for partaking in mass strike action after talks about a new national minimum wage has collapsed.  After numerous sittings negotiations have reached a deadlock with NEDLAC.  The claim is that businesses are too reluctant and government is not doing its bit to steer the process. 

 

It is reported that the ANC had committed to alliance partner, COSATU, that the party would look into the issue of a national minimum wage and that this so called national minimum wage formed part of the governing party’s 2014 manifesto. 

 

Government agrees on the need for a national minimum wage, however, since 2014 there has been no solution to this. 

 

It has further been reported that the discussions included “taking this discussion (minimum wage) to the streets to re-ignite the talks and force business to come to the party”. 

 

The intention is to formalising a dispute regarding the minimum wage and to ensure that the mass action referred to is protected i.e. a protected strike.

 

What does this mean for your business?

 

This means that should mass action be arranged, and same is protected in terms of the necessary rules and procedures, then staff may partake in the “strike”.  This will affect labour, productivity, production and the operations of any business.  The only recourse the employer would have is to implement the rule “no work no pay”.   

 

The bigger picture with a governed minimum wage is that many operations may be forced to close its doors as this minimum wage may have a negative impact not only business but the economy as a whole.

 

Earlier this year in March, Deputy President Cyril Ramaphosa acknowledged the risks associated with introducing a national minimum wage and confirmed that the immediate outcome will likely result in job losses, however, claimed that government would seek to set a minimum wage at a level where instead of a negative impact it would “spur economic growth”.  There are even further claims / talks that Government might implement a very high minimum wage just before the municipal elections!

 

Send us your views on a national minimum wage and how it will impact on your business.  We will draft a response on behalf of business and “let your voices and views be heard”. 

 

For further information about what to do when employees partake in mass action please do not hesitate to contact one of our experienced consultants.  We will keep you updated once new information is made available on this topic.

 

Yours sincerely

 

 

Kusile Consulting Services

Your partner in strategic employee relations.  

Kusile Consulting Services’ origins date back to its establishment in 1980 as a pioneer management consultancy in the ever changing and dynamic field of employee relations. Our expertise is founded on years of experience at the forefront of strategic labour relations in a diverse array of industries and sectors.  The value of our proposition encapsulates the human resources value chain from recruitment to termination of the employment relationship. Our ability to align your people management and development to your strategic business objectives and to provide practical solutions guarantees you bottom line results. Our quality, integrity and array of customised, integrated and accredited services distinguish us as your preferred business partner. 

Experience effective hands on management of your human resources - invest now and be assured - we are your partner in strategic employee relations.

 




Strategic Employment Relations
2016/02/21


“If you want to grow and develop your business, you have to grow and develop the people in your business” - John Povey

 

Whatever business you are in, you need to examine the people side of the organisation with the same strategic care and attention as you would your marketing, sales, production or distribution activities.  This is because however excellent your product and service is, it is only achieved through the people in the enterprise.

 

If business strategy looks at developing markets, products, systems and processes, then it needs to look at people with a strategic approach as well.  Kusile has created a unique approach to employment relations in their client’s business through its HR Value Chain.

Kusile’s approach is to examine each aspect of the HR Value Chain against the business strategy of the client to determine what areas need focus and how to establish an effective programme to cultivate a cohesive approach to managing its people from engagement to separation.

 

Like any other business strategy this is all premised on the core values of the organisation: its vision and mission and its general philosophy about the way it conducts itself.

 

By using Kusile’s unique SELF analysis in developing strategy, clients are able to interrogate their current status against any given value or strategic objective.  The SELF analysis is a structured tool that helps to examine current practices, outside influences and constrictions to execution of the value or objective.  From this analysis it becomes easy to identify the strategic actions that are necessary to accomplish the objective. 

“The ability to break down concepts into simpler elements is a great aid to understanding the issue and provides a framework to develop practical steps to achieve the objective”.

 

Too many people take solutions that have worked in other organisations or other contexts and apply them without considering the unique attributes of the specific client or the situation in which they operate.  We have seen documents like policies cut and pasted from organisations whose philosophy is far removed from that of the client. The result is that the policy reflects values that do not synchronise with those of the client and there is a discord between the principles of the business and the content of the policy.

