Labour Law Update. September to October 2011

Transcription

1 Labour Law Update September to October 2011

2 Agenda Legal Overview Recent Amendments Employment Services Bill Basic Conditions of Employment Act Labour Relations Act Employment Equity Act Compensation for Occupational Injuries & Diseases Act Occupational Health & Safety Act Unemployment Insurance Fund (UIF) Immigration Law Protected Disclosures Act Prevention and Combating of Corrupt Activities Act Draft Employment Services Bill New developments in case law on all legislation

3 Legal Overview The Constitution of South Africa, Act 108 of 1996

4 South African legislative framework Labour Relations Unemployment Insurance Fund Employment Equity Immigration Law COIDA Constitution Draft Employment Services bill Basic Conditions of Employment Occupational Health & Safety Act Protected Disclosure P Prevention & combating of corrupt activities

5 The Constitution Section 23 of the Constitution Everyone has the right to fair labour practices Every worker has the right to form and join a trade union, participate in union activities and strike Every trade union, employer s organisation and employer has the right to engage in collective bargaining

6 Bill of Rights Contains several provisions including: Protection against discrimination Protection against forced labour Right to pursue an occupation Right to freedom of association Protection of children against exploitative labour practices

7 Recent Amendments Draft Employment Services Bill Proposed amendments to the LRA, BCEA and EEA Major focus on addressing labour broking Additional amendments have been effected to these acts to achieve the following: To bring them in line with labour law developments To improve the functioning of the CCMA To fulfil our obligations as a member state of the International Labour Organisation (ILO)

8 Employment Services Bill, 2010 Overview of the ESB Seeks to provide a Legal status for Employment Services Defines the role and core functions of public employment services Decent work schemes to promote youth employment Promotion of employment of people with disabilities

9 Employment Services Bill, 2010 Overview of the ESB continued Employment promotion schemes to respond to economic recession, company closures and pending retrenchments or lay-offs Regulation of employment of foreign workers Private Employment Agencies Provision is made for the registration and licensing of Private Employment Agencies for placement and their regulation by the Department

10 Employment Services Bill, 2010 Public employment services The Department to provide services free of charge in to members of the public: match work seekers with available work opportunities; register work seekers register job vacancies facilitate the placement of work seekers with employers advise workers on access to social security benefits Assist the youth, new entrants into the labour market, disabled persons and members of rural communities

11 Employment Services Bill, 2010 Promotion of employment of persons with disabilities Sheltered Employment Factories to be established and must: provide work opportunities for disabled people facilitate on-the-job training for disabled people, leading to qualifications provide technical assistance to enterprises that promote the employment of people with disabilities

12 Employment Services Bill, 2010 Employment information The Department will operate information system: The names, qualifications and previous occupations of work seekers Vacancies in the labour market Available training opportunities Specialised skills and qualifications of work seekers registered on the public employment services system Employers details Employment trends in the country

13 Employment Services Bill, 2010 Employment information: May not compromise the South African citizen s opportunity for employment May not employ a foreign national without the applicable and valid work permit The Minister may publish categories of work within which foreign nationals may be employed.

14 Employment Services Bill, 2010 Employment information: Employers must exhaust the following before recruiting foreign nationals: Make use of the public employment services Submit reasons as to why they cannot employ relevant profiles referred to them by the Department Provide proof that they have tested the local labour market through recruitment campaigns Submit a detailed skills transfer plan in scarce skills categories published by the Minister of Home Affairs in terms of the Immigration Act.

15 Employment Services Bill, 2010 Reporting on vacancies and filling of positions Employers must notify the Department of any vacancy or new position within 14 working days after the position became vacant or created An employer must notify the Director-General of the filling of any vacancy within 14 days of such an appointment

16 Employment Services Bill, 2010 Employment information The Department will develop and operate information system on which it records: the names, qualifications and previous occupations of work seekers vacancies in the labour market training opportunities that are available specialised skills and qualifications possessed by work seekers employers details employment trends in the country.

17 Employment Services Bill, 2010 Private Employment Agencies All private employment agencies to operate under a licence issued by the registrar in terms of this Act. The private employment agency must display the licence in a conspicuous place on its premises.

