EMPLOYMENT GUIDE TO THE AMENDMENTS Cliffe Dekker Hofmeyr is a member DLA Piper Group, an alliance of legal practices

Transcription

1 EMPLOYMENT GUIDE TO THE AMENDMENTS Cliffe Dekker Hofmeyr is a member DLA Piper Group, an alliance of legal practices

2 Victorious warriors win fi rst and then go to war, while defeated warriors go to war fi rst and then seek to win. The Art of War - Sun Tzu South Africa's labour legislation is among the most progressive in the world, and continues to rapidly evolve. However, with progression comes change; most notably to the labour legislation environment. Added to this, the war for talent is growing increasingly complex as economic conditions continue to compel businesses to tighten their processes on attracting, hiring and importantly - retaining the best talent. This dynamic landscape requires experts like Cliffe Dekker Hofmeyr who are at the forefront of this changing employment landscape. Our Employment practice is renowned for their ability to create shared value for our clients and in turn helping them win the war on talent. We know that agility and adaptability is key to achieving and sustaining your organisation's success; and to rewarding and preserving a satisfied work force. By compiling this publication we want you to be a 'victorious warrior' in your understanding of the requirements and implications of the Labour Relations Amendment Bill, Basic Conditions of Employment Act, Employment Equity Act, and the new kid on the block - the Employment Services Act. Let us help you win first - in understanding the impacts of the amendments and subsequently enable you to go confidently forward in the war for talent. Yours sincerely Aadil Patel Employment - National Practice Head T +27 (0) E aadil.patel@dlacdh.com 2 Guide to the amendments 2014

3 OVERVIEW OF THE 2014 AMENDMENTS TO THE SOUTH AFRICAN LABOUR LEGISLATION The legislature during 2013 and at the beginning of 2014 published amendments to the Labour Relations Act, No 66 of 1995 (LRA), the Basic Conditions of Employment Act, No 75 of 1997 (BCEA) and the Employment Equity Act, No 55 of 1998 (EEA) and introduced a completely new act called the Employment Services Act. Some of the main changes in terms of these amendment acts are highlighted in this publication. The labour Relations Amendment Act has been assented to by the President. At the time of preparing this publication the date of commencement had not been published. The Employment Equity Amendment Act commenced on 1 August CHANGES IN TERMS OF THE LABOUR RELATIONS AMENDMENT ACT, ACT 6 OF 2014 AND NOT OCTOBER 6 OF 2014 AUTOMATICALLY UNFAIR DISMISSALS AND MATTERS OF MUTUAL INTEREST (LRA S187(1)(C)) The amendment significantly widens the scope of s187(1)(c) of the LRA, by amending it as follows. The text of the section as it currently stands reads: "a dismissal is automatically unfair if the reason for the dismissal is (c) to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee;" The amended version reads: "a dismissal is automatically unfair if the reason for the dismissal is (c) a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer;" The crucial difference between the current and the amended texts is that it is no longer a requirement for automatic unfairness that the reason for dismissal is the employer's intention to compel the acceptance of a demand. How will this affect retrenchments? Taken literally, the amendments will have the result that a dismissal for operational reasons will be unfair where employees are given an alternative to dismissal, but refuse to accept it. The amendment will also present employers with difficulties when attempting to amend the terms and conditions of employment pursuant to a restructuring. 1 What about the decision in Fry's Metals? The Supreme Court of Appeal in National Union of Metalworkers of South Africa v Fry's Metals (Pty) Ltd 2 gave the current s187(1)(c) a narrow interpretation. The effect was that employers could retrench employees, if the employees were unwilling to agree to changes to the terms of employment (provided that such changes could be justified based on the employer's operational requirements). The amendment's effect and its stated purpose is to nullify the effect of Fry's Metals. The emphasis will be on whether the employee refused to agree to a demand and is dismissed. If so, the dismissal will be automatically unfair. 1 Beerman & Coetzee, "Can an employer still raise the retrenchment fl ag in interest negotiations? The Fry's Metals case under the Labour Relations Amendment Bill 2012" De Jure 45 (2012) Guide to the amendments [2005] 3 All SA 318 (SCA).