 

Whilst these may be tried and tested processes that have been successful in the past it does not mean that they fit all situations.  “Gaining a deep understanding of the philosophy and beliefs of the business and the entrepreneurs that drive them is a critical aspect of the success of any employment  relations strategy”

 

The Kusile team will engage to understand the drivers of the business in terms of business strategy, entrepreneurial philosophy and people ethics.  Armed with this appreciation of the ethos of the organisation we can engage in the process to formulate the employment relations strategy in the specific areas of the HR value chain requiring attention.

 

This approach has underpinned the reliability of Kusile’s advice and services and is attested to by the number of clients of many years’ standing.  John says that in the field of employee relations consultancy, to have dozens of clients of more than fifteen years is a true testimony of the value of the relationships we have moulded over the more than thirty five years of our existence.  Having clients for more than thirty years is a true testimony of our strategic approach to addressing the people needs of our clients.

 

If the solutions to labour issues are not linked to and interwoven with business strategy, then they are unlikely to be successful or sustainable. ”It seems like a cliché to say that when our consultants are with a client we feel like a member of their management team, but that is how we feel about our clients. In many cases we have been with the client longer than their current management team” John said.

 

“It has been a very interesting journey over the last thirty years of consulting in labour relations” said John. “From the fervent days of the struggle to the enlightenment of employment equity and skills development, we have been applying a strategic approach to address the needs of our clients.”  One example of this are the wage costing models that enable clients to go into wage negotiations with confidence that they can measure the true impact of their proposals and those of the Union.  “This also provides insight into negotiations strategy by being able to examine the impact of proposals that aid the linkage of items and what can be traded or conceded.”

 

To be able to support our consulting approach with a wide array of relevant, up to date, customised and practical training programmes enables Kusile to fulfill one of its own core beliefs – to internalise skills in their clients.  This is because the consultant cannot take the place of management in developing relationships with employees. “If we are to build sustainable solutions for our clients, they have to be able to carry out the strategy themselves”. As an accredited provider with the Services SETA and ETDPSETA we are able to enhance supervisory, management and skills development competencies in our clients through training as well as practical hands-on advice and guidance.

 

Having been part of the skills development revolution whilst representing the Diamond Polishing industry at the Mining Qualifications Authority, the knowledge and understanding of the objectives of the skills development revolution has enabled Kusile to develop practical approaches to combining employment equity, succession planning and skills development strategies for meaningful engagement and people development. “The development of provider accreditation requirements was a particularly useful contribution to the understanding of outcomes-based education in the workplace.” It is this kind of experience that laid the foundation for the development of Kusile\\\'s wide range of management programmes. 

 

By engaging Kusile Training our clients can proactively address the ever-changing requirements in people management and enjoy the benefits of partnering with one of SA’s leading and longest serving labour consultancies. We create effectiveness in dealing with a range of HR and management topics. We ensure the currency of our training experience by having our knowledgeable consultants facilitate learning thereby ensuring the skills and experience imparted is practical and current.

 

Being able to provide a full array of expertise is another critical aspect of engagement with Kusile as your strategic employment relations partner.  No one person can have all the know-how needed to fulfill the HR function any more.  Kusile provides a team of experienced and accessible consultants who collectively can meet the needs of clients and enable them in the execution of their people strategies. These skills spread from employee relations to recruitment and selection, HR Development, job profiling, assessment, grading, performance management, employment equity, skills development, succession planning, broad-based black economic empowerment, quality and provider accreditation as well as payroll services.

 

“It is the strategic approach, coupled with a passion for people development that has enabled Kusile to have lasting impact in the success of our clients.”


For more information on Kusile\'s HR VALUE CHAIN please contact one of our specialised consultants. 


Kusile Consulting Services 

Your partner in strategic Employee Relationships 

Tel: 011 609 2630

Email: kusile@yourside.co.za 

 

 

 





The Protection of Information Act (POPI) 4 of 2013
2015/03/19

POPI regulates the processing of personal information. POPI was signed into law in November 2013.

POPI promotes the protection of personal information processed by public and private bodies and establishes minimum requirements for the processing of personal information. Privacy and data protection Acts have already existed in other countries for a number of years. 

The Explanatory Memorandum to the POPI Bill states that “……. …. the Bill aims to protect the right to privacy by introducing measures to ensure that personal information of an individual (data subject) is safeguarded when it is processed by responsible parties. The Bill also assists to balance the right to privacy against other rights particularly the right to access to information. 