18 BASIC CONDITIONS OF EMPLOYMENT ACT, 1997

19 Basic Conditions Of Employment Act, 1997 What is does Establishes basic terms and conditions Regulates variation of basic terms Prohibits child labour Covers all SA employees with a few exceptions e.g. Defence Force, volunteers to charity organisations Sets minimum standards parties can improve on them

20 Basic Conditions of Employment Regulation of Working hours The section of the Act that regulate working hours does not apply to: workers in senior management sales staff who travel and regulate their own working hours workers who work less than 24 hours in a month

21 Basic Conditions of Employment Maximum Working Hours Number of days worked per week Ordinary hours per day Maximum Ordinary hours per week more than

22 Basic Conditions of Employment Working Hours Meal Breaks Workers must have a break of 60 minutes after 5 hours work. A written agreement may: reduce meal intervals to 30 minutes eliminate meal intervals for workers who work less than 6 hours a day Rest Periods Workers must have a rest period of 12 hours each day; and 36 consecutive hours each week (must incl Sunday, unless otherwise agreed).

23 Basic Conditions of Employment Working Hours Pay for work on Sundays Entitled to double the wage if don t normally work If normally work then entitled to one and a half times Paid time off to be granted within 1 month

24 Basic Conditions of Employment Working Hours Night Work Workers working between 18h00 and 06h00 must get an allowance, or work reduced hours, and have transport available to them Employees who work regularly after 23:00 and before 6.00 Must be informed of any health and safety hazards Have the right to undergo a medical exam

25 Basic Conditions of Employment Working Hours Overtime An employer may not require or permit an employee to work overtime except by an agreement; to work more than 10 hours overtime a week. An agreement may not require or permit an employee to work more than 12 hours on any day. A collective agreement may increase overtime to fifteen hours per week for up to two months in any period of 12 months. Overtime must be paid at 1.5 times the employee s normal wage or an employee may agree to receive paid time off

26 Basic Conditions of Employment Leave Application: Does not apply to employees who work less than 24 hours a month for an employer Leave Cycle: 12 months immediately following commencement of employment or completion of previous cycle

27 Basic Conditions of Employment Annual Leave Number of leave days 21 consecutive days, or 1 day for every 17 days worked, or 1 hour for every 17 hours worked. * must grant annual leave not later than six months after the end of the annual leave cycle.

28 Basic Conditions of Employment Leave Timing of leave Both the employer and worker should agree to the timing of leave. If they cannot agree, the employer makes the final decision Pay instead of leave Employers may not pay workers instead of granting leave, except on termination of employment.

29 Basic Conditions of Employment Sick Leave An employee is entitled to six weeks paid sick leave in a period of 36 months. During the first six months an employee is entitled to one day s paid sick leave for every 26 days worked. An employer may require a medical certificate before paying an employee who is absent for more than two consecutive days or who is frequently absent.

30 Basic Conditions of Employment Maternity Leave At least 4 months unless agreed, no pay Can receive UIF benefits Commencement is in the month before birth [previously was one month] Cannot work for 6 weeks after birth unless certified fit to do so Entitled to 6 weeks in the event of a miscarriage in the last trimester Employee to attempt to give 4 weeks notice of intention to go on leave state when leaving and when returning

31 Basic Conditions of Employment Maternity Leave Not required to pay employee for maternity leave unless policy of doing so Policy may provide for payment of 60% of normal salary Employee entitled to claim remaining 40% from the Unemployment Insurance Fund Total cannot amount to more than 100% of normal salary Protection of employees before and after child birth

32 Basic Conditions of Employment Family Responsibility Leave Applies to those employed for more than 4 days a week, and at least for 4 months Entitled to 3 paid days a year in the event that: Employees child is born Employees child is sick Employees spouse, life partner, parent, grandparent, child, grandchild or sibling dies No accumulation

33 Basic Conditions of Employment Annual Leave & Public Holidays A public holiday cannot be counted as annual leave.

34 Basic Conditions of Employment Particulars of Employment and remuneration Applies to those who work more than 24 hours a month for an employer

35 Basic Conditions of Employment Written particulars of employment An employer must supply an employee, with the following particulars in writing: Full name and address of the employer Name and occupation of the employee, or a brief description of the work Various places of work Date of employment Ordinary hours of work and days of work Wage or the rate and method of calculating rate for overtime work Any other cash payments

36 Basic Conditions of Employment Written particulars of employment Any payment in kind and the value thereof Frequency of remuneration Any deductions Leave entitlement Period of notice or period of contract Description of any council or sectoral determination which covers the employer s business Period of employment with a previous employer that counts towards the period of employment List of any other documents that form part of the contract, indicating a place where a copy of each may be obtained.