4 FIXED TERM CONTRACTS AND A REASONABLE EXPECTATION OF RENEWAL (LRA S186) Is there an obligation on employers to renew fixed term contracts? On termination of a fixed term contract, the failure by an employer to engage an employee on the same (or similar) terms when the employee reasonably expected such a renewal constitutes a dismissal. Unless such a reasonable expectation exists, no right to renewal or permanent employment will be created. Note, however, that additional protections are extended to employees earning below the threshold prescribed from time to time by the Minister in terms of s6(3) of the BCEA [which currently is set at R ] (earnings threshold). These additional protections are explained in the section dealing with non-standard employment that follows hereon. What is the effect of the amendment? Prior to the amendment the best an employee could expect was for a renewal of the fixed term contract on the same or similar terms. The amendment introduces an expectation of permanent employment. Where the employee is able to prove a reasonable expectation of renewal on a permanent basis the employee may now be appointed permanently. Can fixed term contract workers be treated less favourably than permanent workers? Yes, the new requirement of equal treatment for fixed term employees apply only to fixed term employees earning below the earnings threshold. Employers should still take care not to descriminate against groups of employees on listed grounds of descrimination. Can an employer still make use of fixed term contracts? Yes. The proposed s198b relates only to employees earning below the earnings threshold and, even for such employees, provides that an employer may still engage such an employee on a fixed term contract of employment. The period of engagement (of such lower earners) may, however, only exceed three months if the nature of the work for which the employee is engaged is of a limited or definite duration, or if the employer is able to demonstrate any other justifiable reason for fixing the term of contract. The employer bears the onus of proving at any proceedings that there exists a justifiable reason for fixing the term of the contract and that such term was agreed. In the absence of a justifiable reason the employee can be deemed to be a permanent employee. NON-STANDARD EMPLOYMENT (LRA S198) S198 of the LRA deals with the position of Temporary Employment Services (TES), commonly known as labour brokers. In this section we discuss the changes relating to TESs, as contained in the LRAA, and the additional sections which address so-called non-standard employment. It is worth noting that the amendments as contained in ss198a, 198B and 198C will only apply to workers whose earnings fall below the earnings threshold. Does any part of s198 of the LRA survive any of the amendments contained in the LRAA? For the most part, s198 of the LRA has largely remained unchanged. The changes to s198 of the LRA take the form of additions thereto in the LRAA. These additions can be summarised as follows: If it is determined that the client of a TES is jointly and severally liable in terms of the current s198(4) of the LRA, the employee may now institute proceedings against the client or the TES, or both. A labour inspector acting in terms of the provisions of the BCEA may enforce compliance with that Act as against the client or the TES, or both. Any order granted against a client or TES in terms of this section can be enforced against either the client or TES [s198(4a)]. A TES will also need to ensure that its contracts of employment held with its employees are compliant with the provisions of s29 of the BCEA [s198(4b)]. The Commission for Conciliation Mediation and Arbitration (CCMA) and Labour Court are also empowered to determine whether a TES employee's contract complies with obligations imposed by the TES in law [s198(4e)]. All TESs must be registered in terms of the Employment Services Act [s198(4f)]. 4 Guide to the amendments 2014