Personal information broadly means any information relating to a living natural person or juristic person (companies, close corporations etc.), including but not limited to; 

Ø    Contact details (emails, address, telephone)

Ø    Demographic information (age, race, sex, ethically etc.)

Ø    Opinions of and about the person

Ø    Private correspondence

Ø    Biometric information

Ø    History (employment, financial, educational, criminal etc.) 

Processing means anything done with personal information including capturing, collection, storage, usage, dissemination, modification or destruction. 

Accountability for compliance vests with a responsible party meaning a public or private body or any other person which alone or in conjunction with others determines the purpose of and means for processing personal information. 

If your company processes (i.e collects, receives, records, stores, collates, organises, updates, edits, modifies, retrieve, alters, consults, uses, disseminates, distributes, merges, links, erases or destroys) personal information then the implications of POPI need to be fully understood. 

POPI compliance involves capturing the minimum required data, ensuring accuracy and deleting data which is no longer required. Compliance requires identifying personal information and taking reasonable measures to protect the data. 

If your organisation processes personal information then a policy and procedure require to be drafted and implemented so as to avoid non compliance with the provisions of POPI. 

“Personal information” can relate to employees, customers, suppliers – anyone the business interacts with. 

There are eight conditions in POPI – 

Ø    Accountability – assigning ownership in your business

Ø    Processing limitation – processing data for lawful purposes only so as not to infringe privacy

Ø     Purpose specification – only obtaining and retaining data for a specific reason

Ø     Further processing limitation – processing must be compatible with the purpose for which it was collected

Ø     Information quality – ensuring that data is accurate and complete

Ø     Openness – informing individuals that their data/information has been obtained and the purpose thereof

Ø     Security safeguards – ensuring the integrity of personal information via technical and organisational measures

Ø     Data subject participation – an individual has the right to request whether an organisation holds the personal information and to request that the information be deleted 

Given these conditions personal information such as employee and customer data will have to be protected and processed differently in accordance with the law, information will not be permitted to be disclosed without consent,  and data will have to be deleted and destroyed in a controlled manner. 

Responsible parties must have a thorough understanding of POPI so as to be able to manage personal information in compliance with the law. Those tasked with ensuring compliance as responsible parties could include CIO’s and IT managers, governance officers, marketing managers, human resource managers, credit managers, directors, retirement scheme trustees etc. 

A number of considerations will have to be taken into account when designing and implementing POPI policy and procedure: - 

Ø    Organisation structure – appointment of the responsible party

Ø    Technology – identification of personal information electronically store and design of procedures to protect and safeguard personal   information

Ø    Contractual – review all contracts with suppliers, customers to includ personal information protection

Ø    Business – identify processes which involve personal information, including employee information and implement safeguards, for example amended recruitment procedures 

POPI places a number of responsibilities on the entity or responsible person including obtaining consent to process a person’s personal information, notifying persons when their personal information is collected and the purpose for which it is collected, implementing security measures to protect the integrity of information, identifying the legitimate purpose for which personal information is processed, contracting with third parties who process personal information on your behalf to ensure compliance etc. 

Regulation of the POPI will be by means of external enforcement by the Information Protection Regulator and information protection officers. POPI creates criminal offences such as breaching a person’s confidentiality, failing to comply with the Regulator’s enforcement notices or obstructing the Regulator, which offences attract penalties of imprisonment or fines of up to R10 million. Persons whose right to privacy has been infringed may also sue civilly. 

All entities need to plan for the impact and reach of POPI. Policies and procedures are to be designed and implemented. Security measures and safeguards need to be put in place.  The risks need to be assessed and strategy and action plans devised. An implementation framework and compliance assessment/monitoring mechanism are required. 

In implementing the plan minimum requirements will have to be met. Mechanisms used to process personal information will have to be audited so as to ensure the integrity and safekeeping of the information and to avoid its loss or damage. The purpose for which personal information is collected, gathered and processed must be carefully defined so as to ensure it’s lawfulness.The processing of personal information must be limited given the purpose for which it is processed. The information must be relevant to the activities of the entity concerned. Individuals must be advised of the processing. Any personal information processing on behalf of a third party must be for the purpose for which the data was initially processed. Accuracy and completeness of the information must be ensured. The Information Protection Registrar must be notified as and when required. Requests from data subjects must be accommodated. Personal information must be deleted or destroyed once the purpose for its processing is achieved. 