37 Informing employees of their rights An employer must display the employee s rights under this Act in the official languages which are spoken in the workplace Must be displayed at the workplace where it can be read by all employees

38 Basic Conditions of Employment Keeping of records Every employer must keep a record containing the following information: Employee s name and occupation Time worked Remuneration paid Date of birth if under 18 years of age Any other prescribed information

39 Basic Conditions of Employment Information about remuneration The following information must be given in writing when the employee is paid: 1. Employer s name and address 2. Employee s name and occupation 3. Period of payment 4. Remuneration in money 5. Any deduction made from the remuneration; 6. The actual amount paid 7. If relevant,the employee s rate of remuneration and overtime rate

40 Deductions and other acts concerning remuneration An employer may not deduct money unless: 1. The employee agrees in writing to the deduction of a specific debt 2. The deduction is made in terms of a collective agreement, law, court order or arbitration award A fair procedure must be followed before any deductions in respect of damage or loss caused by the employee Employers must pay deductions and employer contributions to benefit funds to the fund within seven days.

41 Basic Condition of Employment Termination of employment Applies only to those who work more than 24 hours per month Contract may terminated on notice of not less than: 1. 1 week if employed for 6 months or less 2. 2 weeks if employed for between 6 months and 1 year 3. 4 weeks if employed for 1 year or more (collective agreement can reduce this to 2 weeks) or if a domestic or farm worker employed for more than 6 months. Notice to be given in writing, unless illiterate, then it must be explained

42 Basic Condition of Employment Termination of employment Employer cannot give notice of termination during any period of leave Instead of giving notice, employer can pay employee the remuneration he would have received had he worked Upon termination, employer must pay for any annual leave accrued and not taken and for any paid time off not taken

43 Basic Condition of Employment Termination of employment Where dismissal is for operational requirements, employer must pay severance pay of at least 1 week for each completed year of service If employee refuses to accept reasonable alternative offer, employer does not have to pay him severance

44 Basic Condition of Employment Termination of employment Employee entitled to certificate of service on termination stating: 1. Employer s full name and address; 2. Date of commencement; 3. Date of termination; 4. Job title and description of work performed; 5. Remuneration of employee on termination; 6. Reason for termination, if requested

45 BCEA and Temporary Employment Services Person who is provided to a client by a TES is the employee of the TES TES is a labour broker so that client doesn t have to deal with employees If TES does not comply with the BCEA or any sectoral determination, the TES and the client are jointly and severally liable

46 Basic Conditions of Employment Amendment Bill, 2010 Changes to the power of the Minister to prescribe thresholds of representativeness of a trade union to have the organizational rights of access to employer premises Minister could set increases to actual wages instead of minimum wages for vulnerable workers Enabling provision will provide the Minister with the power to determine the conditions of labour tenants

47 Basic Conditions of Employment Amendment Bill, 2010 Child labour to align the BCEA with SA s international law obligations i.t.o the International Labour Organisation Convention (No. 182) on the Worst Forms of Child Labour. Strengthening the power of the inspectorate Heavy penalties for offences and contraventions of the Act as well as increased prison terms for employers that do not comply

48 THE LABOUR RELATIONS ACT (LRA), ACT 66 OF 1995

49 The Labour Relations Act Play video The Kenny Kunene Assault

50 The Labour Relations Act (LRA), Act 66 of 1995 Aims to promote economic development, social justice, labour peace and democracy in the workplace. Application Applies to all employers, workers, trade unions and employers organisations, but does not apply to members of: 1.National Defence Force; 2.National Intelligence Agency; or 3.South African Secret Service.

51 The Labour Relations Act Employee vs Independent Contractor An person is considered an employee if he/she: Falls under the control or direction of the employer; Works hours which are subject to the control of another person; Forms part of an organisation; Has worked for another person for an average of at least 40 Hours per month over the last 3 months; Is economically dependant on the employer; Is provided with tools of trade or equipment; or Only works for one employer.

52 The Labour Relations Act Organisations of employers and employees The LRA attempts to strengthen trade union organisation in two ways: 1. By supporting freedom of association rights which enable employees and jobseekers to participate freely in union activities; and 2. By supporting organisational rights which make it easier for unions to organise employees. The LRA also supports the right of employers to join together to form employers organisations.