5 What is the effect of s198a of the LRAA in terms of employees who earn below the earnings threshold? S198A further refines the definition of 'temporary service' to include work by a TES employee for a client to mean work: for a period not exceeding three months; or as a substitute for an employee for a client who is temporarily absent; or in a category of work for any period of time in terms of a collective agreement or by the Minister. A TES employee performing work for a client that does not fall within the definition of 'temporary service' will be deemed to be an employee of the client and employed on an indefinite basis by the client [s198a(3)(b)]. TES employees are also to be treated on the whole not less favourably than permanent employees of the client. The new provisions relating to temporary employment services take effect three months after the commencement of the LRAA. Do the amendments change anything with regard to fixed-term contracts [LRA s198b]? The amendments introduce new provisions regarding the duration and status of fixed-term contracts, and are only applicable to employees earning below the earnings threshold, and are not applicable to higher earners or to small or start-up businesses. Employers will not be able to employ its employees on a fixed-term basis for longer than three months unless it can be shown that a longer fixed-term period is justifiable due to the nature of the work or due to an alternative justifiable reason. Justifiable reasons could include one or more of ten specified reasons listed in the LRAA which includes: 1. project work; 2. student or graduate internships; 3. seasonal work; 4. non-citizens who have been granted a work permit for a defined period; 5. replacement of another employee who is temporarily absent; 6. temporary increases in work volume (expected duration up to 12 months); 7. public works or job creation schemes; 8. positions funded by external sources for limited periods; and 9. after retirement age was reached; 10. for any other justifiable reason. Employees who are employed for a fixed-term period longer than three months, in the absence of a justifiable reason, will be deemed to be a permanent employee. Fixed-term employees employed for longer than three months are to be treated on the whole not less favourably than permanent employees and are also to be guaranteed the same opportunities as permanent employees in terms of vacancies. To the extent that the fixed term contract is entered into for a period of less than three months, the fixed term employee may be treated less favourably than an employee employed on a permanent basis or performing the same or similar work. In the absence of a justifiable reason for the different treatment they must be treated the same after three months. A fixed-term employee who is employed for a period longer than 24 months will be entitled to severance pay amounting to one week's remuneration for each completed year of service. The amendments will take effect three months after the commencement of the LRAA. 5 Guide to the amendments 2014

6 Do the amendments regulate part-time work? Yes, s198c of the LRAA introduces certain protections to part-time employees earning below the threshold. A part-time employee is defined as an "employee who is remunerated wholly or partly by reference to the time the employee works and who works less hours than a comparable full-time employee". Employers are to ensure that part-time employees are treated on the whole not less favourably in comparison to full-time employees and that those part-time employees are provided with the same access to training and skills opportunities that are available to full-time employees. As with fixed-term employees, part-time employees must also be provided with the same opportunities regarding workplace vacancies. A part-time employee will be considered comparable to a full-time employee if the employees are employed in terms of the same type of employment relationship that involves the same or similar kind of work at the same workplace. Who will have jurisdiction to deal with disputes arising from the amendments to s198 of the LRA? S198D of the LRAA empowers the CCMA, or relevant Bargaining Council with jurisdiction, to adjudicate all disputes regarding the interpretation and/or application of ss198a, 198B and 198C. Further, employers will be allowed to treat non-standard employees, being TES, fixed-term and part-time employees, differently to permanent employees with reference to the following differentiating factors: Seniority, experience or length of service; Merit; Quality or quantity of work performed; and/or Any other similar criterion. It is clear that the additions and amendments to s198 of the LRA, as contained in the LRAA, are designed to introduce additional protections to non-standard employees. Importantly, these amendments do not apply to: employees who earn above the earnings threshold; small business; employee who ordinarily work less than 24 hours in a month; or during the first three months of employment. 6 Guide to the amendments 2014