Kusile Consulting Services can assist you with an audit of your human resources and allied practices to ensure preparedness for the requirements of POPI.  Our offering includes the design and compilation of an Internal Handling Policy and POPI Policy/Manual.




Fixed Term Contracts and the amended LRA - What to do?
2015/03/12

Dear Clients 

With the inception of the Labour Relations Act 65 of 2014 on 01 January 2015 new protection is afforded to employees employed on fixed-term contracts of employment. 

The Amendment Act’s provisions which now regulate fixed-term contracts of employment are provided for in the new Section 198B. Section 198B does not apply to employers who employ less than 10 employees or to employers who employ more than 50 employees during the first two years of the employer’s business, or to employees earning more than the statutory remuneration threshold of R205,433.30. It also does not apply to employees employed in terms of a fixed contract which is permitted by any statute, sectoral determination or collective agreement. 

An employer is permitted to employ an employee to whom the new section applies on a fixed term contract or successive fixed term contracts for up to 3 months. (The meaning that will be given to the word “successive” will be critical – there is no specific explanation or provision to the effect that fixed-term contracts may or may not be interpreted by a certain period of time when calculating the 3 months period. The probable interpretation will be that the collective duration of separate fixed term contracts will be utilised to determine whether the 3 month period has been exceeded).  

The employer may employ the employee on a fixed – term contract or successive contracts for longer than 3 months only if the nature of the work for which the employee is employed is of a limited or definite duration or if the employer can demonstrate any other justifiable reason for fixing the term of the contract. (This should surely say “contract or contracts”). Section 198B(4) sets out a non- exhaustive list of a justifiable reasons for fixing the term of the contract. 

Employment in terms of a fixed-term contract concluded in contravention of Section 198B is deemed to be of indefinite duration, unless the nature of the work is of a limited or definite duration or the employer can demonstrate any other justifiable reason for fixing the term of the contract. 

An employee employed on a fixed term contract (should no doubt say “contract or contracts”) for longer than 3 months must not be treated less favourably than an employee employed on a permanent basis performing the same of similar work, unless there is a justifiable reason for different treatment. This provision on treatment applies 3 months after commencement of the Amendment Act, i.e. on 01 April 2015, for fixed term contracts of employment entered into before the commencement of the Amendment Act. (One would think that this provision on treatment would only become effective after the employee is deemed to be permanent, or at least after any longer justifiable duration (as is permitted) – but that is not the way the relevant sub-section is worded. 

Employees employed on fixed term contracts of employment must now be afforded equal opportunity to apply for vacancies. Section 198C also introduces new provisions in respect of part time employees.
There are therefore a number of urgent considerations to be dealt with by employers who utilize fixed-term contracts of employment. These considerations will include assessing what justifiable reasons might exist to extend the duration of fixed-term contracts (for example temporary increases in the volume of work, employment on a specific, limited project etc.), analysing the terms and conditions of employment of fixed-term employees, determining the possibility of concluding a collective agreement with the trade union, analysing fixed term contracts of employment entered into prior to the Amendment Act (the Amendment Act can hardly be retrospectively effective) etc. 

It should also be borne in mind that the existing provisions on the law of dismissal and the concept of reasonable expectation of renewal of a fixed-term contract of employment remain, and in fact now extend the expectation to include an expectation of permanent employment. 

Other questions will relate to the right of the employer to employ the employee on a (fixed term) probationary period and the existing provisions of certain bargaining councils on the utilization of fixed term contracts, which may differ, for example, in respect of the permissible duration of fixed term contracts. 

We have developed an audit mechanism and strategic approach to assist you, proactively and before it is too late, in managing the utilization of fixed-term contracts of employment, at present and into the future. We would welcome the opportunity to discuss our approach with you. 

Kind Regards
Kusile Consulting Services 
Your Partner in Strategic Employee Relations 



Labour Relations Act Effective 01 January 2015
2015/01/14

Dear Clients

Please note that the Minister of Labour issued a notice in the Government Gazette that the date for the amendments to the Labour Relations Act will come in effect on 01 January 2015.  

Kusile Consulting Services will keep you up to date of the changes and how it will affect you and your organisation.  

Yours sincerely 

Kusile Consulting Services

Your partner in strategic employee relations.  