53 The Labour Relations Act Organisational rights Unions have the right to: Enter an employer s premises to recruit or meet members Hold meetings with employees outside their working hours at the employer s premises Conduct elections or ballots among its members on union matters

54 The Labour Relations Act Industrial action The Act regulates strikes, lock-outs and picketing. It provides certain protections for employers and employees who embark on a lawful strike or lock-out.

55 The Labour Relations Act Industrial action Issues over which employees can strike and employers can lock out: Wage increases A demand to establish or join a bargaining council A demand to recognise a union as a collective bargaining agent A demand for organisational rights A demand to suspend or negotiate unilateral changes to working conditions An unprotected lock-out or unprotected strike by the other party

56 Labour Relations Act Strikes Employees may not be dismissed for going on strike Employers may not get a court interdict to stop the strike Employees do not commit a breach of contract or a delict by going on strike Employers may not institute civil legal proceedings against employees on strike An employer does not have to pay an employee participating in a protected strike

57 Labour Relations Act Dismissals Basic principle right not to be unfairly dismissed Require substantive and procedural fairness: Only 3 grounds recognised Misconduct; Operational requirements (i.e. retrenchments); Incapacity (poor work performance, illness/injury, possibly incompatibility)

58 Labour Relations Act Dismissals Procedural fairness depends on the reason Employer bears the onus of showing dismissal was substantively and procedurally fair Schedule 8 to the LRA: Code of Good Practice: Dismissal ( the Code ) sets out guidelines 59

59 Labour Relations Act Unfair Dismissals Employee takes part in the activities of a union or workplace forum Employee takes part in a protected strike or protest action Employees refuse to accept an employer s offer on a matter of mutual interest, such as a wage increase An employee refuses to do the work of someone who is on a protected strike or a lock-out, unless the work is necessary to prevent danger to life, personal safety and health An employee s pregnancy or any reason related to her pregnancy

60 Labour Relations Act Unfair Dismissals The employee takes (or intends to take) action against an employer An employer dismisses an employee for a reason related to a transfer of the employer s business An employee makes a disclosure in terms of the Protected Disclosures Act 2000 The employee is dismissed on arbitrary grounds, such as the employee s race, age, religion, sex, sexual orientation or family responsibilities.

61 Labour Relations Act Fair Dismissals There are three kinds of fair reason for dismissal 1. Misconduct 2. Incapacity 3. Operational reasons

62 Labour Relations Act Misconduct The employee broke a rule of conduct in the workplace The rule was valid or reasonable The employee knew of the rule or should have known of the rule The employer applied the rule consistently Dismissal is the appropriate step to take against the employee for breaking the rule instead of less serious action like a final written warning or a suspension.

63 Labour Relations Act Misconduct Must deal with on a case by case basis Examples of serious misconduct dishonesty, endangering safety, assault, gross insubordination Advisable to adopt disciplinary code and procedure

64 Labour Relations Act Misconduct Procedures Employer required to investigate Notify employee of charges in an understandable form Notify employee of rights, e.g. representation Allow employee to state his case Allow employee reasonable opportunity to prepare If dismissed, notify employee of right to approach CCMA/bargaining council

65 Labour Relations Act Dismissals During Unprotected Strikes Factors to be taken into account include: How serious the breach of the Act was Whether attempts were made to comply with the Act Whether or not the strike was in response to unjustified conduct by the employer.

66 Labour Relations Act Dismissal of Striking Employees Before dismissing striking employees, an employer should: Contact the union to discuss the employer s intention Give the striking employees a clear ultimatum Give employees enough time to consider the ultimatum Allow the employees an opportunity to make representations which the employer must consider

67 Labour Relations Act Dismissal for Incapacity Often a source of confusion True incapacity is not a disciplinary offence 3 types of incapacity: Inability to perform to required standards; Inability to perform due to illness/injury; and Incompatibility.