7 ENFORCEMENT OF ARBITRATION AWARDS (LRA S143) What is the effect of the amendment to the LRA dealing with the enforcement of arbitration awards? The amendments to this section intend to further streamline the mechanisms for enforcing arbitration awards of the CCMA and to make these mechanisms more cost effective and accessible to low earning litigants. How does it purport to achieve this? An award for the payment of money that has been certified by the CCMA can be presented to the Deputy-Sheriff for execution if payment is not made. This removes the need for the current practice in terms of which parties first have to have a writ issued by the Labour Court. The enforcement of awards to pay money will now occur in terms of the Rules and Tariffs applicable to the Magistrate's Court, thus simplifying and reducing the costs of execution of awards for the payment of money. In the case of awards such as reinstatement which are enforced by contempt proceedings in the Labour Court, the need to have an arbitration award made an order of the Labour Court before contempt proceedings can be commenced with, is removed. STREAMLINING REVIEWS (LRA S145) Is there a time limit to have a review application heard by the Labour Court? The application must still be initiated within six weeks of the date of the arbitration award. Any applicant must now, within six months of launching the review proceedings, finalise the review so that it is ready to be heard by the Labour Court and a trial date can be applied for. Can the Labour Court condone action which falls out of the six month period? The Court can condone late action but it would be inclined not to. How else are review proceedings affected by the amendments? The institution of review proceedings does not suspend the operation of an arbitration award. The award will be suspended only if the applicant furnishes security to the satisfaction of the Court. In the case of a reinstatement or re-employment order the security must cover 24 months' remuneration and in the case of a compensation order must be equivalent to the amount of compensation ordered. What about prescription of arbitration awards? The various confl icting judgements led to an amendment to the effect that an application to set aside an arbitration award will interrupt the running of prescription in respect of that award. How long will it take for judges to hand down review judgements? The judgements must be delivered 'as soon as reasonably possible'. COLLECTIVE LABOUR LAW The amendment to s21 affects the granting of organisational rights to minority unions. How do minority unions, which do not reach certain thresholds, obtain such rights? Currently if an employer declines any trade union's request for organisational rights, the union may refer a dispute to the CCMA for the Commissioner to determine whether or not the union is entitled to any such rights. A minority union could only resort to industrial action to secure organisational rights in accordance with the Bader Bop Constitutional Court decision. However, the intention of the s21 amendments, specifically, is to lessen the need for minority trade unions to use industrial action to obtain organisational rights. They are now, subject to meeting certain requirements, entitled to at least some rights. Can a commissioner award organisational rights referred to in s14 (trade union representatives) and s16 (disclosure of information) of the LRA to a minority trade union? In terms of the amendment to s21, a commissioner has a discretion in this regard. This discretion, however, is subject to the proviso that the minority trade union must already be sufficiently representative and thus entitled to rights under s12 (access to the workplace), s13 (deduction of union dues), and s15 (leave for trade union activities). Furthermore, the minority trade union may acquire ss14 and 16 rights if it is the only sufficiently representative trade union in the 7 Guide to the amendments 2014

8 workplace that already has ss12,13 and 15 rights. Thus, although a commissioner may award organisational rights to minority trade unions, such unions should nevertheless have substantial membership and effectively be the most representative union in the workplace. The union will lose the ss14 and 16 rights when it is not the most representative union in the workplace anymore. Can a commissioner award organisational rights under ss12, 13, and/or 15 in instances where a union does not meet the threshold established by a collective agreement in terms of s18 of the LRA? S18 provides a collective agreement may be concluded between an employer and a majority trade union(s) to establish a threshold of representativeness required for any other trade union seeking to obtain organisational rights. Another proposed amendment to s21 gives a Commissioner the discretion (not with standing the collective agreement threshold) to award such organisational rights to minority trade unions where to deny them these rights would be unfair. Factors which must be taken into consideration by the Commissioner when resolving a dispute over organisation rights are set out in s21. In addition to the existing requirements, the amendment now also requires the Commissioner to consider the general makeup of the workplace, including the extent to which employees are employed in non-standard forms of employment, such as employees of labour brokers. THE EXTENSION OF COLLECTIVE AGREEMENTS CONCLUDED IN A BARGAINING COUNCIL (LRA S32) Can the Minister of Labour simply extend a collective agreement concluded in a bargaining council to a specific sector? The position before the amendment has been that the Minister was obliged to extend such an agreement when the parties to the Bargaining Council were representative in number of the employees in the sector. The Minister in addition had a discretion to extend the agreement having taken into account a number of other factors. In terms of the amendment to s32(2) where a Bargaining Council requests in writing that the Minister extend a collective agreement concluded in the Council to any non-parties to the collective agreement that are within its registered scope and are identified in the request, the Minister must first within 60 days of receiving such request publish a notice in the Government Gazette calling for comments within 21 days. Only thereafter may the Minister extend the agreement from a specified date and for a specified period thereby making it binding on the non-parties specified in the notice. The requirements for an independent exemption body and an appeal body to exempt employers or classes of employers from some or all of the provisions of such a collective agreement have also been tightened up. 8 Guide to the amendments 2014