Changes to the Labour Relations Act Strategic Remuneration
2014/12/12

Dear Clients

 

With the imminent changes to the Labour Relations Act and the already promulgated changes to the Employment Equity Act and the recent Labour Appeal Court judgement in Apollo management decision making and discretion in remuneration practices will now be open to challenge.  

 

Accordingly we hereby invite you to a half day session on Strategic Remuneration on Friday 23 January 2015 at 13h00 at Kusile Office Park.  

 

The following will be the topics in discussion: 

 

  • New Employment Equity Act will provide for unfair discrimination claims specifically in respect of terms and conditions of employment - such disputes will be arbitrated; 
  • Case Law Developments - Pay is now included under the definition of \\\"benefits\\\".  Management discretion exercised in respect of benefits will be subject to scrutiny under the unfair labour practice definition; 
  •  Risk for Employers - Remuneration - exercise of management prerogative or discretion is challengeable.  Process followed in exercising discretion may be challenged.  Inconsistent application could lead to adverse awards.  Adverse awards in respect of unfair and discriminatory remuneration policies and practices.  

 

For more information on the Strategic Remuneration session please contact us on 0860KUSILE (0860587453); or email us on kusile@yourside.co.za

 

Yours sincerely

Kusile Consulting Services

Your partner in strategic employee relations.  

Kusile Consulting Services’ origins date back to its establishment in 1980 as a pioneer management consultancy in the ever changing and dynamic field of employee relations. Our expertise is founded on years of experience at the forefront of strategic labour relations in a diverse array of industries and sectors.  The value of our proposition encapsulates the human resources value chain from recruitment to termination of the employment relationship. Our ability to align your people management and development to your strategic business objectives and to provide practical solutions guarantees you bottom line results. Our quality, integrity and array of customised, integrated and accredited services distinguish us as your preferred business partner. 

Experience effective hands on management of your human resources - invest now and be assured - we are your partner in strategic employee relations.

 




IR Training - Do you know what action to take against your employees?
2014/09/18

Kusile Consulting Services is back by popular demand offering IR Training.

This Industrial Relations course comprised of initiating a disciplinary enquiry / hearing and chairing disciplinary enquiries. This course is designed to enable managers to conduct proper disciplinary hearings and to administer disciplinary principles in a fair and consistent manner. 

Kusile Consulting Services leads you through the required procedural and substantive aspects pertaining to disciplinary action principles as contained in the Labour Relations Act and related Codes of Good Practice and recent employment case law.

 

More importantly, managers will realise that the process of implementing discipline, whether resulting in dismissal or simply warnings, need not be a difficult time consuming process.


Come discover some surprising aspects of disciplinary hearings. Just need to bring yourself! We will provide the rest!

When: 29 & 30 September 2014
Where: 20 Terrace Road Edenvale 1609
Who: YOU!!
Cost: R1400.00 per person.  (This fee is for two days training)


RSVP by: 25 September 2014 by contacting 0860KUSILE (587 453) / (011) 609 2630 / 4037 or emailing Tanya / Michelle 
kusile@yourside.co.za 

Note that a maximum of 15 delegates can be accompanied. Training will be confirmed on 26 September 2014 if the desired amount of delegates had been reached.

For more information visiwww.kusileconsultingservices.co.za

Your partner in strategic employee relations.  
Kusile Consulting Services’ origins date back to its establishment in 1980 as a pioneer management consultancy in the ever changing and dynamic field of employee relations. Our expertise is founded on years of experience at the forefront of strategic labour relations in a diverse array of industries and sectors.  The value of our proposition encapsulates the human resources value chain from recruitment to termination of the employment relationship. Our ability to align your people management and development to your strategic business objectives and to provide practical solutions guarantees you bottom line results. Our quality, integrity and array of customised, integrated and accredited services distinguish us as your preferred business partner. 

Experience effective hands on management of your human resources - invest now and be assured - we are your partner in strategic employee relations.





IR Hotline Update - Earnings Threshold
2014/07/09

Dear Clients 


Notice has been issued with regards to the recently released determinations made by the Minister of Labour.  The Minister of Labour has recently released the latest earnings threshold with effect from 01 July 2014 the earnings threshold for the purposes of the Basic Conditions of Employment Act No 75 of 1997 will be increased from R193, 805.00 per annum to R205, 433.00 per annum. This amounts to R17 119.44 (previously R16 150) per month.