68 Labour Relations Act Dismissal for Incapacity Poor work performance Give an appropriate evaluation, training, guidance Hold an investigation Problem cannot be reasonably solved Bad health or Injury If the incapacity is permanent the employer must make a greater effort to accommodate the employee

69 Labour Relations Act Dismissal for operational reasons The main changes introduced by the amendments: individuals who are retrenched may refer a dispute either to arbitration by the CCMA or a council or to the Labour Court for adjudication the consultation process in large scale retrenchments may be facilitated by a person appointed by the CCMA employees involved in a large scale retrenchment may either strike or may refer a dispute over the substantive fairness of the retrenchments to the Labour Court

70 Labour Relations Act Retrenchments The written notice - invitation to consult parties, must disclose Reasons for the dismissals Alternatives considered Number of employees likely to be affected Proposed method for selection of employees When the dismissals are likely to take effect The severance pay proposed Assistance the employer proposes to offer to the employees

71 Labour Relations Act Retrenchments The possibility of future re-employment; The number of employees employed by the employer The number of employees that the employer has dismissed for reasons based on its operational requirements in the last 12 months

72 Labour Relations Act Retrenchments Severance pay Must receive at least one week s remuneration for Every year of completed service from the employer. The consulting party may Reach agreement on a higher amount. An employee who unreasonably refuses to accept an employer s offer of alternative employment with that employer or any other employer is not entitled to severance pay

73 Labour Relations Amendment Bill, 2010 Based on Election Manifesto Avoid exploitation of workers Ensure decent work Protect the employment relationship Regulate contract work, sub-contractors, outsourcing Address problems of labour broking Prohibit certain abusive practices

74 Labour Relations Amendment Bill, 2010 Introduction of a new Employment Services Bill which will address both Private and Public Employment Services New definition of employer and employee, no temporary employment service will be able to be the employer of workers that it places in work. The bill proposes a range of amendments to the provisions that deal with the CCMA to facilitate dispute resolution and enhance the efficiency of the CCMA s operations.

75 Labour Relations Amendment Bill, 2010 Regulating contract work - aims to stop the practice of repeated contracting for short-term periods Employers to justify the use of short-term or fixed term contracts, in place of contracting employees on a permanent basis Proposes to repeal section 198 that deals with Temporary Employment Services in the LRA

76 Main Areas of Amendments Increase regulations to protect the increased levels of informal labour To ensure SA complies with the ILO principles Give effect to Constitutional rights (collective bargaining, equality, anti-discrimination, fair labour practices) Sec 27 and Bill of Rights

77 Collective Bargaining Effect Currently Bargaining councils are a product of employer and union agreements The minister may create Statutory bodies/bargaining Councils even if unions and employers have not reached an agreement These can be extended to non-parties Effect is a broader wage and conditions of employment regulatory framework Higher costs for employer in smaller areas, retrenchments? More inspectors?

78 EMPLOYMENT EQUITY ACT 55 OF 1998

79 Employment Equity Act Application Applies to all employers and workers and protects workers and job seekers from unfair discrimination, and also provides a framework for implementing affirmative action. But not members of the: 1.National Defence Force; 2.National Intelligence Agency; and 3.South African Secret Service. 4.The provisions for affirmative action apply to

80 Employment Equity Act The provisions for affirmative action apply to: employers with 50 or more workers, or whose annual income is more than the amount specified in Schedule 4 of the Act; municipalities; organs of State employers ordered to comply by a bargaining council agreement; any employers who volunteer to comply.

81 Employment Equity Act Prohibition of Unfair Discrimination Employers are not permitted to discriminate unfairly against any employee or applicant The Employer has to take steps to promote equal opportunity by eliminating unfair discrimination Prohibition extends to employment policy and practice free of unfair discrimination: Recruitment and selection procedures; Advertising; Remuneration; Training etc

82 AA Measures: Employment Equity Act Affirmative Action Eliminate barriers Promote diversity Accommodate designated groups Develop and train Preferential treatment

83 Employers must Employment Equity Act Affirmative Action Consult with employees Conduct an analysis Prepare an employment equity plan Report to the Director-General on progress made in the implementation of the plan

84 Plan must: Employment Equity Act Employment Equity Plan Have objectives for each year of the plan Include affirmative action measures Have numerical goals for achieving equitable representation Have a timetable for each year Have internal monitoring and evaluation procedures, including internal dispute resolution mechanisms Identify persons, including senior managers, to monitor and implement the plan.

85 Employment Equity Act Employment Equity Report Fewer than 150 employees 1st report to be submitted to the Director-General within 12 months after the commencement of the Act, thereafter every 2 years on the first working day of October. 150 or more employees 1st report to be submitted 6 months after the commencement of the Act, thereafter every year on the first working day of October.