9 CHANGES TO PICKETING (LRA S69) Where are employees permitted to picket? Prior to the amendment employees were only allowed to picket in a place to which the public had access or on their employers' premises with its permission. Picketing was not allowed in for instance a shopping centre where the employer traded in one of the shops. In terms of the amendment, s69(2) now provides that employees have the right to picket at a place controlled by someone other than their employer, provided that person has a say in the establishment of the picketing rules. The employees may still picket inside their employer's business premises if they have the necessary and required consent from such employer. An employer may not unreasonably withhold its consent and in the event that he does, a Commissioner of the CCMA may prescribe picketing rules which could provide such consent on the employer's behalf. What if the employer's place of business is situated on property belonging to a third person? In terms of the amendments made to s69, employees may be permitted to picket on property belonging to third parties provided that such third party owner has given its consent for employees to do so. Where the owner has refused such consent, the CCMA may grant such a right to picket provided the owner has had an opportunity to make representations to the CCMA before the CCMA may establish any picketing rules in this regard. Do parties have the right to approach the Labour Court in respect of picketing? Yes. Where a party has referred a dispute over compliance with picketing rules to the CCMA for conciliation, and such dispute remains unresolved, the party may now refer the dispute to the Labour Court for adjudication and enforcement of the rules. 9 Guide to the amendments 2014

10 10 Guide to the amendments 2014

11 CHANGES IN TERMS OF THE EMPLOYMENT EQUITY AMENDMENT ACT UNFAIR DISCRIMINATION On what grounds can an employee claim unfair discrimination in the workplace and will that change? The grounds are race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth. The Employment Equity Amendment Act 47 of 2013 (EEAA) with effect from 1 August 2014 amends s6 of the EEA to include an additional ground for discrimination, being "any other arbitrary ground". The amendments seek to clarify that discrimination is not only prohibited on a ground listed in that section, but also on any other arbitrary ground. This change creates consistency with the terminology used in the LRA that prohibits discriminatory dismissals. Does an employer have to give its employees equal pay for equal work? If so, on what grounds may there be a differentiation in pay? A new s6(4) is added to the EEA, which deals explicitly with unfair discrimination by an employer in respect of the terms and conditions of employment of employees doing the same or similar work or work of equal value. A differentiation based on a prescribed ground listed or any other arbitrary ground will amount to unfair discrimination, unless the employer can show that differences in wages or other conditions of employment are in fact based on fair criteria such as experience, skill, responsibility and the like. The Minister of Labour will be empowered to publish a code of good practice dealing with criteria and methodologies for assessing work of equal value. On 1 August 2014 the Minister indeed published Regulations. Equal work, according to the regulations, will be work that is the same; substantially the same, or of the same value as the work of another employee employed by that employer. The Regulations further indicate how employers should go about determining equal pay disputes: it must first be established (i) whether the work concerned is of equal value; and (ii) whether there is a difference in terms and conditions of employment, including remuneration; and it must then be established whether any difference identified constitutes unfair discrimination, applying the provisions of s11 of the EEA. The Regulations further offer guidance regarding what would constitute work that is of equal value. Factors such as the responsibility demanded of the work; skills required; and the physical, mental and emotional effort required to perform the work as well as the physical conditions under which the work is done, are all relevant (not a closed list). It also provides an indication of the circumstances under which employers may differentiate between the terms and conditions of employment offered to employees who perform work of equal value (eg the individuals' respective seniority or length of service; their respective performance etc). If an employee alleges unfair discrimination based on a listed ground or on any other arbitrary ground, what must an employer prove in order to escape liability? The EEAA revises the burden of proof in unfair discrimination disputes to distinguish between discrimination on listed grounds and discrimination based on an 'arbitrary ground'. If unfair discrimination is alleged on a ground listed in s6(1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination: did not take place as alleged; or is rational and is not unfair, or is otherwise justifiable. 11 Guide to the amendments 2014

12 If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that: the conduct complained of is not rational; the conduct complained of amounts to discrimination; and the discrimination is unfair. A STREAMLINED ENFORCEMENT PROCEDURE IN TERMS OF THE EEAA: 3 Can parties refer unfair discrimination claims to the CCMA for arbitration? In terms of s10(5) of both the previous Act and the Amended Act, any unfair discrimination claim must first be referred to the CCMA for conciliation. In terms of s10(6) of the existing Act, upon non-resolution of the dispute during conciliation, parties would only be able to refer the matter to arbitration if the consent from both sides of the dispute was obtained. In all other circumstances, unfair discrimination claims were to be adjudicated by the Labour Court. In terms of s10(6) of the Amended Act, the adjudication of unfair discrimination claims is more streamlined, as parties to a dispute are given the option to refer the dispute to arbitration at the CCMA under the following circumstances:. Employees may refer disputes to the CCMA for arbitration in terms of s10(6)(b)(i), if the employee's cause of action arises from an allegation of unfair discrimination on the grounds of sexual harassment; Employees who earn less than the earnings threshold will be entitled to refer any discrimination claim to the CCMA for arbitration in terms of s10(6)(b)(ii); and Any party to the dispute may refer the dispute to the CCMA for arbitration in terms of s10(6)(c), if all the parties to the dispute consent thereto. If employees earn more than the above-mentioned amount, they will only be entitled to bring claims based on unfair discrimination arising from sexual harassment to the CCMA for arbitration, unless all parties consent thereto pursuant to s10(6)(c) of the Amended Act. Is a party given the opportunity to either review or appeal an arbitration award handed down by the CCMA regarding an unfair discrimination claim? In terms of s10(8) of the Amended Act: "A person affected by an award of a CCMA commissioner made pursuant to a dispute referred in terms of paragraph (b) of subsection (6) may appeal to the Labour Court within 14 days of the date of the award; provided that the Labour Court, on good cause shown, may extend the period in which a person may appeal." Arbitration awards in unfair discrimination claims will therefore be subject to appeal (as opposed to review). Furthermore, parties only have a period of 14 days (calendar days) after the award is given to give notice of their intention to appeal the award, unless the Labour Court grants a time-extension in this regard. Is there a limit to the compensation which may be awarded by a commissioner of the CCMA in an unfair discrimination dispute? No limit is imposed on the compensation that a commissioner of the CCMA can make in respect of compensation in unfair discrimination cases, but an award of damages, as a separate claim, will be limited to an amount equal to the earnings threshold. Compensation refers to the amounts which Courts or tribunals may award, based on a successful statutory claim, such as compensation for unfair dismissal. Employees could however, independently, and as separate cause of action, rely on a common 'law damages' claim. To the extent that the common law claim so made out is based on contract, damages are normally calculated by reference to the position the claimant would have been in, had the contract been properly performed. Different types of common law claims apply different methods of calculation of damages. Compensation, other than a damages claim, is a discretionary award that is not limited to an actual proven loss and, in fact a claimant need not prove any loss at all to be successful in a claim for compensation - it is sufficient to prove the statutory cause of action such as unfair dismissal. Enforcement of compliance orders The Amended Act does away with objections and appeals against compliance orders issued by inspectors. When there is noncompliance with a compliance order the Department may take the matter directly to the Labour Court. 3 All references to the "previous Act" refer to the Employment Equity Act, 55 of 1998 and all references to the "Amended Act" refer to the Employment Equity Amendment Act, 47 of Guide to the amendments 2014

13 CHANGES IN TERMS OF THE BASIC CONDITIONS OF EMPLOYMENT AMENDMENT ACT, ACT 20 OF 2013 May an employer compel an employee to purchase something in order to do their work (ie uniform)? No. An employer must now provide all items which the employee is expected to have unless it is a scheme in which the employee will derive financial benefit or the price of the goods, products or services provided by the scheme are fair and reasonable. Will the Minister be able to make sectoral determinations for employers and employees who are not covered by any other sectoral determination? Yes. The Minister now has the power to make a blanket determination for employers and employees who are not covered by a sectoral determination. Can a sectoral determination by the Minister now regulate the adjustment of remuneration increases? Yes. The Minister may now provide for the adjustment of remuneration by way of minimum rates or minimum increases. Can a sectoral determination by the Minister apply to sub-contracting? Yes. The Minister may make a sectoral determination to prohibit or regulate task-based work, piecework, homework, sub-contracting and contract work. Can the Minister make a sectoral determination to regulate the threshold for automatic organisational rights of trade unions? Yes, the Minister can, subject to certain provisions, make a sectoral determination that will set the threshold of representativeness through which a trade union will have automatic organisational rights in respect of all workplaces covered by that sectoral determination. Can the Minister make a sectoral determination to regulate the conditions of service of labour tenants? Yes. The Minister may, through a sectoral determination, establish one or more methods for determining the conditions of service for labour tenants who have a right to occupy part of a farm. May the Minister make a sectoral determination to regulate a matter in a sector or area for which a statutory council is established? No. The Minister can only make a sectoral determination in these circumstances if it will cover employees who are covered by a collective agreement concluded in a statutory council regulating matters in respect of which that statutory council has concluded a statutory agreement. The Amendment Act has been assented to but has not been promulgated. 13 Guide to the amendments 2014