86 Employment Equity Act Employment Equity Disputes An employee, or applicant for employment, may refer a dispute concerning alleged unfair discrimination (or medical or psychological testing) to the CCMA for conciliation. If a dispute is not resolved at conciliation, a party may refer it to the Labour Court for adjudication. Unfair dismissal disputes in which unfair discrimination is alleged must be dealt with in terms of the LRA. The dismissal must be referred to the CCMA within 30 days

87 Employment Equity Act Enforcement & Legal Proceedings Employee or trade union representatives can monitor contraventions of the Act and report to relevant bodies. Labour Inspectors are authorised to conduct an inspection as provided for in sections 65 and 66 of the BCEA If the designated employer refuses to comply with the written undertaking, the inspector will issue an order to comply The Labour Court has the powers to make any appropriate orders, award compensation, or impose fines The Act protects employees who exercise their rights and obligations under the Act against victimisation, obstruction and undue influence

88 Employment Equity Amendment Bill, 2010 Equal pay for work of equal value prohibit abusive practices, employees who work for the same employer receive the same pay as other employees doing the same work. Strengthening enforcement and compliance - Director General to be empowered to impose fines on non-complying employers (% of annual turnover)

89 COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES ACT, NO 61 OF 1997 (COIDA)

90 COIDA Provides for compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees in the course of their employment, or for death resulting from such injuries or diseases Application All employers; and casual and full-time workers who, as a result of a workplace accident or work-related disease Are injured, disabled, or killed; or become ill

91 COIDA cont Exclusions Workers who are totally or partially disabled for less than 3 days; Members of The South African National Defence Force, or The South African Police Service Any worker guilty of wilful misconduct, unless seriously disabled or killed Anyone employed outside the RSA for 12 or more continuous months Workers working mainly outside the RSA and only temporarily employed in the RSA

92 COIDA OBLIGATIONS OF EMPLOYERS Employer to register with commissioner and to furnish him with particulars Employer to keep record Employer to furnish returns of earnings

93 OCCUPATIONAL HEALTH AND SAFETY ACT NO 181 OF 1993

94 Occupational Health and Safety Purpose: provide for the health and safety of persons at work health and safety of persons in connection with the use of plant and machinery; the protection of persons against hazards to health and safety arising out of or in connection with the activities of persons at work to establish an advisory council for occupational health and safety

95 Occupational Health & Safety Duties of employers to their employees Identify potential hazards and risks while work is being done Establish the precautionary measures to protect workers Provide the necessary information, instructions, training and supervision Not permit anyone to work unless the necessary precautionary measures have been taken, Take steps to ensure everyone complies with the Act. Enforce the necessary control measures Oversee the general supervision workers trained to understand the hazards associated with the work,

96 Occupational Health & Safety Duties of employees Must take care of his/her and other Health and Safety Must cooperate with employer with respect to OHS Must provide information to DOL if they should require it. Must carry out any lawful instruction with regard to OHS. Must comply with the rules and procedures that the employer gives him/her. Must wear the prescribed protective clothing / use the safety equipment where it is required Must report unsafe or unhealthy conditions / incidents to the employer / representative as soon as possible.

97 Occupational Health & Safety Rights of the worker The Right to Information The Right to Participate in Inspections The Right to Comment on Legislation and make Representations The Right not to be Victimised An employer may not dismiss a worker from his service, reduce a worker s salary or reduce a worker s service conditions The Right to Appeal

98 Occupational Health & Safety Health & Safety Representatives Health and Safety representatives are full-time workers nominated or elected and designated in writing by the employer A representative must be designated for every workplace consisting of 20 or more workers.

99 UNEMPLOYMENT INSURANCE CONTRIBUTIONS ACT, NO. 4 OF 2002 To provide for the imposition and collection of contributions for the benefit of the Unemployment Insurance Fund

100 Unemployment Insurance Fund Application The Act applies to all employers and workers, but not to Workers working less than 24 hours a month for an employer Learners Public servants Foreigners working on contract Workers who get a monthly State (old age) pension Workers who only earn commission.