14 EMPLOYMENT SERVICES ACT What requirement does a foreign national need to meet to be employed within the Republic of South Africa? The foreign national must produce an applicable and valid work permit, issued in terms of the Immigration Act. Who is considered a foreign national? An individual who is not a South African citizen or does not have a permanent residence permit in terms of the Immigration Act is regarded as a foreign national. What steps need to be taken by the employer before a foreign national can be employed in the Republic of South Africa? It is mandatory that employers satisfy themselves that that there are no South African citizens or permanent residents within the Republic with suitable skills to fill a vacancy, before recruiting a foreign national. It is optional for employers to make use of public employment services or private employment agencies to assist them in recruiting suitable employees who are South African citizens or permanent residents. The employer needs to prepare a skills transfer plan in relation to any position in which a foreign national is employed. The employer has to comply with the Regulations that the Minister may make after consulting with the Employment Services Board. What factors may the Minister take into consideration when making regulations? The Minister may consider any requirement which is consistent with the Immigration Act. The Minister may differentiate between different categories of visas issued in terms of the Immigration Act and different categories of work. What consequences may the employer suffer when employing someone without a valid work permit? The employee will be entitled to enforce any claim that the employee may have in terms of any statute or employment relationship against his or her employer or any person in terms of the law. What are the prohibited acts by employers in respect of foreign nationals? An employer may not require or permit a foreign national to perform any work which such foreign national is not authorised to perform in terms of his or her work permit or to engage in work contrary to the terms of their work permit. 14 Guide to the amendments 2014

15 What is required from employers with respect to the reporting of vacancies and the filling of positions? The Minister may after consulting with the Employment Services Board, make regulations requiring employers to notify the Department of Labour of: any vacancy or new position in their establishment in a manner and within such period as the Minister may determine; the employment of any work seeker referred by a labour centre; and any matter necessary to promote the provision of efficient matching services. A regulation made by the Minister may differentiate between different categories of work and different categories of employers. What is a private employment services agency? They are institutions that will provide job seekers with certain services such as matching job seekers with certain services with available work opportunities, registering job seekers, job vacancies and facilitating other employment opportunities. What is the process to follow for the registration of private employment agencies? Any person wishing to provide employment services must apply to the registrar in the prescribed form and manner in order to register as a private employment agency. The registrar will be an official designated from the Department of Labour by the Minister. The registrar must, within 60 days of the application, issue a private employment agency with a certificate of registration, if the application is successful or a letter containing reasons, notifying the private employment agency that it has not been granted registration, in accordance with the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000). The registration certificate of a private employment agency must specify whether or not the private employment agency is permitted to perform the functions of a temporary employment service. The registrar must maintain in electronic form a register of private employment agencies that have been registered in terms of this Act and must make suitable arrangements for the public to access the register. The private employment agency must display its certificate of registration in a conspicuous place at the premises from where it operates. A person may not operate a private employment agency except in accordance with the provisions of this Act and the terms of its registration. What are the restrictions with respect to the registration of private employment agencies? The criteria for registering private employment agencies will differentiate between private employment agencies - that are registered as temporary employment services; or those that only seek to perform other employment services as contemplated in the Act. 15 Guide to the amendments 2014

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