101 Unemployment Insurance Fund Employer Duty to Contribute Every employer & employee must contribute Paid over by the employer Employer must deduct employees contribution Determination of Contribution 1% employee / 1% employer per month

102 Unemployment Insurance Fund It is the duty of the employer to register with the Commissioner It is the duty of the employer to provide particulars each month: The termination of the employment of any employee The appointment of any employee by the employer

103 IMMIGRATION ACT NO

104 Immigration Act Aims at setting in place a new system of immigration control which Ensures that the contribution of foreigners in the labour market does not adversely impact on existing labour standards A policy connection is maintained between foreigners working in South Africa and training of our nationals

105 Immigration Act Work Permits A general work permit may be issued by the Department to a foreigner if the prospective employer- Shows all efforts have been made in a diligent search The prospective employer of the foreign national must produce proof of the applicants skills and experience in line with the job offer Proof of qualification must be provided

106 Immigration Act Work Permits Certificate from a Chartered Accountant must be submitted to the DoL that the terms of employment will not be less favourable The employer shall notify the Department of Home Affairs when such foreigner ceases to be in his/her employ

107 Immigration Act Work Permits A general work permit shall lapse if within six months of issue and within every subsequent year The Department of Home Affairs is also empowered to issue an exceptional skills work permit The provisions which existed under the Aliens Control Act relating to in-house company transfers have been embodied in the intra-company transfer work permit provisions

108 Immigration Act Corporate Permits The Department of Home Affairs is empowered to issue a corporate work permit to a corporate applicant to employ foreigners DOHA, in consultation with the DOL and Trade and Industry must determine the maximum number of foreigners to be employed Certification by a Chartered Accountant that such foreigners will not be employed on terms and conditions inferior to that of South African citizens or residents

109 Limited v CCMA Summary: Immigration Law When the applicant discovered that the respondent (a foreign national) did not have a valid work permit, the applicant terminated his employment. The respondent referred an unfair dismissal dispute to the CCMA and the applicant challenged the court's jurisdiction, contending that respondent was not an "employee" as defined by the Labour Relations Act. The Commissioner ruled that the respondent was an "employee", and that the CCMA had jurisdiction. The applicant took that decision on review

110 PROTECTED DISCLOSURES ACT NO 26 OF 2000

111 The Protected Disclosures Act, 2000 Recognises the value of and need for whistle blowing in South Africa. Aims to create a culture which will facilitate the disclosure of information: Employees relating to criminal and other irregular conduct in the workplace In a responsible manner by providing comprehensive statutory guidelines for the disclosure of such information and protection against any reprisals as a result of such disclosures.

112 The Protected Disclosures Act 2000 The Protected Disclosures Act sets out a clear and simple framework to promote responsible whistle-blowing by: Reassuring workers that silence is not the only safe option providing strong protection for workers who raise concerns internally reinforcing and protecting the right to report concerns to public protection agencies such as the Public Protector and Auditor- General, and protecting more general disclosures provided that there is a valid reason for going wider and that the particular disclosure is a reasonable one.

113 The Protected Disclosures Act Protected Disclosure A disclosure is a protected disclosure under the Protected Disclosures Act if: The disclosure contains information about impropriety and The disclosure has been made to the right person, according to the scheme established by the Act

114 PREVENTION AND COMBATING OF CORRUPT ACTIVITIES ACT

115 Prevention and Combating of Corrupt Activities Act Purpose of the act is Strengthen measures to prevent and combat corruption and corrupt activities to provide for the offence of corruption and offences relating to corrupt activities to provide for investigative measures to establish and endorse a Register to place certain restrictions on persons and enterprises convicted of corrupt activities relating to tenders and contracts

116 Prevention and Combating of Corrupt Activities Act Strengthen measures to prevent and combat corruption and corrupt activities Create the crime of corruption and related crimes Deal with investigations into corruption Create a register to prevent people who use corruption from getting government contracts or tenders Require people in positions of authority to report corruption over R Prevent people in South Africa from using corruption to influence members of the public sector of other countries

117 Prevention and Combating of Corrupt Activities Act What is corruption? Corruption means offering or agreeing to accept a gratification (bribe) in return for granting certain favours. A gratification, or bribe, includes money, gifts, promotion, prevention of a loss, paying off a loan and various other favours which may be offered

118 Prevention and Combating of Corrupt Activities Act How the act relates to an employment relationship? Any employer or employee who: directly or indirectly accepts or agrees or offers to accept any unauthorised gratification or directly or indirectly gives or agrees or offers to give any unauthorised gratification is guilty of the offence of receiving or offering an unauthorised gratification.

119 Victimization Laws that protect employees from victimization when involved in the prevention of corruption : The Protected Disclosures Act (2000) Protects the employee from being fired, demoted or discriminated against after reporting corruption The Labour Relations Act (1995) No employee may be unfairly dismissed. Exposing corruption is not a fair reason to be dismissed The Employment Equity Act (1998) No employee may be discriminated against or victimised for any reason, which includes acting as a whistleblower

120 Thank You Fasset Call Centre